RFRA & Federal Statutes
VOLOKH at law.ucla.edu
Tue Nov 15 13:12:19 PST 2005
[My responses labeled with "***" below.]
Bobby Lipkin writes:
Just what is a "statutory constraint" in this context? Is the
argument that there is no difference in exercising a constitutional
power and constraining it? For example, suppose Congress passed a law
pursuant to the Commerce Clause prohibiting sixteen year olds from
driving on interstate highways except for the purpose of going to and
from work. Is this exception a "statutory constraint"?
*** Sure, why not?
And if yes, is it precisely the same sort of constraint as RFRA?
*** Not precisely -- obviously RFRA leaves courts with more
discretion than does this law. But as to the enumerated powers
question, the two are indeed similar.
If so, then the above highway statute can include an exception
pertaining to sixteen year olds driving to and from work. Is that what
"statutory constraint" means? If that's right, then must the statutory
constraint be stated in each particular law passed pursuant to an
enumerated power or can Congress instead pass an independent law stating
a host of statutory constraints on all other congressional and
*** Why not the latter? What's there in the enumerated powers
doctrine that keeps Congress from enacting one law that imposes lots of
constraints on other federal laws?
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