RFRA & Federal Statutes

RJLipkin at aol.com RJLipkin at aol.com
Tue Nov 15 13:59:42 PST 2005

What's troubling me  is nicely stated in the Eugene's final question: "What's 
there in the  enumerated powers doctrine that keeps Congress from enacting 
one law that  imposes lots of constraints on other federal laws?" And frankly I 
don't  know.  But I'm troubled nonetheless.
        I suppose I could say that  while individual enumerated powers 
authorize statutory  constraints when those constraints are specifically included in 
a law passed  pursuant to a given enumerated power, it doesn't follow that 
there's any  constitutional warrant for an independent omnibus statute of 
constraints  without an enumerated power for that specific purpose. And I suppose 
part  of the concern is that there might be slippery slope problems about taking 
it  for granted that such independent statutes are themselves authorized.   
What further statutes could be passed unjustifiably in this same manner?   And 
will havoc conceivably result from legitimating this process? Is  conflating 
both types of statutes consistent with a serious doctrine of  enumerated powers 
or one, such as ours, that many take merely with a wink  and a nod? But I'm 
not sure I want to make this argument. It might be an  unhelpful example of 
splitting hairs. And so, I need to think  further about Eugene's question 
concerning what's included in the idea  of "enumerated powers."
Robert Justin  Lipkin
Professor of Law
Widener University School of  Law
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