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Can Trump Override Governors and Make Worship Essential?

No.

No. President Trump announced a policy that will have the CDC consider “houses of worship” to be “essential” activities. This will have no effect on state governors and policies that prohibit churches from meeting in person, or violating emergency orders limiting group size due to the pandemic.

For weeks, I carried in my pocket a letter explaining how my job is “essential,” deemed so by the Department of Homeland Security, Cybersecurity & Infrastructure Security Agency (CISA). The latest version of that letter is dated May 19 and clearly states, in bold typeface:

This list is advisory in nature. It is not, nor should it be considered, a federal directive or standard. Additionally, this advisory list is not intended to be the exclusive list of critical infrastructure sectors, workers, and functions that should continue during the COVID-19 response across all jurisdictions. Individual jurisdictions should add or subtract essential workforce categories based on their own requirements and discretion.

If critical infrastructure deemed by the federal government is only advisory, then certainly the federal government has no power to reach into states and force governors to allow churches to meet, versus other businesses that would remain closed.

Fox News reported, “We’ve got to get our churches open,” Trump said Thursday.

The president added:

“Some governors have deemed liquor stores and abortion clinics as essential but have left out churches and other houses of worship, so I am correcting that injustice and calling houses of worship essential. I call upon governors to let them open right now, ” said President Trump.

But Trump can’t correct it. His statement is nothing but constitutional eye candy. If governors actually violate the First Amendment’s religious exercise clause, churches have many judicial remedies at their disposal, but the president cannot override the governors on his own authority. He doesn’t have that authority.

States possess what’s called “police power” to open, close, quarantine and regulate. The federal government has certain powers, that are strictly delimited, and does not include the ability to reach down into states (that’s what federalism is about) and override local decisions. Governors, as long as they apply restrictions to churches equally to other businesses (requiring social distancing and limiting crowd size), are free to tell churches they should not meet, or to impose penalties for defying those orders.

The president surely knows this (even with his limited grasp of the role of different branches and levels of government). Therefore he is doing nothing but preening before his sycophantic base, and giving those pastors who defend him from their pulpits more ammunition to blast the “war on religion.”

Personally, I think churches should be as careful as any other gathering, sporting event, or business. But they should be allowed to make those decisions as states open up.

Carrying an “essential worship” letter from the CDC would be a very silly thing to do. And announcing that houses of worship are essential when we’re trying to recover from a very serious health threat is a very silly thing for a president, whom I’ve never heard utter a proper prayer in the name of Jesus, to say.

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