RFRA & Federal Statutes

Volokh, Eugene VOLOKH at law.ucla.edu
Tue Nov 15 15:31:47 PST 2005

I wrote:

An omnibus statute of constraints does have a constitutional
warrant -- it just relies on many enumerated powers, not one.   

Bobby Lipkin responded: 

        However, the above remark is circular because it assumes the
very point of contention, namely, does a statute have constitutional
warrant when it is an omnibus bill of statutory constraints without a
specific enumerated power to pass such a statute? Pragmatically, it
might be better not to require such a provision, and instead just rely
on "many enumerated powers, not one."  But that needs to be established.
And while present practice is certainly relevant in answering this
question, in my view, the lion's share of the argument needs to be a
theory, an explication, of the idea of "enumerated powers," "limited
government, and "inherent powers." And that's what I must think about
now. Thanks.

	I'm not sure what it means to say that there's no "specific
enumerated power to pass such a statute."  The Constitution sets out a
certain set of powers that Congress has.  It doesn't require that each
statute be enacted pursuant to only one power; it simply requires that
each statute be within Congress's powers.  Nothing in the concept of
enumerated powers or in the text of the Constitution, as best I can
tell, requires that RFRA be enacted as a bunch of different RFRAs, one
for the Commerce Clause, one for the Spending Clause, one for each of
the War Powers Clauses, and so on.

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