I am a Christian, and I practice my faith. As such, I have tremendous sympathy for religious organizations of all faiths that are engaged in battles against restrictions on their faiths. At the same time, I am both a realist and a legal scholar who recognizes that faith does not require the abandonment of logic. For that reason, I am both appalled and horrified that President Trump is threatening to “override” governors’ decisions to declare churches and other houses of worship “non-essential.”
Over the past two weeks, Attorney General William Barr has threatened to take legal action against governors who did side with the federal government’s view on how churches and other religious houses should be treated during the ongoing coronavirus pandemic. Today, President Trump added the strongest statement to date, and, in the process, he has stoked wishful speculation that he will take Eisenhower-esque measures to “override” – a reference to President Eisenhower’s deployment of the U.S. Army’s 101st Airborne Division to enforce the desegregation of schools.
Like much of the Trump administration’s promises, these threats and statements are heavy on rhetoric and light on details. I am not the only legal scholar wondering how President Trump and Attorney General Barr intend to carry out their threats.
When humans are puzzled, they speculate. As I have talked with friends and scholars across the country, no one can articulate a theory on how President Trump’s administration can constitutionally take the actions that he is threatening. I myself have wasted more than a few hours the past few nights staring into my unlit fireplace trying to speculate on a constitutional justification.
The reality is that there is no way that President Trump or his administration can constitutionally follow through on their threats. It does not appear that will stop him from trying though.
Don’t get me wrong. I think that the shutdowns of churches and other religious houses of worship are unconstitutional acts on the part of governors. The governors, and the courts that agree with them, are relying on a 1905 Supreme Court decision called Jacobson v. Massachusetts, 197 U.S. 11 (1905) to justify their pandemic restrictions, thus creating a public health exception to the Constitution. I believe that this reliance is misplaced for many reasons – a few of which I mention below. First, the Supreme Court decided Jacobson before it incorporated the Bill of Rights against the states. Jacobson‘s analytical approach is impossible to reconcile with a Bill of Rights that applies to the states. Second, the Supreme Court did not have occasion to revisit Jacobson after it developed the modern constitutional scrutiny doctrines. Jacobson‘s broad language is impossible to reconcile with modern constitutional doctrine.
Despite the clear unconstitutionality of the governors’ actions despite Jacobson‘s fig leaf, the president and his administration do not have the constitutional authority to intervene in state policy decisions. Addressing Attorney General Barr’s statements first, the federal government lacks what is called Article III standing to sue for civil rights violations. Article III standing requires a concrete and particularized injury to the party bringing the suit. The federal government is not the injured party when individual constitutional rights are violated. The individual whose rights were violated is. Consequently, the federal government lacks the legal basis to sue state governors.
That leaves President Trump’s threats. Frankly, I haven’t the slightest idea of what President Trump has in mind. Based on his tendencies, I am assuming that it is some sort of executive order or other declaration from his administration. Regardless, two insurmountable constitutional obstacles stand in his way. First, there is no question that the Tenth Amendment erects a bar against the federal government – regardless of which branch is doing it – intervening in state policy decisions. Second, while the Fourteenth Amendment “amended” – for lack of a better term – the Tenth Amendment by subordinating what had previously been an absolute state sovereignty structure, it did not empower the President to meddle in state policy decisions in the name of enforcing the Constitution without congressional or judicial authorization. Indeed, Section 5 of the 14th Amendment is immensely clear that Congress – not the president – has the authority to enforce its provisions.
President Trump, Attorney General Barr, nor the numerous scholars who I have talked to have failed to point to a single congressional authorization or a single judicial decision (like Eisenhower did with Brown v. Board of Education) for the vague acts that they are threatening. Even theoretically assuming that the Supreme Court in City of Boerne v. Flores, 521 U.S. 507 (1997) did not declare that the Religious Freedom Restoration Act of 1993 (RFRA) could not be enforced against the states, RFRA was unclear at best on whether it gave the President authority to enforce it or the federal government standing to sue for its enforcement.
In other words, President Trump and his administration lack the constitutional authority to follow through on their threats.
Why does that horrify me? People are chafing against unconstitutional restrictions on their religious liberties and unsympathetic courts. Consequently, the clamor for a solution – any solution – that provides a strong and decisive cure to their ills is loud and robust. Be careful of the side effects of that strong medicine. Clamoring for any solution is a dangerous proposition because any solution may merely represent another dishonest power grab that will be used to supplant liberty at the earliest opportunity.
Centralizing power in the federal government is an even more dangerous proposition, and the reason that we have 50 states with state governments is that they are more answerable to their immediate constituents. Subordinate those states’ policy choices to the whims of the president and his administration, and you lose state and local government. You also lose a president and gain a feudal king.
Don’t believe me? What would have kept President Obama – a former law professor at one of America’s finest law schools – from concluding that gay marriage was constitutionally protected and ordering states to recognize gay marriages? I could provide an endless number of hypotheticals. The point is that the same power that President Trump is claiming to “protect” your liberty will be used to take away your liberty because it subordinates state policy decisions to the whim of all-powerful president and his administration.
I think that our country stands at a constitutional crossroads, and the chances do not look good for it. I am horrified and appalled that our nation has reached the place where its citizens cannot wait, in exchange for a breath of liberty, to trade away the very power that makes our nation’s institutions a government of the people, for the people, and by the people. We live in sad times, and I fear that I will spend my life watching more and more of these types of concessions be made.