UC Irvine Law Review

This Article argues that the widespread incorporation of religion across the federal government constitutes the executive establishment of religion in violation of the First Amendment because it favors certain religious tenets or beliefs over others. The structural and substantive restraints imposed on presidential power have been inadequate to prevent executive establishment, and, in some ways, they have facilitated it. The rise of the modern administrative state coincided with a time of doctrinal flux in Establishment Clause jurisprudence and the enactment of the Administrative Procedure Act (APA). The absence of a clear, workable constitutional standard invited presidential interpretations that strained the meaning of precedent. The APA facilitated uniform policymaking and left room for the adoption of substantive policy lenses that helped to streamline the incorporation of religious tenets across executive agencies and programs.

The executive establishment of religion entails the promotion of, or collaboration with, specific religious tenets or organizations across the administrative state. It began in earnest during the Reagan administration and is currently embedded throughout federal policies and programs in the form of faith-based initiatives and broad religious exemptions. Executive establishment is uniquely destabilizing to the body politic because it directly conflicts with the unifying purpose of the Establishment Clause by undermining political unity and fostering potential divisiveness on the basis of belief and ideology.

The first section of this Article outlines the structural and substantive limitations imposed on the President by both the U.S. Constitution and the APA. The second section details the evolution of executive establishment and explains how the confluence of shifting U.S. Supreme Court doctrine and the push for administrative uniformity created the perfect storm that led to the incorporation of particular religious tenets and organizations in federal policy and programs. The final section makes proposals for reform after examining the existing institutional safeguards, specifically executive forbearance, judicial review, and legislative oversight. A brief conclusion warns that the continued unchecked adoption of specific religious tenets and religiously motivated policies is inherently exclusionary and directly undermines the unifying spirit of the Establishment Clause.