The executive order that President Trump signed today doesn’t go as far as some hoped and others feared, mainly putting a thumb on the scales for future regulatory and enforcement actions. Its three main parts are as follows:
- Declares protecting religious freedom to be executive‐branch policy, underlining an intent “vigorously enforce” the law’s “robust protections for religious freedom.”
- Instructs the Treasury Department effectively not to enforce the Johnson Amendment — which prohibits nonprofit organizations from endorsing or opposing political candidates — against religious organizations.
- Directs the Secretaries of Treasury, Labor, and Health & Human Services to issue new regulations that “address conscience‐based objections” to Obamacare’s preventive‐care mandate.
All of these are salutary, but none are earth‐shattering. The IRS, which ultimately answers to Treasury Secretary Steve Mnuchin, already has vast discretion in enforcing the Johnson Amendment. HHS also has broad authority over how and against whom to apply the preventive‐care mandate, but its freedom of action has already been restricted in several ways by the Supreme Court’s rulings in Burwell v. Hobby Lobby and Zubik v. Burwell (a.k.a. the Little Sisters of the Poor case) — and Secretary Tom Price were already expected to accommodate the religious nonprofits in a way the Obama administration refused to.
So all this move really does is signal the direction of executive policy preferences, which at the margin will lead agencies to implement federal statutes in a way that’s more solicitous of the freedom of religion, expression, and conscience. That’s a good thing, and a welcome change from the Obama years, but it’s not a radical (or any) change in the law.