Law Professors Miss the Constitutional Forest for the Legal Trees
By: Mike Maharrey
I ran across an article by three law professors published by The Atlantic that serves as another reminder that we should never listen to law professors talking about the Constitution.
The article is headlined, The Separation of Church and State Is Breaking Down Under Trump. The chief complaint brought by our trio of intrepid law professors is that “religious groups are getting special treatment from the government’s pandemic-relief efforts.”
In a nutshell, churches and religious organizations received a special exemption from the Small Business Administration that allowed them to tap into federal funds through the CARES Act Payment Protection Program that similar-sized non-religious organizations didn’t qualify for. As the article summed it up, “The SBA’s implementation of the program thus privileges nationally affiliated religious organizations over their nonreligious counterparts.”
According to our legal scholars, the SBA rules treated Planned Parenthood particularly egregiously. But this isn’t just about abortion politics.
There is, however, a more fundamental problem with these recent attacks on Planned Parenthood—a constitutional defect that even critics of the organization should recognize. By privileging religious organizations over secular nonprofits, the SBA and GOP senators are advancing a position that contravenes the establishment clause, which forbids the government from giving special subsidies to religious organizations.
Our three legal amigos go prattle on using over 1,500 words to parse out this argument. They cite plenty of Supreme Court cases, but never once mention the original meaning of the Constitution itself. They make a fine legal argument and completely miss the more basic constitutional issue: the federal government doesn’t have any constitutional authority to hand out funds to any of these organizations or businesses.
The Constitution does not delegate Congress the authority to issue stimulus checks to chosen businesses. The problem isn’t with the way the Payment Protection Program is being run. The problem is that it exists in the first place.
In a nutshell, supposedly our brightest and best in the field of American law are arguing about the constitutionality of a process to distribute unconstitutional funds.
Talk about missing the forest while starring at the trees.
Most likely, our legal-eagles would appeal to the general welfare clause as justification for the economic stimulus package. This rational falls flat. Or perhaps they would channel the “commerce clause.” This falls flat as well.
Herein lies the problem with law professors. The know constitutional law. They don’t know anything about the Constitution.