Friday, May 5, 2017

Gray Friday Silliness: Not An "Order" -- Just "A Suggestion" -- More Kabuki Theatre, From 45's Pen...

Three or so months ago, Mr. Trump promised (and his staff drafted, and circulated) a sweeping putative executive order that would have imperiled LGBTQ rights, made being a woman a largely uninsurable "pre-existing condition", threatened minority religious faiths, and violated the spirit and letter of the First Amendment on the topic of religious freedom -- and on and on. . .

Fast forward to May 4, 2017: what 45 actually signed yesterday is so watered-down, and neutered, that it almost exclusively lacks the force of law. It is, in the main, just a series of goofy, ineffectual and entirely-unneeded. . . "suggestions."

It is a blessing actually that the Trump Administration understands so precious little about US constitutional law. It seems very few bona-fide pastors or rabbis were asking for the explicit protection to endorse a specific candidate from the pulpit, but now they have a "softly spoken suggestion" that no one will bother them, if they do. [It is likely that the Johnson Amendment wouldn't survive a USSCT review, on such a fact pattern -- in any event, so this order seems to be a bit of unneeded puffery. If you'd like a more detailed, section by section analysis -- here is a good NPR explainer on just how ineffectual this order actually is.]

Tellingly, the "order" uses aspirational verbs -- i.e., "consider" not "shall", for example -- and says "to the extent allowed by law" (to save it from attack, in the courts). So it is. . . . a nothing burger. Moreover, the one bit of commanding "shall" language embedded in it simply restates existing First Amendment case-law:

". . . .In particular, the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective. . . ."

So 45 continues to waste time and taxpayer money on photo-op PR nonsense. . . while real problems languish, awaiting even a casual review from his underqualified, and clearly skeleton crew. So it goes. Even so, I am smiling as I walk in, with a "Guardians 2" opening night ticket, tonight.


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