RFRA & Federal Statutes
Hamilton02 at aol.com
Hamilton02 at aol.com
Fri Dec 9 08:57:57 PST 2005
The havoc caused by a RFRA-type law is that Congress is encouraged to make
law without actually deciding the hard questions. It is akin to its
delegation of decisionmaking to the executive branch. RFRA is a prime example of the
problem: Congress spent 3 years hearing testimony on how wrong the Court is,
but heard next to no testimony on the actual impact of a law that was going
to hobble every law in the country. Congress was grandstanding, not
considering the public good. It is a law, by its very nature, that severely
undermines the goal of republican democracy that elected representatives make
deliberative decisions about the public good. If a law has such scope no legislature
could ever consider even a meaningful portion of its effects, like RFRA, it
is not legitimate legislation under a theory of republican democracy.
For similar reasons, the format of RFRA also violates the Establishment
Clause, because it is blind accommodation. It is one thing to consider the facts
of employment discrimination on the basis of religious belief and conclude
that it is necessary to avoid entanglement by creating such an exemption in
Title VII. Amos. With RFRA, though, Congress gave religious entities the
power to get around federal laws in federal court without beginning to consider
the public policy consequences of its actions. The only explanation is its
intent (demonstrated plainly by the legislative history) to benefit religious
organizations, regardless of public policy.
In a message dated 11/15/2005 5:07:54 P.M. Eastern Standard Time,
VOLOKH at law.ucla.edu writes:
An omnibus statute of constraints does have a constitutional
warrant -- it just relies on many enumerated powers, not one. But
what's wrong with that? If it somehow added the enumerated powers
together in order to reach behavior that was beyond the scope of any
particular power, that might be troublesome. But all RFRA is doing is
using the Commerce Clause to affect Commerce-Clause-based laws, the
military powers clauses to affect laws based on those powers, and so on.
What's the big deal? As Doug Laycock pointed out, the Administrative
Procedure Act seems to do the same. So?
As to slippery slope concerns, what horrid things are at the
bottom of the slope? The APA? RFRA itself? A statute that, for
instance, provides certain defenses -- self-defense, necessity, etc. --
to any federal crimes, whatever power they're authorized under? Where's
the unjustifiable enactment? Where's the havoc? Where's the threat to
In any case, I recognize that Bobby may not be endorsing such
criticisms of RFRA, but just suggesting possible avenues for
exploration. I just think that if we explore them, we really won't find
much worth worrying about.
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