RFRA & Federal Statutes

[Marty Lederman]

Well, the power to create the Executive branch is either an "inherent" power, or implicit in the enumerated powers, or authorized by the Necessary & Proper Clause, etc. (take your pick, and see the various arguments in McCulloch).  And there are virtually no limits (short of express constitutional prohibitions) on the sort of Executive branch that Congress can create for the purpose of helping the President take care that the laws are faithfully executed.  Congress could also chose not to create an Executive branch at all, subject possibly to the requirement that it provide the President with a few agents -- a Secretary, etc. -- so that he can perform the handful of functions specifically assigned to him by the Constitution (e.g., appointments, pardons, recommendations, conveying state-of-the-union information).  Surely, then, Congress can choose something in between the "minimalist" and "maximalist" Executive branches.  In particular, it can create an Executive branch that is more limited in authority than the maximalist, most extensive Executive branch that the Constitution would permit -- and such limits are established not only by Congress's failure to create certain Executive offices, or employment positions, or functions, but also by express statutory limits imposed on the Executive agencies, such as those found all over Title 5, and in RFRA.

P.S.  Pace the "first principles" announced in Lopez, although the federal government may be a "limited" one, it is not strictly limited to "enumerated powers."  It also has many structural, implied and inherent powers, as cases such as McCulloch and the Chinese Exclusion Case -- not to mention, e.g., the creation of admiralty law, and paper money -- should have long ago settled.  Of course, one might say that all of those structural, implied and inherent powers are "authorized" by the Necessary & Proper Clause, which is "enumerated."  I don't think such a move to the N&P Clause is necessary, but to the extent one believes a textual "hook" is needed . . . .   
  ----- Original Message ----- 
  From: RJLipkin at aol.com 
  To: marty.lederman at comcast.net ; CONLAWPROF at lists.ucla.edu 
  Sent: Monday, November 14, 2005 9:22 AM
  Subject: Re: RFRA & Federal Statutes


          Marty, I do not mean to be persnickety, but wherein lies the constitutional authority of Title 5? To put it differently, where does Congress derive its authority to pass laws which impose limits, standards, conditions, restrictions, etc., on the workings of the federal government? This is not an argumentative question. I'm simply wondering what constitutional provision(s) give Congress this authority given the notion that ours is a limited government of enumerated powers. Thanks.

  Bobby

  Robert Justin Lipkin
  Professor of Law
  Widener University School of Law
  Delaware
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