President Trump Pledges To Override State Orders As Ninth Circuit Upholds California Church Order

ninth-circuit-logodonald_trump_president-elect_portrait_croppedThis week, President Donald Trump has pledged that he will “override” state orders barring in-person religious services unless governors do so.  As I have previously noted, the President is claiming authority that is expressly denied to him in our system of federalism. While I have warned such deference given to the states wanes with time, any order to reopen churches in a given state will be based on the inherent authority of the courts, not the President.  This issue could be coming to a head with the split decision of a panel in the Ninth Circuit late Friday to uphold the order Gov. Gavin Newsom barring large in-person religious services.  Early on in the pandemic, I wrote about how governors can shutdown churches under the Constitution. The Administration can, and has promised, joined legal challenges to such state orders but it is not claiming the inherent authority of presidents to “override” state decisions.  The Justice Department has warned Newsom that his order is contravening constitutional rights.

As I have previously discussed, courts tend to afford great deference to the federal and state governments in the imposition of public health measures in a pandemic. However, such orders become more difficult to maintain in time, particularly when juxtaposed against constitutional rights like the free exercise of religion. There are legitimate concerns over the denial of such rights as other areas open despite having similar levels of participation.

The Ninth Circuit decision split over the statewide shelter-in-place order of March 19, which allows some businesses to reopen but has deferred reopening sites of large in-person gatherings.

Judges Barry Silverman and Jacqueline Nguyen reflected the deference afforded to governors by emphasizing “We’re dealing here with a highly contagious and often fatal disease for which there is presently no known cure.”

In my prior writings, I stated that courts are likely to cite Justice Jackson’s “suicide pact” quote, which I have long criticized but is more relevant here.

“This may be the most compelling use of the belief that the Constitution “is not a suicide pact.” I have been critical of that often repeated reference by those who want to ignore fundamental rights. It was originally attributed to Abraham Lincoln after he had violated the Constitution by unilaterally suspending habeas corpus. It is more often attributed to Supreme Court Justice Robert Jackson, without noting that he used the line in one of his most reprehensible opinions, a dissent to the Supreme Court extending protections to a priest arrested for his controversial speech.”

In dissent, Judge Daniel Collins objected that his colleagues were not exercising any meaningful degree of scrutiny: “I do not doubt the importance of the public health objectives that the State puts forth, but the state can accomplish those objectives without resorting to its current inflexible and overbroad ban on religious services.”

The two opinions are excellent examples of the opposing views that are likely to be heard among judges across the country. Indeed, with the passage of time, this could easily flip.  Some courts have already enjoined state orders and the scrutiny over the basis for such orders will increase, particularly as other states relax their own rules.

This however is the natural progression of such challenges. What will not be upheld is any presidential edict to states to open their churches.  Federalism is based on the very principle that the federal government, let alone a president unilaterally, has no “override” on the states on such matters.  The Constitution can supersede such state decisions that that is not a unilateral presidential power.

Here is the opinion: Ninth Circuit Decision


103 thoughts on “President Trump Pledges To Override State Orders As Ninth Circuit Upholds California Church Order”

  1. Perhaps Prof. Turley would care to respond to Mark Levin, who apparently considers “professors” like him “silly”:

    “The free exercise of religion is part of the First Amendment of the FEDERAL constitution, which the Supreme Court has applied to the states along with the rest of the Bill of Rights. If the president, as the head of the unitary executive branch, believes a governor is violating the religious liberty rights of the citizenry, he can direct his Justice Department to act. It’s a recognized civil liberty like other individual human rights. There’s lots of phony reporting and silly professors who’ve no idea what they’re talking about.” — Mark Levin’s Facebook page, 5:21 PM on 5/26/2020

  2. It’s always funny when someone like Mr. Turkey tries to form a legal rebuttal to Trump’s conspicuous lack of legal argument.

    Trump never cited any legal construct through which he would “override” anyone. We can presume what he might do, but we can’t tell him he’s powerless, ie, he “can’t do anything”. Presidents have a number of means to effectively override these edicts issued by governors, and there’s nothing in his statements that suggest he would not be enforcing the will of the courts if and when he does so.

    It’s a further layer of irony to presume that the “will of the courts” is something monolithic, especially these last 4 years, where we’ve witnessed highly politicized rulings being overturned with high frequency, as courts morph into circuses like Judge Sullivan’s Resistance Follies. Principals in our political landscape shop around for amicable courts, and courts (pun intended) court this kind of “prescription shopping”. It’s precious when his opposition suggests that “the president read the Tenth amendment”, when he’s acting in defense of the First by advocating the rights of churches to open.

    “The will of the courts, the will of the courts…” — it’s nice phrase, but it’s not really an argument.

    Eisenhower was famously enforcing the “will of the courts” when he sent in the national guard to integrate southern schools. Was Obama enforcing the “will of the courts” (or even the will of the legislative branch) with his DACA/Dreamer executive order? He seems to have gotten away with it regardless.

    As state courts decide that keeping churches shut down, especially by governors riding high on indefinite edicts — often in contravention of time limits placed on their powers under their own state laws — we will begin to see Trump take actions to penalize them, especially when he has court rulings on his side in a particular state.

  3. Read the fundamental law.

    No elected or appointed official has any constitutional health power and COVID-19 is a private, non-governmental health concern.

    Americans enjoy the freedom of assembly and religion. Those freedoms are not qualified and are absolute. The Executive and Legislative branches have no “emergency powers.” Congress has no power or mandate to provide healthcare. Treatment for COVID-19 cannot be taxed for as “…general Welfare…” as the symptoms are variable, individual and specific. States have no power to nullify constitutional rights and freedoms. Probable cause must exist for the arrest of an owner or the cessation of operations of free enterprises. Congress has the power to suspend Habeas Corpus in a condition of invasion or rebellion. COVID-19 may only be considered a private, non-constitutional health concern and distinctly not a military invasion; the Framers were completely familiar with war and disease, as they considered an invasion to be a military operation conducted by a foreign nation. Individual Americans are to make private decisions related to healthcare. Congress has no power to regulate individuals, free enterprises or churches during a “pandemic.” Congress has no power to regulate anything other than money, the “flow” of commerce and land and naval Forces. Freedom of the press allows for propagation of all data related to healthcare concerns. Free enterprises and industries, with emphasis on requirements for insurance coverage, must self-regulate comprehensively to defend themselves from recourse in the courts. Free people must be self-reliant and make their own critical decisions.

  4. I suppose this article is fair enough, but the open-the-churches spiel from Trump is for political purposes.

    My understanding is he is a bit concerned about some recent polls.

    “Behind Trump’s demand to reopen churches: Slipping poll numbers and alarm inside his campaign”
    Trump was counting on widening support from white religious voters this fall. The pandemic is sending his numbers the other way.

    1. Are you referring to the “China Flu” which was ordered up by the communists (liberals, progressives, socialists, democrats, RINOs) in America as they faced a looming, inexorable, historic, landslide victory by President Trump in November. They must be forgiven. They had no choice. They knew not what they did.

    2. You forget or ignore the fact that many Blacks are evangelical also. These shut down orders, mainly from Democratic Governors, impact Blacks negatively to a greater extent than whites. By November many, both black and white will vote for the person who hurt them the least. At this point that might be Trump.

  5. Let us have one governor go after the cigarette smoking in his or her state. Stop! The suicides.

      1. And predictably, Absurd tries to shoot the messenger, but misses.

        1. The messenger doesn’t know anything and isn’t worth your trust. This isn’t that difficult.

          1. Absurd doesnt like this part from The Intercept piece:

            “And the rise of mail-in ballots, Eldred added, would undercut voter identification laws, which have been a pillar of GOP election strategy”.

  6. After hearing from you people how terribly infected the victimized and oppressed minorities are, that’s why. Duhhh.
    Keep ’em home if you care.

  7. This should be on a giant billboard in every city in the US:

    “America does not need to see the tax return of a billionaire who became a public servant. America needs to see the tax returns of public servants who became millionaires while being public servants.” -Kevin Sorbo

    1. Anonymous, your comment here is geared to the very stupidest. The message is basically: “Don’t question Dear Leader, but harass government employees”.

      1. Well, at least you admit it’s harassment Seth. Talk about stupid.
        I’m dialing Ukraine now, to get a copy of the arrest warrant they have for Biden and Hunter.

      2. Duh, he was talking about politicians who used to be called ‘public servants.’ Public employees are employees, not servants.

      3. Absolutely correct! Harass bribed government employees. Bribed by special interest groups among those are the DNC and the Clinton Foundation.

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