About the ACLU’s [Update: FFRF’s] Challenge to the Promoting Free Speech and Religious Liberty EO

By Sam Brunson

Trump signed his Promoting Free Speech and Religious Liberty executive order earlier today. The EO was expected to order the IRS to stop enforcing the so-called Johnson Amendment against religious organizations. As Ben explained, by its language, it may have done significantly less—it appears to merely reaffirm the status quo for enforcement. Whatever its substantive effects, though, the existence of the order is no surprise, and, as has happened with any number of Trump’s previous EOs, the ACLU Freedom From Religion Foundation has already announced that it will challenge the EO in court. [Update: the ACLU looked at the EO and agreed with Ben that there was nothing there, and decided not to sue. The FFRF, otoh, decided to sue. So it’s the FFRF that will face these procedural hurdles before it has to face the substantive (or rather, lack of substance) ones.]

Leaving aside the question of whether this EO actually does anything substantive, it’s worth remembering that any judicial challenge to the executive order faces two significant hurdles: standing and administrative discretion.[fn1] It’s also possible that the Trump administration inadvertently made those hurdles easier to pass.

Standing

Standing is always a problem, of course, but it’s a thornier problem when challenging tax law. Standing generally requires an “injury in fact,” and it’s hard to show such an injury because the IRS isn’t enforcing some provision of the tax law against a third party. I mean sure, allowing a church or other tax-exempt organization to endorse candidates for office might injure me in some way, but it’s pretty clear that that injury (whatever it is) is not cognizable for standing purposes.

The Declaratory Judgments Act loosened the strict standing rules a little, allowing courts to lay out legal rights and obligations in some circumstances without an injury having occurred. But the Declaratory Judgments Act explicitly excludes federal taxes. And that exclusion is mirrored by the Tax Anti-Injunction Act, which prohibits suits “for the purpose of restraining the assessment or collection of any tax.”

And Establishment Clause standing doesn’t help. Under current Establishment Clause standing jurisprudence, getting Establishment Clause standing requires both taxing and spending. Since nonenforcement of the Johnson Amendment doesn’t involve giving money to religion, EC standing will be unavailing.

Administrative Discretion

Even if a challenger got past the standing issue, the Supreme Court has recognized a concept it calls “administrative discretion.” Basically, administrative discretion is a form of prosecutorial discretion. That is, administrative agencies have a lot of discretion in deciding whether or not to enforce certain provisions of the law. While that discretion is not unlimited, the Supreme Court said that it was Congress’s responsibility to limit such discretion. Congress can require the Executive branch to enforce a particular law, but it has to explicitly require such enforcement. Nothing in section 501(c)(3) requires the IRS to enforce the prohibition on campaigning.

Getting Past the Impediments

Can the ACLU (or another party) get past these two hurdles? It’s possible, though it won’t be easy. On standing, the Seventh Circuit has suggested that a party may have standing where it claims a tax benefit available solely to religious organizations and the IRS rejects that claim. Though it’s a different context and a different law, it’s possible that a non-religious tax-exempt organization could endorse a candidate and, if the IRS attempted to punish it, would have standing to challenge the religious exemption to the law. It’s probably a long shot, not only because it’s not clear that such an endorsement would give a tax-exempt standing, but also because it’s not clear that the IRS would impose any penalty on a non-religious tax-exempt organization. The campaigning prohibition goes pretty much entirely unenforced against religious tax-exempts, but it goes mostly unenforced against non-religious tax-exempts, too.

As for administrative discretion: in footnote 4 of Heckler v. Chaney, the Supreme Court holds out the possibility that where an agency has “‘consciously and expressly adopted a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities,” its inaction may not be shielded by administrative discretion. Subsequent cases have done nothing to explain whether abdication is, indeed, grounds to ignore administrative discretion, much less what constitutes abdication. But the Court left the possibility open. And if you believe that the IRS’s policy up until now represented an abdication of its responsibilities, the EO may provide evidence that the abdication has been adopted consciously and expressly.

Conclusion

Frankly, I see standing and the doctrine of administrative discretion as presenting pretty significant hurdles to any challenge of the EO. They’re not insuperable, of course, and Trump’s codifying (administrifying?) the IRS’s current practices may make the administrative discretion hurdle easier to pass, but standing really feels like a stretch to me.

[fn1] I’ve written about these standing and administrative discretion issues at greater length in the Colorado Law Review.