Boerne Fallout

[Rick Hills]

Professor Laycock writes:

        "The realist answer is that the Court really disliked RFRA, and that
>it does not similarly dislike all these other laws, which seem more
>familiar."

        I think that this statement is unfair to the Court.  Another realist
answer is that the Court could think of no way to uphold RFRA and yet place
a meaningful limit on Congress' section 5 powers.

        Indeed, whatever one thinks of Boerne, I believe that the following
statement is accurate: If the Court had upheld RFRA, then the Court would
essentially withdraw from the business of policing Congress' sec. 5 powers
and leave such policing entirely up to the (federal) political process.  (If
you disagree with this statement, then I'd like an example of a law that
would exceed Congress' sec. 5 powers under any theory that would sustain
RFRA as "appropriate" enforcement of sec. 5).

        Such an embrace of Choperism is defensible -- but it would require
overruling both Lopez and New York to be consistent.  I do not think that
one needs to have a special hostility to RFRA to reject such judicial
abdication.

        Rick Hills
        University of Michigan Law School