President Trump at the White House on May 22. Trump announced new guidelines that churches and places of worship are considered essential. | Alex Wong/Getty Images

That’s not legal.

At a press conference Friday afternoon, President Trump announced that he would order churches reopened despite the coronavirus pandemic — something he almost certainly does not have the power to do.

State governors, Trump claimed, need to allow churches to reopen “right now, for this weekend.” He added that “if they don’t do it, I will override the governors.”

Trump also reportedly ordered the Centers for Disease Control and Prevention (CDC) to release guidance for houses of worship seeking to reopen.

There have been several outbreaks of coronavirus that were traced back to church gatherings. In April, at least 70 infections were linked to a church in Sacramento, California. More recently, the CDC determined that “among 92 attendees at a rural Arkansas church during March 6-11, 35 (38%) developed laboratory-confirmed COVID-19, and three persons died.”

Although many governors have either ordered churches closed or restricted gatherings within churches, some governors have allowed places of worship to reopen. There have also been some court challenges to orders closing houses of faith, but the impact of these challenges, at least so far, has largely been marginal.

Trump’s power to override state governments is very limited

State governments, not the White House, have the primary responsibility to decide how their states will react to the pandemic.

Congress could theoretically override some decisions by state governors. The Constitution gives Congress the power to “regulate commerce with foreign nations, and among the several states,” a provision which gives Congress broad authority to regulate the national economy and to remove obstacles to interstate trade. So, if Congress disagreed with a state order closing businesses, it could likely enact a federal law preempting that state order.

But even assuming that churches have a substantial enough impact on interstate commerce that Congress could order them reopened, Trump is not Congress. Trump can invoke existing laws that give the federal executive branch some power to help manage a public health crisis, but those statutes largely permit the federal government to support ongoing state efforts to control a disease, or to quarantine seeking to enter the country or to cross state lines.

Notably, when reporters asked White House press secretary Kayleigh McEnany to identify which provision of federal law permits the president to override a governor’s public health order, McEnany did not do so. Instead, her answer —”the president will strongly encourage every governor to allow churches to reopen” — appeared to concede that Trump only has the power to try to persuade governors to change their policies.

Trump may influence Republican judges to order churches reopened

Yet while Trump almost certainly does not have the lawful authority to order churches reopened, he is the head of the Republican Party and his words are likely to shape the views of many GOP partisans — some of whom are sitting judges.

Under the Supreme Court’s decision in Employment Division v. Smith (1990), churches and other religious institutions may be subjected to the same laws as anyone else, so long as they are not singled out for inferior treatment. As Justice Antonin Scalia wrote for his Court in that case, “the government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, ‘cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.’”

But Smith has fallen out of favor with judicial conservatives, and it is likely that the Supreme Court’s Republican majority will overrule it in a case they are scheduled to hear in the fall. Even if Smith is overruled, however, state governments may still regulate churches — or even close them down — so long as the rules regulating those churches are narrowly tailored to advance a compelling interest, such as preventing the spread of a deadly disease.

While existing law provides that governors may close churches in order to protect human life, it is far from clear that an increasingly conservative judiciary will follow this law. Last month, for example, Trump-appointed Judge Justin Walker wrote a highly partisan opinion that seemed to liken a Kentucky order, which allegedly banned drive-in church services, to tales of slaves being beaten for “attending prayer meetings”

So, while Trump does not have the lawful authority to order churches reopened, his rhetoric is likely to influence politicians and at least some Republican judges. That means that the courts could require churches to reopen long before the virus is under control — potentially leading to new outbreaks like the ones in California and Arkansas.


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Author:

Ian Millhiser

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