Can Houses of Worship Re-open?

(The reader should note that the purpose of this article is not to question the validity of the re-opening of the houses of worship themselves, but to examine the president's ability to exert such power over the states. This article would be subjected to the same type of scrutiny if it was concerning restaurants or gyms and would receive the same treatment if carried out by a democratic president.)

In a (very) recent press conference on May 22nd, President Trump announced that he is deeming Houses of Worship such as Synagogues, Churches, Mosques and Temples as essential services. This would mean that under all current lockdown or stay at home orders, houses of worship would no longer be forced closed and that theoretically, people could return to normal forms of prayer rather than over an electronic medium. However, many have asked whether this move is feasible (let alone constitutional) due to the several legal entanglement that have previously prohibited the federal government from interfering with state matters.

The simple answer to the question posed is no. Unless the President wants to ignore or re-write the constitution he cannot exert power over the states. For those of you asking where this is outlined, I point you to the 10th Amendment to the United States Constitution which says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” To clarify: any power that isn't given to the Federal Government is granted to the state and local legislatures to be able effectively govern their citizenry. The specific power not granted to the federal government that pertains to the houses of worship are called the "Police Powers." These powers grant the states full control over any matter that pertains to the health, safety and wellness of their citizenry. For instance, this may include a state wide-curfew or a stay at home order. This amendment is the reason why New York City has the NYPD (New York Police Department) rather than the USPD (United States Police Department.)

The most the president can do is to attempt to persuade the governors to deem houses of worship as essential, but he himself cannot force the states to do anything. A concern that some govenors and pundits hold is that the president will withhold vital coronavirus aid to the states in an attempt to force them to comply with his wishes. Not only does this violate the 10th amendment as the federal government (the president) is taking control of a matter concerning the health, safety and wellness of a state's citizenry (a violation of the "Police Powers" portion of the amendment,) but the president also risks violating the 5th Amendment and the Take Care Clause stated in his oath of office.

The 5th Amendment assures all citizens the right to due process. The Supreme Court understands the right to due process as: "securing the individual from arbitrary exercise of the government." Executive abuses of this power can be described as an abuse that “shocks the contemporary conscience." If the president were to withhold supplies to attempt to force the governors into re-opening houses of worship, this would most likely be seen by the Supreme Court as far exceeding the bar of "shocking the contemporary conscience."

The Take Care Clause is a clause in the constitution that states that the president must "take care" that the law is faithfully executed (as stated in a president's oath of office.) As the President is seen as the representative of the people in the Executive Branch, it is widely regarded that a president has two principal responsibilities: A duty of care which states that they must “act with the care, competence, and diligence normally exercised” by a person in that position, and a duty of loyalty meaning that the president must serve the American people in an unbiased manner, not in their own interests. President Trump would violate both of these clauses if he were to withhold aid from the states. He would be neglecting his duty of care by letting the sick go without proper medical supplies and his duty of loyalty by demanding personal loyalty of governors rather than blind loyalty to the electorate as both he and the governors are constitutionally expected to give. Furthermore, in the Federalist Papers, Alexander Hamilton explained that the president cannot “renounc[ing] or desert[ing] the independence intended for him by the Constitution” in this case through states complying with his decree to “appeal[] to his avarice.” as an explanation for several clauses throughout the constitution protecting the president from abusing his power. Those critical of this presumptive move would most likely quote the last portion by claiming that the president is forcing the states to "appeal to his avarice."

Although Trump himself may claim that “If there’s any question, they’re going to have to call me" and that "they're not going to be successful in that call" there is no way that the president can force any state, blue or red, to re-open their houses of worship. The Founders wrote the constitution with the hope the federalism would ensure that an American tyrant would never rise to power and that the Federal Government could never abuse nor force the states into any positions that could be seen as undermining the main pillar of our government. A government of the people, by the people and for the people.

Citations:

Galston, William A. “Trump or Governors: Who's the Boss?”Brookings, Brookings, 13 Apr. 2020, www.brookings.edu/blog/fixgov/2020/03/25/trump-or-governors-whos-the-boss/.

“Tenth Amendment - U.S. Constitution.”Findlaw, constitution.findlaw.com/amendment10.html.

“Trump Can't Play Politics With Aid to States.”Lawfare, 25 Apr. 2020, www.lawfareblog.com/trump-cant-play-politics-aid-states.

“Fifth Amendment.”Legal Information Institute, Legal Information Institute, www.law.cornell.edu/constitution/fifth_amendment.

“Coronavirus Live Updates: Trump Calls Houses of Worship 'Essential Services' and Urges Reopening.”The New York Times, The New York Times, 22 May 2020, www.nytimes.com/2020/05/22/us/coronavirus-live-tracker.html.

“Government of the People, by the People, for the People.”Clingendael, www.clingendael.org/publication/government-people-people-people.

“Article II.”Legal Information Institute, Legal Information Institute, www.law.cornell.edu/constitution/articleii.

“Equal Protection.”Legal Information Institute, Legal Information Institute, www.law.cornell.edu/wex/equal_protection.

The Avalon Project : Federalist No 73, avalon.law.yale.edu/18th_century/fed73.asp.

Souter, et al. “Browse Cases.”Legal Research Tools from Casetext, 26 May 1998, casetext.com/case/county-of-sacramento-v-lewis.