Huffman to the president: You can’t do that
In a single statement of breathtaking arrogance and ignorance, President Trump threatens to trample the sovereign powers of the states under American federalism, the prerogatives of Congress under the 14th Amendment, and the rights of the people under the First Amendment and the 10th Amendment. In his dangerous rush to wipe out stay-athome public health orders and social distancing measures, President Trump has turned himself into a wrecking ball of the U.S. Constitution.
Nothing in the Constitution gives the president the power to override state public health decisions adopted by legislatures or governors under state laws adopted under the states’ 10th Amendment powers. Nothing in the Constitution gives the president the power to commandeer the machinery of state government for his own ideological or political purposes; indeed the Constitution forbids it. Nothing in the Constitution gives the president the power to usurp Congressional authority to enforce the people’s rights of equal protection, religious free exercise, or freedom of assembly. Congress can certainly take action under Section 5 of the 14th Amendment to protect religious freedom against state governments, as the Supreme Court found in City of Boerne v. Flores (1997), but Congressional action must be “proportional” and “congruent” to a real threat to religious freedom, which is why the court in that case struck down the Religious Freedom Restoration Act as applied against state governments.
Congress has not acted to “reopen the churches” over state public health policies and orders, and it has not done so for good reason. All of these public health policies and orders are perfectly lawful, respectful of religious freedom and enhancing of the general welfare. If it is unsafe for states to permit in-person indoor assemblies of more than 10 people for the purposes of a social gathering, a wedding, a funeral for a COVID-19 patient, a campaign rally for Joe Biden, or a political demonstration against the idiocy of the Trump administration, then it is equally unsafe for them to permit in-door assemblies of more than 10 people for the purposes of religious worship. We have seen numerous cases where people, including ministers, have contracted this dread disease at religious events. People certainly have a right to believe in religious miracles and to engage in magical thinking, as the president does, but the states have no obligation or power to operate on that basis.
The Constitution commands religious neutrality, which is why police forces and fire departments will rush to the aid of churches if they are victims of burglary or arson in the exact same way they will rush to the rescue of department stores, schools and private homes. By the same token, the Supreme Court has found, religions are legitimately governed by neutral, universally applicable laws, like laws against child labor, illegal drug possession, child sex abuse, and so on. A private church has no more right to endanger the health of its members or the rest of the public than does a private school or a political party, even though the existence of all these groups is protected by the Constitution. The key justice insisting that churches have the right to official government neutrality and nothing more was Antonin Scalia.
Opening up any corporate assemblies, including churches, against the advice of public health experts and medical professionals, is a recipe for COVID-19 outbreaks that will put people’s lives at risk and worsen our public health and economic morass.
America’s founders did not give the president the powers he is recklessly asserting. Deciding the safety of public gatherings based on the neutral criterion of numbers of people present is a policy choice for state and local public health authorities, not a pandering president who recommends the ingestion of disinfectants. The president clearly understands neither public health science nor the constitutional limits of his authority.