Donald Trump's Latest Executive Order


Some of you may already be aware of a new executive order signed by President Trump yesterday, on Thursday, May 4th, 2017. The order is commonly thought to be a slap in the face to the Johnson Amendment and many think it unconstitutional - but what does the order actually mean?

From the text of the order itself:
Section 1.  Policy.  It shall be the policy of the executive branch to vigorously enforce Federal law's robust protections for religious freedom.  The Founders envisioned a Nation in which religious voices and views were integral to a vibrant public square, and in which religious people and institutions were free to practice their faith without fear of discrimination or retaliation by the Federal Government.  For that reason, the United States Constitution enshrines and protects the fundamental right to religious liberty as Americans' first freedom.  Federal law protects the freedom of Americans and their organizations to exercise religion and participate fully in civic life without undue interference by the Federal Government.  The executive branch will honor and enforce those protections.

Section 1 of this order is titled "Policy" as you can see, and what it states is essentially that people used to be free to practice their faith - and it implies that people are no longer free to do so publicly. This is a bit of a lie, you are perfectly free to construct a church and practice your faith, or hold sessions of worship and learning in your own home, and practice essentially any religion you want. You can go online and discuss things with believers, buy books and read and do research into your specific theology, whatever you want!

Trump's base, which he is likely trying to appease however, believe that they're somehow being discriminated against because some people don't agree with their beliefs. Because I don't agree with Christianity and I speak out against what I think are failings in Christianity, I am somehow oppressing Christians. This is, also, a lie. Christians are not oppressed in the United States, they represent well over the majority of seats in our Congress, and I can't remember the last time a US President didn't have to make an appeal to the "god factor" of the voting public in order to get elected. In short, this section is meaningless, as the government does not prevent you from believing or speaking about your beliefs.

Religious people are not oppressed by the federal government in the United States.

Sec. 2.  Respecting Religious and Political Speech.  All executive departments and agencies (agencies) shall, to the greatest extent practicable and to the extent permitted by law, respect and protect the freedom of persons and organizations to engage in religious and political speech.  In particular, 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.  As used in this section, the term "adverse action" means the imposition of any tax or tax penalty; the delay or denial of tax-exempt status; the disallowance of tax deductions for contributions made to entities exempted from taxation under section 501(c)(3) of title 26, United States Code; or any other action that makes unavailable or denies any tax deduction, exemption, credit, or benefit.

Section 2 is where it starts getting interesting. Read this run-on sentence again from the section:
In particular, 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.
So essentially it's trying to order the Secretary of the Treasury, through an executive order, that religious organizations who speak of politics from a religious perspective are not to be hindered or have any "adverse action" taken against them for engaging in political speech with their religious platform and beliefs mixed in. Let no person say that he is without sanity, however. A clause of protection from theocracy is provided. The limitation of the Secretary of the Treasury is only if "speech of similar character has . . . not ordinarily been treated as participation or intervention in a political campaign on behalf of (of in opposition to) a candidate for public office by the Department of the Treasury."

So the Department of the Treasury is now, through their Secretary, bound and forced to abide by what they have previously done in regards to taking action against religious organizations that start to act as voting blocs or lobbyists. They cannot act in any way which does not already have precedence, even if new situations were to arise that don't have precedence, which is capable of happening.

However, look at this text from the Johnson Amendment, so-named for then-Senator Lyndon B. Johnson, which defines what characteristics an organization must have to qualify as a nonprofit - the type of nonprofit that church organizations are, which are tax-exempt:
. . . which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.
Well, well, well. About the only thing Trump's order does, so far, is tell the Secretary of the Treasury to not take action against religious organizations if they would not normally be found in violation of the Johnson Amendment. So far, and we still haven't seen anything substantial.
Sec. 3.  Conscience Protections with Respect to Preventive-Care Mandate.  The Secretary of the Treasury, the Secretary of Labor, and the Secretary of Health and Human Services shall 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 3 has nothing to do with the Johnson amendment, but it does have to do with women's health. See, the text of the cited paragraph from title 42 of the USC states:

A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for— . . . (4) with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.
So what is he saying? An important idea here is what a "conscience-based objection" is. A conscience-based objection is when someone has a moral or religious objection to a medical treatment, or operation, or procedure, or some similar thing. I am not an expert in law unfortunately, but it seems that one of two things is true given the text above:


  1. Individuals can refuse services from their group health plan with respect to additional preventive care for women, if they have a moral or religious objection; or,
  2. Insurers and employers can, when setting up group health plans, refuse to provide "additional preventive care and screenings" for women, if they have a stated moral or religious objection to them.
If it is option 1, that's not terribly controversial - people can refuse treatment if they don't want it, is essentially what that means. If it's option 2 however, that is entirely different, and it builds on a similar idea to the Hobby Lobby case a few years back, when they won a lawsuit claiming that their healthcare coverage for female employees did not cover all forms of birth control (i.e. the "morning after pill" among other things), due to religious objections. They won their lawsuit and set a precedent that a closely held private corporation could indeed refuse such things in their healthcare plans for employees if they have such a conscious objection, and Trump is trying to, apparently, build on this sentiment.

Sec. 4.  Religious Liberty Guidance.  In order to guide all agencies in complying with relevant Federal law, the Attorney General shall, as appropriate, issue guidance interpreting religious liberty protections in Federal law.
He's playing nanny to the Attorney General on the matter of "making people feel good" about their religion. Nobody cares.

Sec. 5.  Severability.  If any provision of this order, or the application of any provision to any individual or circumstance, is held to be invalid, the remainder of this order and the application of its other provisions to any other individuals or circumstances shall not be affected thereby.  

He's trying to cover his ass after he lost the battle over his temporary immigration ban. Nothing too confusing here.

Sec. 6. General Provisions.
(a) Nothing in this order shall be construed to impair or otherwise affect:
           (i) the authority granted by law to an executive department or agency, or the head thereof; or

          (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

Section (a) is saying "this order doesn't affect the authority of other officials in any way" if it's unrelated to his earlier statements; section (b) states that the order shall be carried out in whatever manner is lawful; section (c) states that this order is not granting any extra rights or benefits of any kind to anybody.

The order, when summed up, essentially does this:


  1. Tells the IRS to stop being mean to religious groups that make political statements;
  2. Builds on the precedent of the Hobby Lobby case, possibly allowing closely held private corporations to reject certain healthcare options from their group health plans - but only female healthcare options.

Great job, Trump! We've gotta make sure that people can still avoid paying their taxes if they believe in magic, and make sure that parts of female healthcare remain "only optional" even though it was mandated by law originally. Way to go!

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