President Donald Trump on Friday said he was declaring “houses of worship — churches, synagogues, and mosques — as essential places that provide essential services.” What follows is a Law&Crime assessment of Friday’s announcement and an outline of this area of law and policy.
The White House Announcement
“Some governors have deemed liquor stores and abortion clinics as essential but have left out churches and other houses of worship,” Trump said on Friday. “That’s not right.”
“Some corrected this injustice in calling ‘houses of worship’ essential,” he said, referencing the way some state governors have responded to the novel coronavirus (COVID-19) by essentially treating religious organizations the same way grocery stores are treated under executive orders.
“I call upon governors to allow our churches and places of worship to open right now. If there’s any question, they’re going to have to call me, but they’re not going to be successful in that call,” Trump said. “Many Americans embrace worship as an essential part of life.”
The president said he was ordering the Centers for Disease Control and Prevention (CDC) to issue health guidelines for reopening such facilities but did not elaborate on what those guidelines might say. (One such guideline was actually authored back on March 6.) “Faith leaders will make sure that their congregations are safe as they gather and pray,” he noted.
Then came a threat of blunt federal force.
“The governors need to do the right thing and allow these very important, essential places of faith to open right now, for this weekend,” Trump said. “If they don’t do it, I will override the governors. In America, we need more prayer, not less.”
Trump walked out of the White House briefing room without answering questions.
Dr. Deborah Birx was asked by the White House press pool what the CDC guidelines would say. She referred faith community leaders to state and local coronavirus numbers as a guideline for how aggressive to be with protective measures. She also said people with comorbidities should be protected more than others or should choose to stay home.
Birx insisted social distancing measures should be observed. “There is a way for us to work together to have social distancing and safety for people so that we decrease the amount of exposure that anyone would have to an asymptomatic” person. She said she believes Americans who don’t feel well wouldn’t risk others by going to church and that she trusted people with symptoms to stay home.
Press Secretary Kayleigh McEnany later said Americans should celebrate their First Amendment rights, which she said needed protection, but walked back Trump’s threats to governors. “That’s up to the governors,” she said, when it came to the specifics on what to reopen and when.
When pressed repeatedly by reporters as to how Trump could override governors, McEnany posited that any punitive measures from the White House were purely “hypothetical” because it was not clear whether any governor would actually “keep churches shut down” this weekend. She also said the White House would “leave it to faith communities to reopen.”
McEnany also wouldn’t directly say whether the White House supported churches which defied gubernatorial orders. The question is legally relevant given Attorney General William Barr‘s multiple statements suggesting the DOJ would use the courts to “jawbone” states into submission with the constitution.
When asked which specific law gave the president the power to override governors, McEnany attacked the press for asking the question: “the president will strongly encourage every governor to allow their churches to reopen; and, boy, it’s interesting to be in a room that desperately wants to seem to see these churches and houses of worship stay closed.”
The press pool immediately rubbished that suggestion as ludicrous.
“I object to that,” one reporter said. “I go to church; I’m dying to go back to church,” he said. “Is it safe? And, if it’s not safe, is the president trying to encourage that, or does the president agree with Dr. Birx that people should wait?”
McEnany said it was “safe” to reopen churches pursuant to the CDC guidelines.
The Background Policy
What legally leads to the designation that a business, function, job, industry, or government service is “essential” can be summarized as follows.
The wellsprings of such designations are scattered references in the United States Code, much or all of it passed in response to 9/11, which together outline the need for “critical infrastructure.” Pursuant to those laws came executive orders, including an Obama-era presidential policy directive known as PPD-21. That 2013 directive lays out areas of the economy that the United States, as a matter of policy, needs to maintain as functional in order to keep the country safe from, e.g., terrorism and cyber threats. The document’s overall goal is to allow the “critical infrastructure” to continue to provide “essential services” in an emergency:
It is the policy of the United States to strengthen the security and resilience of its critical infrastructure against both physical and cyber threats. The Federal Government shall work with critical infrastructure owners and operators and [State, Local, Tribal, and Territorial] entities to take proactive steps to manage risk and strengthen the security and resilience of the Nation’s critical infrastructure, considering all hazards that could have a debilitating impact on national security, economic stability, public health and safety, or any combination thereof. These efforts shall seek to reduce vulnerabilities, minimize consequences, identify and disrupt threats, and hasten response and recovery efforts related to critical infrastructure.
PPD-21 resulted in a document promulgated by the Department of Homeland Security’s (DHS) Cybersecurity & Infrastructure Security Agency which opines as to what is and is not considered “essential.” The list is promulgated and updated from time to time by that agency.
“This list is intended to help State, local, tribal and territorial officials as they work to protect their communities, while ensuring continuity of functions critical to public health and safety, as well as economic and national security,” the DHS document states. And, in boldface type, it says:
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.
In other words, it’s not mandatory, and states can do as they wish.
Enter the novel coronavirus. What began mostly as a counterterrorism and counter-cyberterrorism document became a springboard for COVID-19 policy.
Some state governors have voluntarily copied and pasted most or all of the industries, jobs, and services on the DHS list into their own executive orders which detail what can remain open and what cannot during the current public health crisis. Some of those state executive orders do not directly reference the federal document. Others do, and they do it by saying whatever the federal government considers “essential” is automatically considered by the state as “essential.”
What remains to be seen is whether the DHS list will be updated to include houses of worship or religious nonprofits pursuant to President Trump’s Friday statement — or whether other presidential legal actions will be taken to protect churches as a matter of “essential” homeland security. Any gubernatorial executive orders which cite to and automatically utilize the DHS list would, in this hypothetical, automatically designate churches as essential. Those gubernatorial executive orders which do not automatically import the DHS list — assuming it is updated — would need attention from governors to designate churches as essential. That later possibility assumes — as the White House did — that governors will willingly lollygag after Trump’s dictum.
But, as the legal community at large and Law&Crime have articulated again, and again, and again, and again, Trump cannot force states to reopen by his own volition and cannot force governors to alter their executive orders. He could, in theory, merely threaten to retaliate by messing with future federal cash payouts to states, and his DOJ could help plaintiffs sue states in attempts to relax COVID-19 orders. Those are tactics which are legal. They are not directly coercive.
Some executive orders have, as President Trump said, allowed churches to remain open; they will not be affected by this suggested change in policy. Several federal judges have already rationalized that churches must be allowed to open so long as they strictly observe the same lengthy social distancing guidelines which must be followed by other essential businesses, such as grocery stores. In this respect, Trump’s pronouncement is not that far out of line with what states are increasingly legally expected to do, anyway.
[Featured image via Alex Wong/Getty Images.]
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