SG Application for Stay of "Hoasca Tea" Injunction

[Michael MASINTER]

I appreciate Marty's effort to limit the scope of the government's
argument, and I agree that the respondents have a difficult task, but I
remain skeptical.  If the government has a compelling interest in the
uniform enforcement of a tax law riddled with exemptions, then why doesn't
it have the same presumptive compelling interest in the enforcement of
each of its many other laws?  What principle distinguishes tax laws and
drug laws from any other legislation enacted by a government of limited
powers?  Every statute reflects a considered legislative judgment, and
every statute rest on an affirmative grant of constitutional power to
legislate (and the vast majority rest on the same grant of power that
authorizes drug laws).  Unless a coherent principle can do the heavy
lifting required to cabin the argument, then what is left of RFRA?

Michael R. Masinter			Visiting Professor of Law
On Leave From				University of Miami Law School
Nova Southeastern University		(305) 284-3870 (voice)
Shepard Broad Law Center		(305) 284-6619 (fax)
masinter at nova.edu			Chair, ACLU of Florida Legal Panel

On Tue, 7 Dec 2004, Marty Lederman wrote:

> If I'm not mistaken, the government is not arguing in that paragraph
> that uniform application of any federal law is a compelling interest
> (a position that would, indeed, eviscerate RFRA), but instead that
> uniform enforcement of the Controlled Substances Act -- like uniform
> enforcement of the tax code in Lee, which is cited -- is a compelling
> interest.  (That is to say, the phrase "the law" in the quoted
> sentence probably should have been "that law.")  I do not mean to be
> suggesting that the government is correct here, especially not in
> light of the peyote exemption, but I think that the argument is
> somewhat narrower, and less implausible, than it appears at first.
> 
> The difficult doctrinal task for respondents is to explain why, if
> "uniform" enforcement of the tax laws is a "compelling" interest, per
> Lee and Hernandez (and notwithstanding the many tax-code exemptions),
> the same is not true of the nation's drug laws.
> 
> 
> ----- Original Message ----- 
> From: "Michael MASINTER" <masinter at nova.edu>
> To: "Law & Religion issues for Law Academics" <religionlaw at lists.ucla.edu>
> Sent: Tuesday, December 07, 2004 9:40 PM
> Subject: Re: SG Application for Stay of "Hoasca Tea" Injunction
> 
> 
> > In its reply, the government argues at page 10:
> > 
> > That is, the Controlled Substances Act is exactly the type of law
> > that Congress envisioned would satisfy RFRAs compelling interest
> > test and it would do so categorically because there is a compelling
> > interest is [sic] in the uniform enforcement of the law.  
> > 
> > If "the uniform enforcement of the law" is a compelling governmental
> > interest, then why was RFRA worth the bother?
> > 
> > Michael R. Masinter Visiting Professor of Law
> > On Leave From University of Miami Law School
> > Nova Southeastern University (305) 284-3870 (voice)
> > Shepard Broad Law Center (305) 284-6619 (fax)
> > masinter at nova.edu Chair, ACLU of Florida Legal Panel
> > 
> > 
> > 
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