RFRA & Federal Statutes

[Richard Dougherty]

Perhaps Eugene and Marci are both right -- Congress has routinely engaged in "delegation" (though clearly this is of a different kind), but that it ought not to?  Or, is it that when it does it in a routine manner it is legitimate, but on a large scale it is not?  (This seems to be Marci's argument; please correct me if I'm wrong on that.)  Or, it's OK to delegate to some administrative bodies, but not to courts?
Richard Dougherty

---------- Original Message ----------------------------------
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
Date:  Fri, 9 Dec 2005 09:22:26 -0800

>    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.
>Wilkinson.
>
>    Eugene
>
>Marci Hamilton writes:
>-----Original Message-----
>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.  
>
>Marci
>
>
>
>
>
>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
>enumerated powers?
>
>    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.
>
>    Eugene
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