RFRA & Federal Statutes
VOLOKH at law.ucla.edu
Fri Dec 9 09:22:26 PST 2005
But what's wrong with Congress making law without actually deciding
the hard questions, and instead delegating the decisions to *the
judiciary*? The judiciary has decided hard questions -- subject to the
possibility of legislative correction -- throughout the centuries of
Anglo-American common-law-making. The judiciary continues to decide
hard questions in statutory cases, where Congress has expressly or
implicitly asked it to do so: Consider Congress's making the Federal
Rules of Evidence without actually deciding the hard questions about
testimonial privileges, and expressly punting them to courts. Consider
Congress's making the Copyright Act without actually deciding the hard
questions about fair use (or about the boundaries of the idea-expression
dichotomy), and expressly punting them to courts. Consider Congress's
making the Sherman Act without actually deciding the hard questions
about which restraints on trade should be barred, and implicitly punting
them to courts.
It's true that RFRA has broader scope than these laws. It also,
however, has narrower application within that scope, since it applies
only to religious objectors. In any event, I don't see a distinction of
*constitutional* significance because Congress delegating to courts
decisions about testimonial privileges, about fair use, about antitrust
law, and about religious objections to laws.
I set aside the Establishment Clause argument, which seems to me
more credible, though much harder to maintain now given Cutter v.
Marci Hamilton writes:
From: Hamilton02 at aol.com [mailto:Hamilton02 at aol.com]
Sent: Friday, December 09, 2005 8:58 AM
To: Volokh, Eugene; conlawprof at lists.ucla.edu
Subject: Re: RFRA & Federal Statutes
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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