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. Trump said going to church is deemed essential, but he went golfing. Maybe he had prayer on the back 9. Most golfers do.

  2. Why do I get the feeling that some republicans will say going to church in large groups is safe, but in-person voting is not.

    1. Because you whined and cried the ‘minority community’ is sick as heck with covid19 and you want to mass bus them to any voting booth you guys find and a few in the neighboring states. Not a good idea, Fish.

  3. As much as I voted for Trump, I prefer to keep my states rights. States rights should exist long after ” Any” president is long gone.

  4. 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.

    1. It’s interesting how erasing our foundations occurs.
      Not long ago they went on a rampage for mandatory vehicle insurance.
      Now, not long after, the rabid supporters are legion.
      Yes, very recently it was not a law that you had to have insurance to drive your vehicle. I doubt people can fathom that freedom right now.
      Now people are absolutely trained. Totally vapid, totally taken down. Limp. Pulled over and the “Minority Report” future crime is slapped on them…no insurance no accident no other violation, no – you’re in trouble….
      They got that one so they went for Healthcare. Mandatory. They got it. Trump helped reverse some of it I heard.
      Not sure off the top of my head what they went for in between but certainly many things.
      So they just do it, then the sheep adopt the law as their patriotic shield or screaming be responsible, or whatever the social “general welfare rant” is.

  5. Cigarette smoking is dangerous. A hassad to you’re health. Does that mean anything to you? Then legalize marijuana. Right here in sweet Jamaica. Hoo hoo hoo!

  6. As usual, Trump is right, and correct. Politically. It’s questionable if the courts will decide he has the “legal” authority – perhaps there is a penumbra of freedom of religion that, in this particular case, with this generally low-death disease, would allow the SCOTUS to accept an override.

    Or, more likely, it would be moot by the time it got on the docket.

    In the meantime, it’s the “right” thing to do, politically. To help Trump & freedom Reps win in 2020.

    1. Sure. Most voters are religious fanatics who think the virus is a hoax and can’t wait to be randomly exposed to strangers.

        1. Monuments Colorado, BTB thinks Trumpers are stupid. But for some reason you seek to equate Trumpers with ‘all’ Americans

          1. There’s a guy in Moscow who is really a Trumper. Ask him. Oh that’s right, he already said he was. And that guy is North Korea, and Turkey, and don’t forget the Philippines. Hell, Trump has fans all over the world, you know, the ones who don’t believe in democracy.

        2. More Americans voted for Hillary monument, and of the last 7 presidential elections, Democrats won 6, so no, I don’t think Americans are stupid. You apparently do.

          1. That’s one heckuva chip on the shoulder – must be terrible not accepting the outcome of elections. Hillary warned against that.

    2. Self governance by statute, law and fundamental law or self governance by fiat, hysteria, incoherence and implication?

      You cited no source for authority or legal basis. Courts and SCOTUS have no authority to “legislate.” The judicial branch has no power other than voidance of all acts contrary to the manifest tenor. Whim, other arbitrary edicts, precedents and erroneous precedents may not nullify the Constitution and Bill of Rights no matter what random “implications” the judicial branch may discern or conjure. U.S. officials must be impeached for crimes of high office such as denial of constitutional provisions, usurpation of power, abuse of power and corruption.

      “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

      – Alexander Hamilton

  7. JT: Come down out of the ivory tower. I’m sure the president knows he really doesn’t have the authority to “override” the states. But I’m also sure that he knows that millions of Christians, Jews and Muslims throughout the United States are giving him a standing ovation. It’s called politics.

  8. Since 100 people at a time are permitted in Home Depot, next Sunday’s service will be held in plumbing.

  9. As these religious practice cases, and other cases demanding just compensation for the taking away of business opportunity make their way through the Courts, I believe the States will face their biggest vulnerability — inability to state with any clarity the limiting condition signalling when the public health orders have achieved their goals and are no longer needed. While there may have been a valid public health objective in preventing the overwhelming of hospitals, where is the argument that the aged and infirm are owed enormous sacrifice on the part of other members of society to not die of Covid-19? I believe the plaintiffs will prevail in forcing the Public Health Authority to be denied mission creep, since to do otherwise obfuscates the objectives, and prevents application of the “least burdensome” doctrine to allowable regulation.

    1. Sounds great but it’s too late. The panic was extraordinary. The government reaction overblown to the max. I’ve seen many lies for many tax dollar takers. The lies and obfuscations and lack of connecting dots is ongoing.
      Two weeks turned into two months turned into more. A year and a half some leaders say. 7 billion vaccinated humans worldwide before we can open back to normal Bill Gates proclaims, a great friend and funder of Fauci for many years. $4,600.00 a treatment remdesevir, slammed through and contracted, not $5 doxycycline or $15 HCQ.
      I’ve been checking the US debt clock.
      It reminds me of the swearing and promises of the just let us pass the seat belt law, we will never use it unless you are pulled over for some other violation. Pretty please, we won’t ever just pull you over for it alone.
      Then of course, soon after the Ad Council was on every vehicle radio station, and Clickit or Ticket ! was driven into every ear and mind on the continent.
      Of course this is far, far worse.
      Were very lucky Event 201 occurred in October, just in time to be ready for this. What great preparation.
      It’s sick, but they get to because victims are the most important people in the whole world.
      I am for what Sweden did, what Brazil did, generally speaking. What about oh it was 6-8 of our states did.
      I am in no way for this crazy new world disorder crap where everyone is a victim even though they aren’t.
      I hope everyone who was forced enjoyed their “vacations”.

        1. Glad you pointed out what I got wrong. Nothing, in other words.
          Go abort some more babies. That’s no conspiracy either, you guys keeping the black population down as low as possible. Of course you’d never do that, ‘those aren’t humans’ according to you.
          Laughing again.
          Not at your condoning murder.

  10. 495000 plus Americans died of smoking tobacco last year. A large number died of second hand smoking.
    Close all tobacco companies and stores and remove all products from other stores.
    Mister President! Do your job!

        1. Absurd, cigarettes are one of the ‘only’ legal products whose regular use can kill the consumer.

          I’m not necessarily in favor of banning cigarettes. Such a move would probably create a black market.

          But if an anti-abortion activist was truly ‘pro-life’, banning guns, tobacco and alcohol would be their logical agenda.

          1. Peter – should anti-abortionist be anti-rocks, anti-knives, anti-cars, anti-trucks, anti-trains, anti-manufacturing, etc.? Isn’t that what you are positing.

      1. Seth, if you don’t believe abortion is ‘murder’,
        banning you, a no-brainer, would be liberty.

  11. If you would like a proofreader, I’m willing to volunteer. That said, I suggest that you use at least a couple different proofreaders (in case one is unavailable when you’ve cranked out a post or column). Using an editor would be even better, especially when you get into the legal weeds, but at least, a few proofreaders to catch the obvious errors would be advisable. I mean this with all due respect.

    1. Agree 100%. I’m not certain what this article says …. I’ve followed JT for years and this is the likely the most poorly written article he’s published. Suggestion to JT: Delete it, rewrite it, and republish it. “Your message was garbled in transmission.”

      1. Sorry to let you on a little secret, Turley is using the “Bill Barr” summary technique. Only point out what they want pointed out, leave the details of facts out, don’t need them, don’t use them.

  12. Agree about courts. However, any person still quoting the following is intellectually dense and a lazy researcher: “We’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure.”

    There is a lot of info on c19, including treatments for it. Judges, along with many others, need to be researching that information. Even Chris Whitty, the person who occupies Fauci’s position in the UK, writes: “…significant portion of those who get it have no symptoms, of the symptomatic cases (around 80%) are mild to moderate, minority go to hospital, most need oxygen, a minority of those need ventilation, a minority of every age group sadly die with current treatment, but even of the oldest group, most do not {die}.” (From a talk given at Gresham College 4/30/20) Here is a further link to more info:

    People are not asking a basic question–why are we doing any of these bizarre things for an illness with a death rate similar to seasonal flu. Further, we understand who is at most risk of this disease and that is people in nursing homes with co morbidity (highest risk) and older people in general with co morbidity (next highest risk). There are excellent techniques to protect such people if we really want to save lives. Further, even people at high risk may choose to take risk in their life and see their family members, go out, etc. Medical marshal law does not end death.

    The response by authorities has clearly been disproportional and destructive of human life and freedom. A govt. can protect vulnerable people and not trample the rights of anyone. That so many people think those two things are incompatible is frightening. That judges refuse to inform themselves of basic reality is offensive and shocks the conscience.

    1. Jill:

      – seasonal flu is not welcomed every year with the stay at home rules most Americans have followed. The numbers therefore are not comparable..
      – most Americans are staying home out of fear, not rules imposed from above. Loosening those rules will not cause most to return if they can help- it.
      – no one is trying to permanently restrict your rights. Please knock off the drama.

      1. Drama, do you remember when Obama was going to kill us all with ebola? They yelled from the rooftops that Obama’s policy would kill us all in weeks. FOX ran it 24-7.

        1. Obama never gave a crap who died from his incompetence and aloof lies and lack of action and depletion of national stockpiles. He was too busy executing Americans with drones and arresting reporters and stroking his unsteady gourd above the spindle neck and spying on political opponents.
          Let em all die he did. Then declared no scandal. H1N1
          60 million plus infected while he slept.

    2. Jill, a medical report came out Friday saying Covid 19 attacks the lungs far more aggressively the basic winter flu.

    3. I object to the “often” fatal. It’s RARELY fatal.
      We have so many fruitloops now.
      Coocoo for cocoa puffs.
      Cowards, fools, tax money agendas, blabberers, minders, tracers, ….. beeeep
      Oh gosh laughing to hard could be fatal. Pressure on the ribs and the abdomen, it’s too risky.

  13. So what you’re saying is that the states have no right to curtail people’s constitutional rights but the President has no right to step in when the states get out of line. If I have understood correctly. Meaning that once again we are seeing a tremendous power grab that will be difficult to reverse. At this point in American history, the law -and the Constitution – seem to be viewed upon as things to ride roughshod over. I think the President has chosen churches as surrogates for business but he feels churches will be an easier cause to defend. States are imposing bankruptcy on individuals and businesses but that does not rouse your legal ire. And by the way, the entire world, except us, is using hydroxychloroquine successfully. I just spoke to my ex, who is an Italian MD, the other day, and they are using hydroxychloroquine paired with heparin. In the USA, doctors have been told that they will lose their licenses for prescribing these life-saving drugs. So, to recapitulate, we have a bad situation, but we also have a safe medication to treat it, if not to cure it, and not only are doctors not allowed to use the medication, it has become almost illegal to even talk about it Even otherwise intelligent people are still drinking the anti-Plaquenil Kool-Aid. Basically, we are all supposed to embrace bankruptcy and defeat tra-la-la while the President tries manfully to step in and help scholars sit in ivory towers and yell at us.

    1. Shut up and get in line toddler. It’s a national emergency and no one is trying to permanently force you to keep distances in WalMart.

      Cripes, with these spoiled babies we’d never won either WW.

      1. But…But… they need haircuts. They don’t want the gubermint to tell them what to do. Except to go to work or church during a pandemic. And a man who wears ammo belts and camo and assault weapons during a pandemic in large crowds looks funny in a mask.

        1. Only short ugly democrat mayors of Chicago are allowed haircuts.
          Only babbling CNN politically connected and cv19 infected liars are allowed to fake basement dwell while running all over the city and to new neighborhoods…and threatening citizens when they get caught, then crying they don’t like their job and want to do something new, then take it all back and say they never said it…
          Equal rights for all, after all !

      2. Yep, it’s a world war. Good analogy, cowardice is first, for you.
        The people who aren’t afraid are sick of this.
        You “stay in line” at home crying in fear. That will win the new world war.
        Laughing. Another opposite idiot. Total projection, the coward 101.

    2. Is There Really A Conspiracy,

      Is an absolute fool..!! And this particular claim is an absolute lie:

      “And by the way, the entire world, except us, is using hydroxychloroquine successfully”.

      There is no truth whatsoever to this.

      1. “The three most commonly prescribed treatments amongst COVID-19 treaters are 56% analgesics, 41% Azithromycin, and 33%

        Hydroxychloroquine usage amongst COVID-19 treaters is 72% in Spain, 49% in Italy, 41% in Brazil, 39% in Mexico, 28% in France, 23% in the U.S., 17% in Germany, 16% in Canada, 13% in the UK and 7% in Japan

        Hydroxychloroquine was overall chosen as the most effective therapy amongst COVID-19 treaters from a list of 15 options (37% of COVID-19 treaters)
        75% in Spain, 53% Italy, 44% in China, 43% in Brazil, 29% in France, 23% in the U.S. and 13% in the U.K.”

        Turkey likes it, too:

          1. For anyone interested in the truth of the matter, they care.

            “Michigan Democrats reportedly plan to censure a state lawmaker who met with President Trump and expressed support and thanks to him and his administration for their endorsement of hydroxychloroquine as a coronavirus treatment.

            State Rep. Karen Whitsett faces a censure vote Saturday from party leaders who insist that she reports to them, according to a report Thursday in The Detroit News.”


            Better Trump and truth both fail, apparently.

            “As a result of the censure, Whitsett says she has been “ousted” by the party, and the defendants continue to hinder her ability to do her job. An example, the lawsuit claims Whitsett arranged for 388,680 meals to be delivered to her constituents in Detroit, and the defendants refused to allow her the help of the Michigan Army National Guard to distribute the meals as previously arranged.”


            1. Prairie, no offense, but anyone interested in the “truth” about medications and other technical questions concerning our health would not seek it from those motivated by politics, not science, no matter which side of it they were on.

              1. It seems like the Democrats are trying to interject politics into science. A politician, normal citizen or anyone else providing an opinion is doing just that which makes a person more knowledgeable and able to ask their own physician finally choosing for themselves.

                “Michigan Democrats reportedly plan to censure a state lawmaker who met with President Trump and expressed support and thanks to him and his administration for their endorsement of hydroxychloroquine as a coronavirus treatment.” Is without question an injection of politics into medicine and science. If Michigan Democrats disagree with one’s positive experience they don’t argue the point, they condemn you and they censure you.

                The Democrat Party has become fascist and doesn’t believe in the First Amendment.

              2. bythebook,
                “anyone interested in the “truth” about medications and other technical questions concerning our health would not seek it from those motivated by politics”

                So glad we are in agreement.

                You are right, politics has nothing to do with the facts of the matter that zinc DOES interfere with the replication of SARS-coronavirus and that hydroxychloroquine IS a zinc ionophore.

                1. Well glad of that Prairie, but again no offense, but I don’t care about chlorowhatever and wouldn’t take your word for it if I had a need to. Maybe I will someday, but then I’ll rely on my doc, not Trump or Pelosi.

        1. Oh you didn’t. Where are the ban operatives?! Hurry….!!! All bans on deck.
          I’ve been informed by facebook bots they are trying to delete your post.
          Bookworm has the shakes after reading, thus a dangerous post must go.
          Please, someone help him !!!

  14. I think you got it right with these words: “Not exercising any meaningful degree of scrutiny.” I would question Turley’s continued use of the word ‘federalism” though. Historically, I see the U.S. initially as a “confederation” that adopted central government in form of “constitutional republic.” “Federal” to me simply implies agreement between two autonomous state entities. We are not, then, simply a federation. And federal and state as co-equals, with constitutional exception, is not simply ” a product of “federalism.” But rather directly derived of that 1788 creation. Which is to say, I think Turley attaches too much to this thing of federalism.

  15. States rights terms have been used by the right-wing for years, they have used it for code on workers rights and civil rights, and women’s rights. And of course they used it to suppress those rights saying the federal government had no right to tell the state how to govern. Saint Ronald of Reagan was a master of using the term for code. Now, King Donald the 1st, the stable genius has proclaimed again, he is the law.

    1. But the reality is, states’ rights actually do exist under our federal constitution. In fact, the constitution only supersedes the state in four distinct areas.

      1. Well, we will have to wait on Trump’s personal lawyer and consigliere to see what happens under the constitution under the rule of King Donald the 1st to see if those still apply. I’m waiting on Barr’s “summary”

      2. States have “powers” also. When the Klan yells “State’s Rights!”, They wish to counter dick the words “civil rights”.

  16. The churches need to be sensible and the state governments need to be sensible.

    1. A prohibition or advisory stated in terms of numbers attending is silly. (See the Governor of Minnesota’s dippy no-more-than-10 order). It needs to be stated in terms of the space between those attending, which may differ between indoor and outdoor services.

    2. It needs to be emphasized: NO SINGING. Singing has been associated with some horrendous superspreader events.

    3. No handshaking either.

    4. Masks.

    1. The churches should do themselves a favor by putting up tents and having services on the lawn. Enclosed spaces are much more troublesome than outdoors. Also, liturgical denominations need to grant dispensations to people over 60 and people over 50 with a high BMI.

  17. Actually, he can. Donald Trump (and every other president) has a Department of Justice whose role is to ensure that the Constitution of the United States is followed, and the Constitution is explicit that “Congress” can make no law regarding religion and that free speech and the right to assemble may not be infringed upon. The DOJ can prosecute any state that fails to adhere to the First Amendment.

  18. I just listened to Tim Pool make the argument that Democratic gov.s are keeping the lockdown to put businesses out of business. Dr. Fauci says to open up and we have governors who are restricting the number of people in church to 10. A church that holds 1500 people and the governor says 10 can go in. This is anti-religious, anti-Constitutional and we are past when “broad powers” exist.

    1. Yeah, well Jack Smith says Tim pool is FOS.

      Who’s Tim Pool.

      Why would Governors want to ruin businesses in their own state?


        1. Paul, what good is control if it ruins a state?? No sane governor has an incentive to do that.

    1. I think you got it right with these words: “Not exercising any meaningful degree of scrutiny.” I would question Turley’s continued use of the word ‘federalism” though. Historically, I see the U.S. initially as a “confederation” that adopted central government in form of “constitutional republic.” “Federal” to me simply implies agreement between two autonomous state entities. We are not, then, simply a federation. And federal and state as co-equals, with constitutional exception, is not simply ” a product of “federalism.” But rather directly derived of that 1788 creation. Which is to say, I think Turley attaches too much to this thing of federalism.

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