RFRA & Federal Statutes

[Hamilton02 at aol.com]

I think there is an overlap between the enumerated powers point and the  
separation of power point with respect to RFRA when applied to federal  law.  
Normally, strict scrutiny (i.e., refusal to defer to legislative  judgment) is 
reserved for instances where there is reason to suspect  unconstitutional 
purpose.  RFRA tells courts to apply strict scrutiny to  its neutral, generally 
applicable legislative actions, where there is no reason  to suspect an 
unconstitutional purpose.  Thus, Congress has placed courts  in the position of taking 
over their enumerated power to make the law and public  policy.  So it is a 
problem of delegation, which occurs when one branch  takes over the enumerated 
powers of another branch.  I don't think the  common law theory solves this 
problem.  Case-by-case adjudication, over the  course of time, does not cure the 
courts' institutional incompetence problem  here.  But I may not be giving 
Eugene his due here, and welcome further  enlightenment.
 
Marci
 
 
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