(Fwd) From Michael Stokes Paulsen, Flores prediction

[Abner Greene]

               -Reply

     Well, I am compelled to remind y'all that aeons ago (or is it eons?) I
said on this very list! that the Court would invalidate RFRA with 2 votes to
NG it on establishment grounds and 3 votes to NG it on section 5 grounds
(with the unfortunate coincidence of a 7-2 vote saying it's OK on
establishment grounds and a 6-3 vote saying it's OK on section 5
grounds).
     A question raised by the msg appended below:  Please remind me
*precisely* how the argument goes that RFRA would be constitutional as
to the federal government if one adopts the Harlan view of section 5
power.  Can't one argue the following:  RFRA was enacted pursuant to
14th Amend., section 5 (right? are there serious commerce clause
arguments here?).  If congressional power under section 5 is limited (a la
Harlan) to enforcing rights the Court's already declared (or at least to not
enforcing rights the Court has said *don't* exist), then Congress simply
lacks section 5 power to read the free exercise clause in a more
expansive way than the Court did in Smith.  It lacks this power period,
regarding either state or federal action.  Although section 1 of the 14th
Amendment speaks only to what "States" can't do, through "reverse
incorporation" we read the EPC (et al.) to apply to the federal government
as well.  In a parallel fashion, "reverse incorporation" limits section 5
power as to the federal govt. just as it does to States.
     If I've missed something here, please post a message explaining how.
 Thanks.
     --  Abner Greene, Fordham Univ. School of Law

>>> Lupu, Ira (Chip) <iclupu at MAIN.NLC.GWU.EDU> 01/14/97 04:41pm
>>>
Paulsen just wants to lose another wager to me.

5-4 to invalidate RFRA.
The 5 votes are as follows:
Stevens on Establishment grounds (RFRA favors religion over
nonreligion)
O'Connor and Rehnquist on federalism grounds (the 14th A, sec.5
argument fails; RFRA can't be applied to the states)
Scalia and Kennedy on separation of powers grounds (Congress can't
compel the Court to reinstate discarded free exercise principles) as well
as federalism grounds

If I'm right about this, one consequence is that RFRA will be constitutional
as applied to the federal government (where O'Connor or
Rehnquist will join the other four to uphold its constitutionality).


Ira C. ("Chip") Lupu
The George Washington University School of Law
2000 H St., NW
Washington D.C 20052

(202) 994-7053

ICLUPU at main.nlc.gwu.edu