President Donald Trump’s latest Executive Order (EO) was titled, “Promoting Free Speech and Religious Liberty” but whether it does either remains to be seen. Observers said the EO doesn’t change existing regulations much, if at all, since the Internal Revenue Service (IRS) so rarely enforces the Johnson Amendment, which prohibits charities from directly endorsing political candidates and electioneering .
The American Civil Liberties Union (ACLU) initially promised to file suit against the administration regarding the executive order but determined, after a review, that the order does not meaningfully alter the ability of religious institutions or individuals to intervene in the political process, according to Executive Director Anthony Romero. The EO signing “was an elaborate photo-op with no discernible policy outcome,” he said. “The order portends but does not yet do harm to the provision of reproductive health services,” he added.
“The directive to federal agencies to explore religious-based exceptions to healthcare does cue up a potential future battle, but as of now, the status quo has not been changed,” Romero said. “What President Trump did was merely provide a faux sop to religious conservatives and kick the can down the road on religious exemptions on reproductive health care services,” he said in a statement.
The EO states that it will be the policy of the executive branch to “vigorously enforce federal law’s robust protections of religious freedom,” and will honor and enforce those protections. The Treasury Secretary will ensure that the department does not take adverse action against any organization for “speaking about moral or political issues from a religious perspective, where speech of similar character has not ordinarily been treated as participation or intervention in a political campaign on behalf or opposition to a candidate for office.”
How that differs from existing policy or law, if at all, is unclear. Charities and churches are allowed to comment publicly on issues of the day so long as political activity is not a substantial portion of their work and they do not directly endorse a candidate.
In another section of the EO, the Treasury Secretary, Labor Secretary and Health and Human Services Secretary are directed “to consider issuing amended regulations, consistent with applicable law to address conscience-based objections to the preventive-care mandate.”
This EO is consistent with other executive orders that administration has issued, according to John Cooney, a partner in the regulatory group of Washington, D.C., law firm Venable LLP. “All administrations use executive orders when they think it would serve the purpose a president has in mind,” said Cooney, who ran the executive order process in the Reagan White House.
“This is just a policy preference but that doesn’t mean that it doesn’t have an impact on the calculus of an agency,” Cooney said. This EO instructed several secretaries to consider issuing revised regulations on the Johnson Amendment and the preventive care mandate.
The president is instructing appointees, as heads of federal agencies, within the range of discretion they possess under federal statutes. “All administrations have done this when they want to announce their policies publicly,” Cooney said. It’s the most formal format you can use and it’s covered extensively by the press and ultimately published in the Federal Register, he said. The same instructions could have been passed along quietly from the president or staff to department secretaries. “That kind of communication is more typical,” he said.
Since Reagan, most presidents have averaged anywhere from 30 to 50 executive orders per year during their tenure, according to the American Presidents Project. President Trump so far has issued 24.
Administrations have used executive orders to express policy preferences of a president and want obtain broad, public dissemination. Sometimes statutes delegate authority directly to the president as is most often seen in the case of terms and conditions under which federal contracts can be procured. President Trump revoked orders by the Obama administration, such as providing greater overtime payments. That’s one where the president can change underlying law but it depends upon Congress giving the authority. More recently, President Trump issued an executive order about designations of protected national monuments and management of federal lands.