There is a lingering question about whether the executive order on religious freedom Donald Trump signed in the Rose Garden on Thursday—which had been seen as a possible threat to the LGBTQ community but ultimately spared them for now—did something, nothing, or less than nothing. Whatever it is the president ultimately did sign, it bore little to no resemblance to the draft orders that had been circulating on Capitol Hill and that had stirred such angst among progressives. It’s just unclear what this EO actually does. Two of the most controversial provisions—one that would have abetted religious conscience objectors in escaping the Affordable Care Act’s contraceptive coverage mandate and one that would have loosened prohibitions on participation in political campaigns by churches and other tax-exempt groups that accept tax deductible contributions—had been watered down thoroughly by the time Trump was brandishing his pen. So much so, in fact, that by the end of the day Thursday, conservatives were slamming the effort as “meaningless” and “inadequate.” Meanwhile, the ACLU—which had announced earlier in the day that it had planned to file a challenge—simply tweeted: “We thought we’d have to sue Trump today. But it turned out the order signing was an elaborate photo-op with no discernible policy outcome.”
It’s easy to assume that the watering down had something to do with Jared and Ivanka acting as moderating forces on social policy. The more intriguing possibility, though, is that somebody in the Office of Legal Counsel at the Department of Justice or in the White House Counsel’s Office actually took a red pen to provisions that would have clearly raised immediate constitutional and legal problems. You know, that they did their jobs (as opposed, for example, to what happened during the implementation of the haphazard and reckless first Muslim ban). For instance, the order directs the secretary of health and human services merely to “consider” issuing undefined regulations to provide relief from the contraception mandate, within the constraints of “applicable law.” In testimony before the House Oversight Committee on Thursday, Rabbi David Saperstein did a good job of articulating the problem with doing anything to unsettle the rule around religious organizations and politicking, known as the Johnson Amendment:
We will see a massive diversion of campaign funding to houses of worship, which will become slush funds for local, state, and national campaigns. Since churches do not report who their donors are, funneling campaign donations through houses of worship would greatly reduce transparency in election campaigns, thus becoming conduits for dark money and undermining sensible campaign finance rules.
This is, recall, not just about religious speech. It never was.
A lawsuit filed at the end of the day Thursday by the Freedom From Religion Foundation serves as a pretty good road map to what the complaint could have been against changes to these provisions had lawyers not apparently pruned back the draft language reporters were circulating in the days before. The suit includes the now-obligatory catalog of every tweet and statement Trump has ever made about the Johnson Amendment that would have made such changes unconstitutional had he enacted them. Should it be allowed to proceed, this new lawsuit will all but force Justice Department lawyers to stand before a judge and explain that the executive order, as signed, achieves none of those goals and in fact does little more than codify the status quo. This is precisely what happened in the litigation over his sanctuary cities executive order last month, and this would make for a pattern.
One questionable provision directs the secretary of the treasury to ensure that his department, which includes the IRS, “does not take any adverse action” against any person, “house of worship, or other religious organization” because of “speech about moral or political issues from a religious perspective.” If the sentence had stopped there, several more lawsuits would have been filed because of the clear preference given to religious organizations and speech. But, in a crucial qualification, the order now explains that the directive applies only “where speech of similar character” by others has “not ordinarily been treated as participation or intervention in a political campaign” by the IRS. In other words, when a church or religious organization says something about politics or a campaign, the IRS must not treat that as improper electoral advocacy unless it has treated “speech of similar character” as electioneering by a nonreligious group. That calls for equal treatment of religious and nonreligious speech, not preference.
That qualifying language sounds exactly like the type that would be added by career lawyers at the OLC, which traditionally reviews and offers edits on executive orders, and was criticized for failing to adequately review the first Trump order on immigration. Or it could have been added by someone in the White House Counsel’s Office. The point is, it’s not all that hard for lawyers to make an unconstitutional executive order legal. Whether the executive order as modified actually does anything is now between Trump and his lawyers.
The question then becomes whether anyone squared the final order either with the spin put out by White House officials or with the prepared remarks offered in the Rose Garden on Thursday. “For too long the federal government has used the power of the state as a weapon against people of faith, bullying and even punishing Americans for following their religious beliefs,” Trump said grandly. “No one should be censoring sermons or targeting pastors. … We are giving our churches their voices back.” Did Trump know that the executive order would achieve none of the things he had promised on the stump or at the signing ceremony? Or did nobody bother to tell him?
Either answer offers troubling insight into the functioning of this new administration. One possibility is that, knowing full well that the order actually accomplished little or nothing, Trump and other White House officials deliberately misled the press and religious figures in the Rose Garden and across the country. Another possibility is that the White House Counsel’s Office didn’t realize the effect that legalese would have or withheld that information from White House officials and the president. It’s very good that some lawyer somewhere in the federal government apparently did important editing on this executive order. But it’s also very disturbing that the president either doesn’t know what he’s signing or is willing to try to mislead the press and his own supporters about what his orders actually do. A third possibility, that he doesn’t see any difference between what he is saying and what has been written, is not out of the realm of possibility either.
It has become a truism that President Trump has been at war with the law and the courts since his first week in office. Legal minds have been pondering for weeks now whether DOJ or the White House’s own lawyers would have the integrity and commitment to legal norms to occasionally tell the president no. At least in this case, the answer appears to be yes. The days when Steve Bannon and Stephen Miller seemed to be writing executive orders on the backs of executive office napkins may finally be over. That may be somewhat comforting, but it doesn’t change their place in the White House and doesn’t alter the need for continued vigilance.