From Portside <[email protected]>
Subject Trump Ordered States to Open Churches. Can He Do That?
Date May 24, 2020 12:05 AM
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[ The Justice Departments own actions show just how little power
the president has to force the outcome he wants.]
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Josh Gerstein
May 23, 2020
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_ The Justice Department's own actions show just how little power the
president has to force the outcome he wants. _

President Donald Trump gestures as he departs after speaking with
reporters about the coronavirus in the James Brady Press Briefing Room
of the White House on Friday., Alex Brandon/AP Photo


President Donald Trump is making a show of siding with religious
groups in their clashes with state and local authorities — but his
own Justice Department’s actions are exposing the challenges
involved in trying to bring the federal government's power to bear on
the issue.

The president’s sweeping pronouncement Friday that states must treat
all churches and other houses of worship as essential under
coronavirus lockdown orders “right now” was met with a now
familiar chorus of reaction from critics and legal commentators that
he has no authority to issue such a directive.

“The president doesn’t have that power,” said Rachel Laser of
Americans United for Separation of Church and State. “The Tenth
Amendment to the Constitution forbids the federal government from
strongarming the states. These are reckless exaggerations that are
obviously aimed at pandering to his base.”

Some dismissed Trump’s rhetoric as election-year bluster not
tethered to reality.

“President Trump’s statement on its face sounds more like
political grandstanding than any actual enforcement of laws protecting
religious freedom,” said Anthony Romero of the American Civil
Liberties Union. “The states are accorded great deference and, in
fact, the governors are the ones who are in the saddle on most of
these judgment calls, notwithstanding the president’s thoughts and

As is often the case, Trump was long on bravado and short on
explanation for how he planned to force his views on state leaders who
declined to go along.

“Allow these very important, essential places of faith to open right
now for this weekend. If they don’t do it, I will override the
governors,” he insisted, before departing as reporters clamored for
answers about the purported federal mandate.

Even his Harvard Law-trained press secretary, Kayleigh McEnany,
struggled to explain about how the president would implement such an
order, dismissing questions about the idea as “hypothetical” and
lashing out at reporters for their supposed lack of faith.

Despite the lack of detail, the president’s blunt rhetoric put a new
spotlight on the federal government’s most prominent effort to try
to police state and local stay-at-home orders: a drive announced last
month by Attorney General William Barr to pursue those regulations for
potential violations of religious liberty, as well as other
infringements on the rights of Americans.

So far, Trump’s promise to come to the rescue of beleaguered
congregations has translated into only modest action. The Justice
Department has yet to file a lawsuit on behalf of any church,
organization or individual over the impact of state or local lockdown
orders. Before Friday, its only court action was submitting what
amounted to friend-of-the-court briefs in just two pandemic-related
suits involving churches: one against a small Mississippi city and
another against Virginia Gov. Ralph Northam.

The claims the federal government has made in the litigation have also
been modest. Justice Department lawyers did not advance any argument
on par with Trump’s broad assertion Friday that houses of worship
are universally essential. Instead, DOJ attorneys have made the
narrower argument that some churches are being subject to an unfair
double-standard, especially when compared to businesses deemed
essential and allowed to remain open, like liquor stores.

A top federal prosecutor said Friday that tallying up the number of
Justice Department court filings doesn’t take account of how DOJ
lawyers have prompted revision of some onerous local policies simply
by reaching out to mayors and local officials.

“There may have been few lawsuits filed, but there have been a lot
of back-channel, government-to-government calls made,” Zachary
Terwilliger, the U.S. Attorney based in Alexandria, Va., told
POLITICO. “Folks have decided to stand down once they realize
we’re serious and this is not just rhetoric.”

Terwillinger welcomed Trump’s statements Friday and said the idea
that churches are essential has a compelling, common-sense logic to

“If we’re in a situation where we’ve got Wal-Mart open with
social distancing, why not church? This is essential for some
people…. This is as essential as a liquor store, as essential as a
tattoo parlor,” the prosecutor and former senior Justice Department
official said.

Critics said Trump’s comments may not have been tied to any federal
action, but rather to encourage churchgoers and ministers to defy
state officials, precipitating on-the-ground conflicts and bad
publicity that governors would likely avoid by softening their
virus-related activity bans.

Trump’s statements “mislead people and embolden people to defy
important public safety orders and put everyone at risk,” Laser

Trump’s drive to re-open churches comes despite a growing body of
evidence tying church services to serious outbreaks of coronavirus.
Just Tuesday, the Centers for Disease Control released a warning
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church meetings in March where more than a third of 92 attendees wound
up infected. Another 26 members of the community wound up hit by the
virus. Four people died.

Similar church-focused outbreaks have been reported in Washington
state [[link removed]], South
Korea and France. Experts theorize that hand-holding, singing and the
fellowship typical of church services create robust vectors to
transmit the virus, particularly through airborne droplets.

Laser said those episodes undercut the notion that going to church is
just like going to the liquor store or Home Depot. “If you start to
think about the activity, it’s very different than going to purchase
whiskey,” she said. “Liquor stores don’t exist as community
places of gathering where there are going to be exchanges of
germs…The distinction is based in public safety.”

Several institutional and legal hurdles have limited the Justice
Department effort.

One is that Trump and other federal officials have declared states of
emergency over the pandemic that remain in effect. The Justice
Department itself has relied on the threat posed by the outbreak to
justify a series of extraordinary measures taken by the Trump
administration, like shutting down processing of many asylum claims.

Even as they seek to second-guess aspects of state and local policies,
DOJ lawyers have taken care not to dispute that there is a severe
threat to public health.

Romero said the Trump administration’s efforts reek of hypocrisy and
politics. “On the one hand, they want to say churches should be open
for prayer. On other hand, they allow lawful abortion clinics to be
shut down. The hypocrisy in choosing what states’ rights they will
challenge which ones to acquiesce to is completely rooted in their own
partisan agenda,” the ACLU executive director said.

Another challenge for the feds is that many states and local
governments traditionally have more legal latitude to issue orders and
regulations that affect religion than the federal government does.

The Religious Freedom Restoration Act passed by Congress in 1993 gave
churches and individuals the right to sue over even widely applicable
laws that interfere with religion. However, in 1997, the Supreme Court
ruled it was unconstitutional to apply the new federal law to states
or municipalities. Some states have passed their own RFRA laws, but
they don’t all go as far as the federal one.

Yet another hurdle is that the Justice Department typically conducts
some investigation before filing a suit. Lawyers for religious-rights
advocacy groups, on the other hand, can and have taken accounts from
pastors and rushed to court for a restraining order within a matter of
days or hours.

Organizations like the Alliance Defending Freedom, Liberty Counsel and
the Thomas More Society, have embraced such cases with gusto, filing a
slew of challenges across the country.

Laser said most of the efforts to win temporary restraining orders
against the lockdowns have fizzled, but at least two federal appeals
courts—the New Orleans-based 5th Circuit and the Cincinnati-based
6th Circuit—have stepped in to allow churches to proceed with their

Not all judges are convinced the legal challenges are even the
business of federal courts or the Justice Department. The trial-court
judge handling the Justice Department-backed suit a Virginia church
brought against Northam said in an order Thursday that she believes
the dispute belongs in state court, where the pastor can raise a First
Amendment defense to the criminal citation he received.

“Although the existence of a pandemic might be considered
extraordinary, it does not call for federal intervention in state
proceedings,” Obama appointee Arenda Allen wrote
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tweaking conservatives by adopting states-rights principles trumpeted
decades ago by opponents of the civil rights movement.

“If anything, the once-in-a-century nature of a pandemic strengthens
the important state interests that counsel against federal
intervention,” she added.

As Trump spoke out on the issue Friday—both at an appearance in the
briefing room and to veterans staging an annual Memorial Day
motorcycle rally in Washington—the Justice Department did mount what
appeared to be a flurry of activity. Terwilliger issued a press
[[link removed]]saying
the department is “assessing its options” for joining in the
Virginia church’s appeal of Arenda’s refusal to issue a
restraining order and preliminary injunction in that case.

Also Friday, the U.S. Attorney in Los Angeles sent a letter to Los
Angeles Mayor Eric Garcetti expressing concern about comments about
possibly continuing lockdown orders there for months. And federal
prosecutors in Illinois filed a new statement of interest
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in a state lawmaker’s suit against Gov. J.B. Pritzker over his
stay-at-home orders.

The latest actions didn’t impress some legal observers.

“I think the Illinois filing today is pretty powerful evidence that
this is all just for show. Not only is DOJ not initiating any cases
itself, but it’s making a big deal out of showing up in some of
these cases only to make technical arguments about state law,” said
University of Texas law professor Stephen Vladeck. “It’s about as
weak a federal intervention in these cases as could’ve been
expected, and leaves one wondering if the point is just to make it
look like the Trump administration is doing more than nothing.”

Romero said some of the department’s actions could backfire against
the government. He noted that the letter to Garcetti is
extraordinarily vague, but he vowed to leverage its call for a return
to normalcy in some of the ACLU’s pending litigation on behalf of
abortion providers.

“It doesn’t say anything, but it could be quite useful against
states who want to close down abortion services,” the ACLU chief

Terwilliger defended the department efforts, saying they were ramping
up in part because measures that might have been justified as the
outbreak surged in March are now less justifiable as the virus recedes
in most areas. State and local officials need to adjust, he said.

“There’s a difference between now and March 23,” he said. “The
strategies and regulations need to take into account that we’re in a
different place now."


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