Executive Orders: Doing a Good Thing in a Bad Way

President Obama signs an Executive Order lifting restrictions on stem cell research as well as a Presidential Memorandum ensuring that sound science be protected from politics. (Photo credit: Chuck Kennedy, White House photographer)

During the campaign, Donald Trump promised to end an unconstitutional law that I have been lobbying against myself for more than 10 years: the Johnson Amendment, which muzzles churches and pastors with the threat of taxation. As Daniel Webster and U.S. Supreme Court Justice John Marshall are quoted as saying, “The power to tax is the power to destroy.”

While I expected that if Donald Trump got elected and really did follow through on the promise, he would use the bully pulpit to motivate congress to repeal it.  However, if reports of a leaked executive order draft are correct, President Trump has instead chosen to issue an executive order which instructs the executive branch to ignore this law.

Though I am very happy at the thought of the Johnson Amendment finally being scuttled, I believe the way President Trump has decided to go about it is short-sighted and ultimately wrong.

Before I explain why I believe this, we would all be well served (especially those who may not know what the Johnson Amendment is or what its impact is) to examine the history of Christian involvement in politics in America, as well as the circumstances around the implementation of the Johnson Amendment in 1954.

From the earliest days of America, Christianity has been intimately involved in our government. Before the settlers came off the Mayflower, they crafted a government document we know as the Mayflower Compact. The Mayflower Compact begins by stating that the colonists have undertaken the voyage to start their new colony in the New World “for the Glory of God and advancement of the Christian Faith”. Indeed, most of the colonial charters of the original colonies reference God and the advancement of the Christian faith as the reason for their existence. There is no (rational) denying that America was founded by Christians with a Christian purpose.

During the colonial era leading up to the American Revolution, churches throughout the colonies preached on God’s principles in government, more often than not drawing on what the Bible says about government, as well as the works of British theologian John Locke, who refined such Biblical principles of liberty and government to a clarity not seen before or perhaps since.

Even though America was settled and founded by deeply religious people, the First Great Awakening profoundly impacted America as a Christian people and eventually a Christian nation.

Churches in America preached on civic responsibility and Godly leadership, both on the part of citizens and on the part of magistrates. When taxes were levied in an unfair manner, preachers (not just politicians, not just pundits, but preachers) spoke out against it from the pulpit.

The churches of America so powerfully taught the people on Godly government and the duty of the people to stand against tyranny that the American Revolution was often known back in Britain as the “Presbyterian Revolution.” Indeed, the phrase “Resistance to tyranny is obedience to God” almost ended up on the great seal of the United States.  Pastors during the late colonial and revolution were sometimes known as the “Black Robe Regiment.”

Even after the American Revolution was completed and the United States was birthed, America’s pulpits continued to ring out and address what was right and wrong in the public square. Some of the most notable changes wrought by political involvement by America’s churches and pastors included the abolitionist movement to rid our nation of the scourge of slavery. And after that, up to the time of Martin Luther King Jr., many of America’s pulpits condemned the institutional racism and discrimination wrought on America’s black population by Democrat politicians.

If America’s pulpits had been silent from the beginning (as secularists on the Left so desperately want today), there would have been no civil rights movement, no abolitionist movement. Indeed, there would have been no American Revolution at all.

The Johnson Amendment, passed in 1954, actually initially had nothing to do with churches. Then Senator Lyndon Johnson didn’t like what some of his political enemies were saying about him, so to silence their nonprofit group, he slipped a provision into the tax code with virtually no fanfare or discussion, and it became law without anyone really thinking about the impact it would have on freedom of speech and religious liberty.

But it wasn’t too long before secularists realized that since churches, like secular nonprofits, don’t pay taxes (a tradition in American government that went all the way back to colonial times–remember: the power to tax is the power to destroy, and liberty-minded American leaders didn’t want the voice of moral conscience which birthed the American Revolution to be silenced; we have also long recognized the monumental good churches do for society, a job the government must pay to do–and do poorly–when the church does not live up to its responsibility), churches, too, could be muzzled using the Johnson Amendment. Democrats and other secularists never liked the church speaking up in the first place; after all, mouthy Christians had condemned their beloved institution of slavery, and then their tyranny against freed black Americans, and then against their glorious socialist revolution. Secularists don’t like hearing about God or what’s immoral in the first place, so slapping a gag on pastors and churches was a wonderful development for them. And to the shame of the American church, when these secularists waved the threat of losing their tax exempt status at them, pastors and churches folded like a cheap suit, proving that worship of the almighty dollar was more important than obedience to the Almighty God.

Churches and pastors have allowed themselves to be cowed by a paper tiger. Since the 1954 inception of the Johnson Amendment, no church has lost its tax exempt status under this provision. In fact, since around 2007, hundreds of pastors across America have openly and publicly, with great fanfare, brazenly defied the Johnson Amendment and preached overtly political sermons, even endorsing candidates…and not one of them have been prosecuted by the IRS, much less lost their tax exempt status. You see, even the IRS realizes the Johnson Amendment is an empty threat, an unconstitutional abomination that would not stand up to constitutional scrutiny…so they continue to get mileage from the bluff by simply allowing the spectre of fear to continue, rather than see this illegal act overturned.

Any church or pastor who, at this point in 2017, is using the Johnson Amendment as an excuse not to speak up for what is right in the public square…is just a coward who lacks the guts to be the salt and the light that Jesus Christ called us to be.

I was immediately concerned when President Trump issued his first flurry of executive orders. Knowing his disregard for constitutional limits and his admiration for dictators in other countries, I knew this could easily and quickly become an area of abuse for him. However, from what I could tell about his first several executive orders, they appeared to actually be exercised in a constitutional manner, i.e. rather than creating law with them or ignoring law with them as former President Barack Obama had done so often, these executive orders actually referenced existing law and provided clarification on carrying out those existing laws. That is how executive orders were intended since the founding of our country to be used.

However, this executive order has, sadly, reverted to the way Barack Obama and some other presidents have used executive orders: instructing our government to ignore the law.

Now, while it is true that the Johnson Amendment was unconstitutional from the beginning (and never should have been passed by congress, and never should have been signed into law by the president), the fact remains that it was passed into law and has been recognized (though improperly) as law for many decades.

I might be convinced that a president should just ignore a law that was glaringly unconstitutional (which the Johnson Amendment actually is), if it was freshly enacted over the president’s veto pen, or within the last few years of a previous president.

However, the Johnson Amendment has been in place for over 60 years, and has become an ingrained part of our cultural mindset regarding free speech and restrictions thereof. That is not to say that something long wrong should continue to be wrong, but that wisdom would dictate that we deal with such longstanding wrongs in a way that brings appropriate attention to the righting of that wrong. Bringing the proper amount of attention to the correction, rather than a quick executive order that is in and out of the public eye quickly (and can easily be undone by the next president who may like that wrong) is a great ‘teaching moment” for society as to why the wrong never should have happened in the first place, which helps better ensure the wrong doesn’t happen again at some point in the future. Further, as I just mentioned, ridding ourselves of the bad law the right way (i.e. repealing that law) makes it much harder for those in power in the future to re-do that wrong. If President Trump can, with the stroke of a pen, stop quashing free speech and religious liberty, then President [Democrat] in the future can, with the stroke of a pen, go back to trampling free speech and religious liberty. The best and proper way to deal with an unconstitutional law is not to ignore it, but to formally and legally repeal it.

Even if I were to be convinced that a president should ignore a patently unconstitutional law (and I can be so convinced, under certain circumstances), it would still be of critical importance to advocate for the congressional repeal of that bad law as soon as possible. That is the only way to restore respect for the rule of law (and the highest law of our land: the U.S. Constitution), and we must respect the rule of law, or we are really nothing better than a nation ruled by the opinions of whatever man or group of men are in power. And that is not a free nation.

The president does not have the authority to make law or ignore law, any more than the judiciary has such authority. If the president must ignore an unconstitutional law to uphold his oath to support the constitution, he should immediately begin calling on congress–and do so publicly, emphatically, and repeatedly–to repeal the law as soon as possible. Since we have a Republican president and a Republican congress, there is no excuse not to do so. I have not heard President Trump call a press conference calling on congress to repeal this unjust law, nor have I heard President Trump making a prime time address to bring the issue to the people and call on congress to repeal this unjust law, nor have I heard of President Trump holding discussions with the leaders of congress and calling on them to repeal this unjust law.

If conservatives are now going to start embracing the issuance of executive orders that do not have the support of law (or even contradict existing law), especially after having screamed and whined as hard as we did during the Obama years, then not only are we supreme hypocrites, we are forfeiting any moral grounds upon which to protest similar executive orders by a future Democrat president who need only say, “Well, I think Law X is unconstitutional, therefore I will ignore it.” We can know that’s BS all day long, but Barack Obama already did that, so we don’t have to guess that a future Democrat president would use that excuse to ignore the law.

If we are to restore the rule of law–so brutally and repeatedly abused under Barack Obama for eight years–we cannot engage in the same lawless tactics he did. We must set and live by a higher standard; even if the Democrats don’t learn by that example, we can hope the average American will, and would look to it to help us hold any future abusers accountable. But if we abuse executive orders like Democrats have abused executive orders in the past, the next time a Democrat president abuses them and we scream about it, the American people will just shrug their shoulders and go back to their Facebook pages (and probably snicker about how conservatives are such hypocrites as they do so).

Fortunately, a day later, I heard that after Trump had mentioned his intention to get rid of the Johnson Amendment at the National Prayer Breakfast, Congressmen Jody Hice (GA-R) and Steve Scalise (LA-R) introduced the Free Speech Fairness Act to get rid of the Johnson Amendment the right way, and that Senator James Lankford (OK-R) introduced a companion bill in the Senate.

The American people, especially advisers who have Trump’s ear, should encourage him not to attempt to get rid of the Johnson Amendment through executive order, and let lawmakers make law.  It is profoundly disturbing that I haven’t heard a single conservative express concern about all the executive orders Trump has been issuing, especially after we spent the last eight years criticizing President Obama for his excessive executive orders. After having also criticized George W. Bush for for his lack of conservative principle, have conservatives so quickly forgotten that politicians from BOTH major parties must be watched closely? Thankfully, these three lawmakers have done what should have been done to begin with; now let’s get behind the right way to correct this wrong.

Let’s do it right, conservatives. Let’s give Trump credit for the intent to do the right thing, correct his method as the wrong way to go about it, and get this Republican congress to do its job and repeal the Johnson Amendment the right way.

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Bob Ellis has been the owner of media company Dakota Voice, LLC since 2005. He is a 10-year U.S. Air Force veteran, a political reporter and commentator for the past decade, and has been involved in numerous election and public policy campaigns for over 20 years. He was a founding member and board member of the Tea Party groups Citizens for Liberty and the South Dakota Tea Party Alliance. He lives in Rapid City, South Dakota with his wife and two children.

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