Trump's Religious Speech Executive Order May Be Unconstitutional

By Douglas V. Gibbs
Author, Speaker, Instructor, Radio Host

The First Amendment, which enumerates five natural rights (religion, speech, press, assembly, and the right to petition the government for a redress of grievances), begins with the words, "Congress shall make no law."

Any law, executive order, judicial ruling, or hiccup by the federal government regarding our God-given rights associated with those five natural rights (and in truth, ALL of our natural rights) is unconstitutional, and therefore, illegal.

In 1954, Senator Lyndon B. Johnson (future president, and avowed hard left socialist) added an amendment to a bill for the Internal Revenue Code that essentially established a prohibition against all 501(c)(3) non-profit organizations from endorsing or opposing political candidates.  While it did not specifically disallow these organizations from engaging in "any" political discussions, the Johnson Amendment essentially carried that effect.  The goal was to silence charitable foundations, and churches, so that they would no longer engage in political discourse.  The excuse for the unconstitutional handcuffing of the right to free speech and religious liberties was the misinterpreted concept of the separation of church and state.  Despite the provision introduced by Johnson, the unenforceable piece of legislation has served more as a scare tactic, than a mandate.  No church has ever lost its non-profit status as a result of too much political talk, endorsing a candidate, or preaching about politics.

However, regardless of the fact that any and all federal legislation regarding religion or the freedom of speech is unconstitutional, these laws illegally exist.  The fact that they are unconstitutional does not change the protocols regarding how to eliminate them.  The provisions that challenge religious speech, and religious freedom are largely legislative, or judicial (activist judges acting in a legislative manner).  While executive orders may be used to delegate through the executive branch the rules regarding executing a federal law, executive orders cannot be legally used to refuse to execute a federal law (whether it is constitutional, or not).

In Article II of the U.S. Constitution, the document instructs the President to "faithfully execute the laws of the United States."  If a law needs to be struck down, or repealed, the duty falls squarely on the shoulders of Congress.  Even the judges, despite what we've become accustomed to them doing, cannot legally strike down laws.  In Article I, Section 1 of the U.S. Constitution, "all" legislative powers are granted to the Congress, and to no other part of the federal government.  The power of judicial review is not granted to the courts anywhere in the U.S. Constitution.

While I appreciate what President Trump is trying to do with his religious freedoms executive order on the National Day of Prayer, I implore him to send his suggestion to Congress for their consideration.  If we are going to be the party that says it follows and operates in line with the rule of law, we need to act like it, and not use executive orders for every whim, and promise.

That all said, I have not yet read Trump's executive order.  I understand that it tries to take a stab at the Johnson Amendment, but does not address attacks against religious freedom by fascist groups like the homosexual lobby.  Perhaps, in the executive order, Trump addresses laws that may possibly exist with provisions allowing the President to use executive orders to make adjustments as he deems necessary to the Johnson Amendment (though, I know of none).  After all, his travel ban executive orders did follow legislation that offered the authority to the President to prohibit persons temporarily by executive order, should he deem them a danger to national security.  But, in the case religious freedoms, I am not as confident that such leeway for the President exists.

In the interest of remaining constitutional, and able to fend off attacks by the liberal left, I believe it is in the best interest of this administration to use Congress first in the attempt to dismantle unconstitutional intrusions by the federal government into the lives of Americans.  With this latest attempt to protect religious liberties, President Trump should not use executive orders, and instead, send a suggestion to Congress for their consideration.  Make the action to protect religious freedoms a piece of legislation, and save the executive orders for the things they were really meant for.

-- Political Pistachio Conservative News and Commentary