RFRA & Federal Statutes

[Earl Maltz]

Is this delegation any broader or more vague than the command in Title VII 
of the Civil Rights Act to inquire whether employment practices are 
"job-related and consistent with business necessity"?

At 11:39 AM 12/9/2005 -0600, Richard Dougherty wrote:
>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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