This column by ACRU General Counsel Ken Klukowski was published September 28, 2017 by Breitbart.
President Donald Trump can score a triple win by superseding a policy manual from the Obama administration and allowing churches to help relief efforts in Texas, Florida, and Puerto Rico. It would be good policy and good politics, and more importantly help millions of Americans in desperate need.
Churches in America — like all over the world — showcase their love of God and their fellow man by providing help to those in need, even at great sacrifice. Yet although all sorts of nonprofit organizations can receive federal aid to fund their efforts to provide relief during a disaster, churches are explicitly excluded from such federal aid programs.
This ban on churches aiding the needy is not found in some federal law, but instead in a nonbinding policy manual at the Federal Emergency Management Agency (FEMA).
The Stafford Act is the federal statute that governs disaster relief and emergency assistance from the federal government. Section 308 authorizes the president of the United States to issue regulations to ensure there is no “discrimination on account of … religion.”
Nonetheless, FEMA published a document during the Obama administration, entitled the Public Assistance Program and Policy Guide, that we republished in April 2017. In Appendix B, on pages 170 and 171, the manual says that a nonprofit is ineligible if more than 50 percent of its facility’s square footage is used for religious purposes. Basically, that means churches are ineligible.
Beginning on page one, the manual claims that it is merely implementing the Stafford Act. But its anti-church, anti-religion content in fact violates Section 308 of that Act of Congress. It also flies in the face of the Supreme Court’s 2017 decision in Trinity Lutheran Church v. Comer, where the Court held that government cannot exclude churches from general grant programs solely because they are churches. The Court ruled such restrictions are unconstitutional because that sort of exclusion violates the Free Exercise Clause of the First Amendment.
Although Congress should amend the Stafford Act to explicitly allow churches to participate on equal terms with other nonprofit organizations, President Trump has the power to fix this now for the victims suffering from Hurricanes Harvey, Irma, and Maria. He does not need to wait for Congress.
President Trump can issue a presidential memorandum to the acting secretary of the U.S. Department of Homeland Security (DHS) and the director of FEMA, ordering them to disregard the Obama-era manual because the current president has determined that the manual — which has no inherent force of law, as it was not a formal regulation promulgated through the notice-and-comment requirements of the Administrative Procedure Act — violates both the Constitution and federal law (the Stafford Act), and instead that DHS and FEMA will immediately grant access to churches to apply to participate in federal relief efforts.
There are three reasons for the president to issue such a memorandum right away.
First, it will provide immediate help to millions of Americans who are suffering. Citizens in Texas, Florida, and now Puerto Rico are in desperate need. Churches are trying to help them right now. It takes time to move government personnel and equipment into place, but those churches and church members are on the ground at this very moment. Promise those churches that they will have the funds to help those who are in need, and they will act immediately (as in fact many are already doing), before the money even arrives.
Second, it will be the perfect example of a private-sector CEO cutting through government red tape to produce immediate results, making the government operate like a business. Millions of Americans voted for Donald Trump precisely because they envisioned him acting in such a fashion. It makes the government work for the people.
And third, it is a practical, common-sense way to support religious liberty. President Trump should mention his Executive Order 13798, supporting religious liberty, in his memorandum to DHS and FEMA. He can be a friend to America’s churches by doing this, enable those churches to help their fellow Americans, and also enable those churches to repair their own facilities that have been damaged.
Each of these three items should poll very well. It is a perfect example of good policy making good politics.
The components are already in place for the president to act. On September 20, the religious-liberty law firm First Liberty Institute sent a letter to FEMA Director Brock Long, informing him that First Liberty is representing Texas churches seeking to participate in relief efforts to help those in need.
“These [churches] withstood displacement, human suffering, and millions of dollars in flood damage,” the letter begins. “And, like the neighborhoods and communities they serve, they need immediate aid and relief.”
“However, under the [FEMA manual], churches and other religious organizations, including our clients, are ineligible for disaster relief simply because they are churches,” the letter continues. “President Trump may be the only means by which churches and religious organizations in Texas and Florida [and now Puerto Rico] obtain the disaster relief they so urgently need.”
Texas Gov. Greg Abbott and Attorney General Ken Paxton also sent their own letter on September 20, this one directly to President Trump at the White House. The letter begins by saying that when the first hurricane hit, “scores of churches and houses of worship jumped into action to serve thousands of Americans in their time of need.”
“Regrettably, due to a FEMA policy whose terms predate your administration, the same churches that are playing an instrumental role in the recovery effort cannot receive disaster relief funding to rebuild their own buildings,” the letter continues.
They then quote President Trump’s own tweet from September 8, where he said, “Churches in Texas should be entitled to reimbursement from FEMA Relief Funds for helping victims of Hurricane Harvey (just like others).”
“We couldn’t agree more, and we write to propose that your view is consistent with federal law and constitutional standards,” Abbott and Paxton say. As two distinguished constitutional lawyers, they then set forth their own legal analysis — which mirrors First Liberty’s — as to why both the Constitution and federal law make churches eligible and empower the president to act.
This is an opportunity for bold leadership by President Trump. He can help millions in need as well as churches and people of faith, and show the country how presidential power can drain the swap in Washington, D.C., to make the government serve the people the way a company serves its customers, validating the trust that the nation placed in him by choosing him to lead the nation.