Question: What does the Trump Administration’s policy decision to separate immigrant children from their parents at the Mexican border have in common with its policy decision to refuse to enforce IRS curbs on church involvement in political campaigns? Answer: Nothing.
And that is a problem.
This week, Homeland Security Secretary Kirstjen Nielsen told reporters that border separation was mandated by federal law. It was, she said, the “product of loopholes in our federal immigration laws” and that Congress “alone can fix it.” And she said of those trying convince the White House to stop the practice: “Congress is asking those of us who enforce the law to turn our backs on the law.”
Whether the law actually requires the government to separate children from parents is the subject of significant doubt. But the Administration’s absolute claim that it must enforce laws, even if it disagrees with them, turns out to be somewhat…situational.
Ignoring the Johnson Amendment
Twice in the last three weeks, in formal remarks, Vice President Mike Pence said the Administration would ignore another statute: The Johnson Amendment that bars 501(C)(3) non-profits, including houses of worship, from participating in political campaigns for, or against, a candidate.
Pence could have not been more explicit. Speaking to the Family Research Council on May 25, he said the Johnson Amendment “will no longer be enforced under this administration.” He repeated the vow in a speech to the annual meeting of the Southern Baptist Convention last week.
Pence is merely echoing President Trump, who has made no secret of his commitment to repealing the law. Candidate Trump included it in his campaign platform and has repeated the vow frequently since his election. A year ago he signed an executive order that he said repealed the law. Of course, the president can’t repeal a legislative statute by fiat.
Congress has been clear
For decades, Congress has been clear about its views on electioneering by 501(c)(3)s. The Johnson Amendment has been on the books for nearly 65 years. Congress slightly toughened the law in 1987. And although it has had multiple opportunities to repeal or scale it back over the past 18 months, Congress has explicitly declined do so.
The House has tried unsuccessfully to use spending bill riders to limit the ability of the IRS to enforce the Johnson Amendment. Last year, conservative lawmakers tried, but failed, to use the Tax Cuts and Jobs Act to repeal the law.
And that is why the Administration’s commitment to ignoring this law is so concerning. It seems clear that a majority in Congress does not want to change the legal restrictions on politicking by churches and other 501(c)(3)s. Yet the Administration vows to ignore the law.
In fairness, the IRS has rarely enforced violations of the Johnson Amendment by houses of worship. And its published guidance gives faith communities wide latitude to engage in in limited political, or quasi-political, activities. The practical effects of Pence’s promise to ignore the statute will be modest. But the message it sends—that the White House can tell the IRS which tax laws to enforce and which it must ignore—are deeply troubling.
Political decisions
It should be noted that Trump is not the first president to refuse to enforce laws with which he disagreed. In 2012, President Obama ordered the government to grant work and residency permits to immigrants who were brought to the US as young children, even though the Administration had no statutory authority to do so. In effect, Obama used his presidential power to implement provisions of the DREAM Act that Congress had not enacted.
And the IRS and other government enforcement agencies make choices all the time about how they’ll allocate scarce resources. They may choose to ignore a violation of the law because it is minor, or because they are focused on other priorities. But there is a significant difference between administrative judgments by career officials and policy decisions by a president or his senior staff to ignore some statutes while enforcing others for strictly political reasons.
Even by contemporary standards, the contrast between Trump’s actions on the border and his decision to ignore the tax law is striking. And deeply troubling.
