WASHINGTON (CN) — Though the number of Covid-19 infections continues to rise around the United States, President Donald Trump said on Friday that he would override governors if they failed to open places of worship over the weekend.
“The governors need to do the right thing and let these very essential places of faith to open right now for this weekend and if they don’t do it, I will override the governors. In America we need more prayer, not less,” the president said in brief remarks from the White House.
He did not stay for questions.
If the president were to follow through with the threat, and effectively assert executive overreach into states, the maneuver on its face would technically be violation of the 10th Amendment of the U.S. Constitution.
That amendment specifically states: “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.”
“President Trump does not have the authority to override the governors because the decision of whether to reopen the churches falls within the power that the Tenth Amendment reserves to states,” professor Franita Tolson of the University of South Carolina Gould School of Law said in an interview Friday. “If the president issues the order, it is likely that the governors in states where it is not safe to open houses of worship will refuse to open the churches and file lawsuits challenging the order.”
During his brief remarks Friday, Trump called it “not right” that churches are closed during the pandemic while liquor stores and abortion clinics remain open.
“I’m calling houses of worship essential,” he said.
If governors take issue with this, the president welcomed them to ring him up.
“If there’s any question, they’re going to have to call me, but they’re not going to be successful in that call,” he said Friday.
Tolson warned that, below the surface, Trump’s move has deeper implications for the White House.
“Because the president asserts a broad view of executive authority that is not supported by the constitutional text or the Supreme Court caselaw,” she said. “If the Supreme Court later endorses the president’s position, however, then this will raise questions about the integrity of the Constitution.”
Trump indicated he would issue such an order a day earlier while touring a makeshift ventilator production line at a Ford Motor plant in Michigan, telling reporters he directed the Centers for Disease Control and Prevention to issue new reopening guidance for places of worship.
The CDC first issued reopening recommendations to the White House over a month ago. Spread over 68 pages, the original CDC reopening guidelines included suggestions for houses of worship as well as restaurants, schools, and businesses. The White House shelved the recommendations, however, in favor of a more general packet, and the latest version that the CDC released Tuesday stands at 60 pages.
Shoring up religious rights has long been a focus the Trump administration, and officials at the Department of Health and Human Services were reportedly spurred this week’s shakeup by opining that pandemic guidance targeted places of worship unfairly.
Several churches throughout the U.S. already planned on resuming services as more states lift stay at home orders. In Florida, Rodney Howard Browne, evangelical pastor for the River at Tampa Bay Church, defied a county-issued stay-at-home order last month and was promptly arrested after holding multiple services with large groups of worshippers.
Browne was charged with unlawful assembly and found in violation of local health and safety regulations, but Florida prosecutors tossed the case last Saturday saying he no longer posed a danger to fellow Floridians.
On Friday, following Trump’s announcement at the White House, Browne tweeted at the president, thanking him for “standing against the globalist agenda to shut up and silent the church.” [sic]
Chad Oldfather, law professor at Marquette University Law School in Milwaukee, Wisconsin, said he expects that Trump’s announcement will embolden churches long before federal enforcement becomes an issue.
“You don’t even need to think about the Tenth Amendment because, the way the Constitution is set up, a branch of the federal government only has the power to do something if the Constitution gives it that power, and there’s nothing that would give such a power to the president to issue such an order,” he said. “I doubt anyone would actually attempt to enforce the order, but I could imagine it being taken by members of congregations as giving them the authority to open up, which would then put states in the position of having to enforce their stay-at-home orders. That could of course get ugly.”