//  5/4/17  //  Quick Reactions

Here is the President's Executive Order on "Promoting Free Speech and Religious Liberty."  It is entirely hortatory, and does even less than the White House's modest roll-out last night suggested.  Indeed, it appears to do nothing at all, other than to require three federal agencies to "consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate promulgated under section 300gg-13(a)(4) of title 42, United States Code."

Section 2 is the provision about the Johnson Amendment (which I discussed in detail this morning).  It does not even direct the IRS to exercise “maximum enforcement discretion to alleviate the burden of the Johnson Amendment, which prohibits religious leaders from speaking about politics and candidates from the pulpit,” as last night's White Paper suggested.  Instead, it merely states that "the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury."  

In other words, it merely requires that the governement apply the Johnson Amendment to churches in the same way that it applies that law to other 501(c)(3) organizations.  The Johnson Amendment, however, also requires the leaders of those nonreligious organizations not to engage in partisan political activity in their speech activities on behalf of the organization, as a condition of entitlement to 501(c)(3)'s tax benefits.  As the relevant IRS guidance puts the point, "for their organizations to remain tax exempt under section 501(c)(3), leaders cannot make partisan comments in official organization publications or at official functions of the organization."  (See, for example, Situation 4 of that IRS guidance, describing politcal speech in a regular "My Views" column of the President of a university, and Situation 6, describing such political speech by the Chairman of the Board of a conservation group at a regular board meeting:  both are disqualifying.)  If religious clergy are to be treated equally, well, then, they may not engage in specific partisan speech in church functions, including sermons, lest the organization risk losing its 501(c)(3) status.  Thus, this Executive Order does not even (at least not on its face) suggest that the IRS should not enforce the Johnson Amendment as to candidate-specific speech in churches, or from pulpits--it does precisely the contrary.  (The guidance further explains, however, that the law does not affect speech on political matters by leaders of organizations "speaking for themselves, as individuals."  Nor does it affect speech "about important issues of public policy.")

Even so, as I note in my earlier post, the IRS does not ordinarily take steps against churches even in such cases.

Accordingly, the effect of this section of the E.O. appears to be . . . zero. Turned out to be a big nuthin'. 

No wonder so many of the President's supporters are so disappointed.  In this case, we should be thankful that cooler heads--and good lawyers--in the Administration appear to have prevailed.

 


On Clerkships & Wasted Opportunities

12/23/19  //  Commentary

An HLS Clerkship Blog encapsulates some of the challenges to the profession in light of Trump’s reshaping of the federal judiciary.

Leah Litman

Michigan Law School

Some Additional Thoughts on The ACA Decision

12/19/19  //  Quick Reactions

The U.S. Court of Appeals for the Fifth Circuit just gave the Republican Party a huge and unjustified gift.

Leah Litman

Michigan Law School

The Writing Is on the Wall for Obamacare

12/19/19  //  Commentary

With the Trump administration's support, the Fifth Circuit ruled yesterday that the health-care law contains a constitutional flaw—and that most or all of the law may have to be scrapped.

Nick Bagley

University of Michigan Law School