RFRA & Federal Statutes

[Douglas Laycock]

	The argument that Congress can enact religious exemptions
piecemeal, amending every statute in the US Code one by one, but cannot
do it wholesale with a globally applicable statute, seems to assume an
extraconstitutional constraint on how Congress conducts its own business
-- a much more plausible candidate for a separation of powers violation
than anything in RFRA.  I think RFRA would easily satisfy the "single
subject" clauses founded in many state constitutions; the subject is
conflict between federal law and religious practice.  But however that
may be, the federal constitution has no such clause -- nothing to
suggest that the scope of a bill is not a matter of internal
Congressional practice, not subject to judicial review.

	RFRA is certainly not the only statute that appies globally
across the US Code.  The Administrative Procedure Act applies to the
enforcement of any law in any agency, unless carved out by more specific
provisions.  The Anti-Injunction Act applies to any effort to enforce
any federal law, unless the case fits within one of the exceptions.
Section 1983 applies to any conduct under color of any state law that
violates any federal law, unless more specific provisions implicitly or
explicitly create an exemption.

	One might say that these examples are all procedural or remedial
provisions, and that RFRA is substantive.  I agree with the description,
with the clarification that remedies are also substantive (and properly
so held for Erie purposes), but I don't see any significance to the
description.  These statutes are like RFRA in that the deal with a
specific problem that can arise in any of a great variety of contexts.
So Congress passed one bill to address the problem, and made it
applicable to any context in which the problem arises.  A perfectly
sensible way to proceed.

	Especially sensible in the RFRA context, where Congress
recognized that it could not deal with all the applications
individually.  It couldn't know about all the potential cases, it
couldn't gather all the information about all those cases; and it
couldn't avoid political pressure and favoritism.


Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
   512-232-1341 (phone)
   512-471-6988 (fax)

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, November 15, 2005 3:12 PM
To: conlawprof at lists.ucla.edu
Subject: RE: RFRA & Federal Statutes

	[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
governmental laws?

	***  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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