Appeals Court Throws Out NDP Ruling

The 7th circuit U.S. Court of Appeals threw out District Judge Barbara Crabb's ruling that the congressional legislation establishing the National Day of Prayer is unconstitutional.  This is a victory for social conservatives, but there are some caveats.  

1. The ruling does not say that the NDP is constitutional, but only says the Freedom From Religion Foundation has "no standing" because they can't prove that they were harmed by the legislation or its execution.  But using this "no standing" doctrine is dangerous, because it allows courts to pick and choose which violations of the Constitution should be enforced and which one shouldn't.  For example, the courts have used this doctrine to make the 27th amendment a "dead letter" (i.e. it is basically now unenforceable--the congress can violate it as much as they want with no repercussions).  It would have been much better if the court had simply ruled that such proclamations do not violate the Establishment Clause.

2.  Though the National Day of Prayer and the Presidential proclamation of it are not unconstitutional, I believe that in fact the legislation establishing the NDP is unconstitutional.  The law commands the President to make the Proclamation.  Though the President is required by the Constitution to "faithfully execute" the laws passed by Congress, the Congress does not have the power to command the President to do just anything they want.  Its powers are limited to those explicitly listed in the Constitution, according to the 10th amendment.  There is nothing in the Constitution which gives Congress the power to command the President to make a proclamation of any sort except possibly a State of the Union speech (see Article II, section 3).  Now the President also cannot exercise powers which are not given to him through the Constitution, but the proclamation of a day of prayer is not an exercise of powers, and therefore it is not unconstitutional.  But commanding the President to make a proclamation clearly is an exercise of power.  This is something that 7th circuit should have alluded to.  

In any case, just because the Court (or any part of the government) says something is true, that does not mean that it is true.  This ruling could later be overruled and the NDP could again be unconstitutional.  But that would not be the end of world!  The most important thing to remember is that no matter what they say, they can't stop you from setting aside this day as a day of prayer and fasting for our nation.  Who really cares if the President makes the Proclamation?  Its not like as if there would be sincerity in it anyway.