RFRA & Federal Statutes

[Volokh, Eugene]

    Marty's position seems quite correct, even under a strict
enumerated-powers-only view.  Laws prescribing the organization and
behavior of the Government of the United States and its Departments and
Officers, are, it seems to me, "necessary and proper for carrying into
Execution ... all ... Powers vested by theis Constitution in the
Government of the United States, or in any Department or Officer
thereof."  Likewise, laws creating religious exemptions from federal
laws are authorized by whatever power authorizes the federal law in the
first place.

    Eugene

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Marty Lederman
Sent: Monday, November 14, 2005 6:46 AM
To: RJLipkin at aol.com; CONLAWPROF at lists.ucla.edu
Subject: Re: RFRA & Federal Statutes


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