At a news conference on Friday afternoon, President Trump announced that he would order the reopening of churches despite the coronavirus pandemic – something he almost certainly doesn’t have the power for.
State governors, Trump claimed, should allow churches to reopen “now, for this weekend.” He added that “if they don’t, I will ignore the governors.”
Trump reportedly also ordered the Centers for Disease Control and Prevention (CDC) to release guidelines for houses of worship trying to reopen.
There have been several outbreaks of coronavirus that can be traced back to church meetings. In April, at least 70 infections were associated with a church in Sacramento, California. More recently, the CDC determined that “among 92 participants in a rural church in Arkansas on March 6-11, 35 (38%) developed laboratory-confirmed COVID-19, and three persons died. ‘
While many governors have ordered churches to have closed or limited meetings within churches, some governors have allowed to reopen places of worship. There have also been some judicial challenges in closing houses of faith, but the impact of these challenges has been largely marginal, at least so far.
Trump’s power to ignore state governments is very limited
State governments, not the White House, have primary responsibility for deciding how their states will respond to the pandemic.
Congress could, in theory, ignore some of the decisions of state governors. The constitution empowers Congress to “regulate trade with foreign countries and between different states, “A provision Congress gives broad authority regulate the national economy and remove barriers to interstate trade. So if Congress disagreed with the closing of companies by a state order, it could likely issue federal law that excludes that state order.
But even assuming that churches have a substantial impact on interstate commerce for Congress to reopen, Trump is not a Congress. Trump may invoke existing laws that give the federal executive some power to help manage a public health crisis, but those statutes largely allow the federal government to monitor ongoing state efforts to disease control, or attempting to quarantine or enter state lines.
When journalists asked White House press secretary, Kayleigh McEnany, to determine which provision of federal law allows the president to ignore a governor’s public health order, McEnany did not. Instead her answer – “does the president encourage strongly any governor to reopen churches ”- seemed to admit that Trump only has the power to convince governors to change their policies.
Trump can influence Republican judges to reopen churches
But while Trump almost certainly does not have legal authority to reopen churches, he is the head of the Republican Party, and his words are likely to form the opinion of many GOP partisans – some of whom are sitting judges.
According to the decision of the Supreme Court in Employment Division against Smith (1990), churches and other religious institutions can be subject to the same laws as everyone else, as long as they are not selected for inferior treatment. As Justice Antonin Scalia wrote to his court in that case, “the ability of the government to apply generally applicable prohibitions to socially harmful behavior, such as its ability to implement other aspects of public policy,” cannot depend on the measuring the effects of a government measure on the spiritual development of a religious opponent. ”
But Smith has fallen out of favor with judicial conservatives, and it is likely that the Republican majority in the Supreme Court will ignore them in a case they will hear in the fall. Even if Smith is ignored, but state governments can still regulate – or even close – churches as long as the rules that regulate those churches are closely aligned to promote overriding interest, such as preventing the spread of a deadly disease.
While existing law provides that governors may close churches to protect human life, it is far from clear that an increasingly conservative judiciary will follow this law. For example, last month Trump-appointed judge Justin Walker wrote a very partisan opinion that a Kentucky injunction, allegedly banning drive-in church services, was like stories of slaves being beaten for “attending prayer meetings.”
So while Trump doesn’t have the legal authority to reopen churches, his rhetoric is likely to affect politicians and at least some Republican judges. That means courts can demand that churches reopen long before the virus is under control, potentially leading to new outbreaks like those in California and Arkansas.