Does the Religious Freedom Restoration Act violate the separation of powers?, Eugene Volokh, Washington Post

I’ve recently heard some people argue that the Religious Freedom Restoration Act of 1993 — which the Supreme Court applied in Hobby Lobby — violates the separation of powers. Not long after RFRA was enacted, several scholars took the same view. But I think this is mistaken.

1. Congress disagreeing with the Supreme Court: One version of the argument is that (to oversimplify a bit) the Supreme Court is the ultimate interpreter of the Constitution, and Congress is not allowed to disagree with it. And indeed, in City of Boerne v. Flores (1997), the court rejected that RFRA applied to state and local governments. The federal government defended the law on the grounds that Congress could, under section 5 of the 14th Amendment, define the constitutional rights protected by the 14th Amendment against states and localities more broadly than the court has. The court — in an opinion agreed to in relevant part both by the five conservative justices and Justices John Paul Stevens and Ruth Bader Ginsburg — argued that:

Congress’ power under § 5 … extends only to “enforc[ing]” the provisions of the Fourteenth Amendment. The Court has described this power as “remedial.” The design of the Amendment and the text of § 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment’s restrictions on the States. Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause. Congress does not enforce a constitutional right by changing what the right is. It has been given the power “to enforce,” not the power to determine what constitutes a constitutional violation. Were it not so, what Congress would be enforcing would no longer be, in any meaningful sense, the “provisions of [the Fourteenth Amendment].”

But all this came up only because Congress was trying to control state and local government action in a vast range of fields, something that it has no express power to do except through Section 5 of the 14th Amendment; that section, the court held, doesn’t give Congress broad power to go beyond the protections that the court has recognized.

As to the federal government, RFRA is justified by very different powers — essentially, by the powers under which the original federal action (from which an exception is sought) is justified. Drug laws have been held to be justified under the Commerce Clause and the Necessary and Proper Clause; RFRA exemptions from drug laws, as in Gonzales v. O Centro (2006), would be limits on the exercise of those powers, justified under those powers (i.e., we don’t want to regulate commerce in drugs when that unnecessarily interferes with religious practice). The Affordable Care Act has been held to be justified under the power to regulate commerce and the power to tax and provide for the general welfare; RFRA exemptions from the regulations implemented under that act would be limits on the exercise of those powers, justified under those powers (i.e., we don’t want to regulate commerce in labor and compensation for the labor when that unnecessarily interferes with religious practice).

And the fact that Congress adopted by statute something that the court refused to adopt as a matter of constitutional command doesn’t matter. As the Eighth Circuit held in In re Young (8th Cir. 1998) (one of many circuit decisions that rejected separation-of-powers arguments against RFRA),

While Congress cannot, through ordinary legislation, amend the Court’s authoritative interpretation of the Constitution, “congressional disapproval of a Supreme Court decision does not impair the power of Congress to legislate a different result, as long as Congress had that power in the first place.” United States v. Marengo County Comm’n, 731 F.2d 1546, 1562 (11th Cir.1984); see also Flores, 117 S.Ct. at 2171 (“When Congress acts within its sphere of power and responsibilities, it has not just the right but the duty to make its own informed judgment on the meaning and force of the Constitution. This has been clear from the early days of the Republic.”). Congress has often provided statutory protection of individual liberties that exceed the Supreme Court’s interpretation of constitutional protection. See, e.g., Privacy Protection Act of 1980, 42 U.S.C. §§ 2000aa to 2000aa–12 (reacting to Zurcher v. Stanford Daily, 436 U.S. 547 (1978), and providing journalists with greater protection against searches and seizures); National Defense Authorization Act for Fiscal Years 1988 and 1989, § 508, 10 U.S.C. § 774 (reacting to Goldman v. Weinberger, 475 U.S. 503 (1986), and providing that members of military were entitled to wear religious headgear); cf Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k) (reacting to Geduldig v. Aiello, 417 U.S. 484 (1974), and equating employment discrimination based on pregnancy with employment discrimination based on gender).

So after RFRA, the constitutional rule under the Free Exercise Clause remains as the court set it forth in Employment Division v. Smith (1990): religious objectors generally have no Free Exercise Clause right to exemptions from generally applicable laws. But the statutory rule under RFRA is as Congress set it forth: religious objectors do have such a statutory right — just as people may lack constitutional protection from searches and seizures of newsrooms, from military rules restricting headgear, and from governmental discrimination based on pregnancy, but have such statutory protection.

2. Congress mandating a rule that the court has concluded is unadministrable: What about the fact that Employment Division v. Smith (1990) condemned the strict scrutiny test in religious exemption cases? Here is the language from Smith that is sometimes cited in connection with this (emphasis added):

The “compelling government interest” requirement seems benign, because it is familiar from other fields. But using it as the standard that must be met before the government may accord different treatment on the basis of race, or before the government may regulate the content of speech, is not remotely comparable to using it for the purpose asserted here. What it produces in those other fields — equality of treatment and an unrestricted flow of contending speech — are constitutional norms; what it would produce here — a private right to ignore generally applicable laws — is a constitutional anomaly….

If the “compelling interest” test is to be applied …, it must be applied across the board, to all actions thought to be religiously commanded. Moreover, if “compelling interest” really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them. Precisely because “we are a cosmopolitan nation made up of people of almost every conceivable religious preference,” and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind — ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws, to social welfare legislation such as minimum wage laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races. The First Amendment’s protection of religious liberty does not require this.

[Footnote: Justice O’Connor contends that the “parade of horribles” in the text only “demonstrates … that courts have been quite capable of … strik[ing] sensible balances between religious liberty and competing state interests.” But the cases we cite have struck “sensible balances” only because they have all applied the general laws, despite the claims for religious exemption. In any event, Justice O’Connor mistakes the purpose of our parade: it is not to suggest that courts would necessarily permit harmful exemptions from these laws (though they might), but to suggest that courts would constantly be in the business of determining whether the “severe impact” of various laws on religious practice … or the “constitutiona[l] significan[ce]” of the “burden on the specific plaintiffs” … suffices to permit us to confer an exemption. It is a parade of horribles because it is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice.]

It seems to me, though, that this rationale is limited to courts actually deciding whether exemptions are actually constitutionally mandated, in a way that federal and state legislatures cannot modify, short of a constitutional amendment. After all, federal courts routinely balance incommensurables of this sort in subconstitutional contexts. Federal admiralty law, for instance, remains common law (largely the common law of torts); federal courts routinely define the rules of that common law by making decisions about what makes sense, and what exceptions should be carved out from general rules. Although federal crimes are defined by statute, federal criminal law defenses are not; federal courts remain empowered to recognize new defenses, and develop existing ones.

Historically, the federal law of civil procedure and evidence was defined through the common-law process by federal courts, which routinely balanced various considerations in crafting and refining the rules, and deciding on the exceptions to the rules. Even now, after Congress chose to enact the Federal Rules of Evidence by statute, it expressly provided that the testimonial privileges — exceptions from the generally applicable duty to testify — “be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” Congress has authorized courts to continue defining the fair use defense (an exception from the generally applicable rules of copyright law), and indeed the fair use defense was originally created by federal courts even without such authorization. And of course for over a century the federal courts have read the broad language of the Sherman Act as an implicit authorization to develop, in common-law fashion, a law of antitrust.

But of course, since all these balancing decisions are not constitutional decisions, Congress can trump them by statute, if it wishes. Indeed, that is what makes such judicial policy judgments in all these areas acceptable, I think: Judges, either as a matter of common law authority (as in the admiralty context, and likely in the criminal defense context) or as a matter of specific statutory authorization (as in the Federal Rules of Evidence) are making the initial policy judgments, but Congress retains the power — if it has the votes to exercise it — to replace these policy judgments with contrary ones.

Thus, federal courts carving out religious exemptions from generally applicable laws as a matter of constitutional command is indeed unusual. But federal courts carving out exemptions from generally applicable laws (and even defining the laws in the first place) in a way that is eminently familiar, and acceptable even when the underlying standards are very mushy (whether the test is “least restrictive means of serving a compelling government interest” or “the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience” or no statutorily defined test at all). What Smith condemned was the use of the “strict scrutiny” test for constitutionally mandated exemptions, not its use as a statutory authorization to courts to use their judgment (whether about policy, such as what interests are compelling, or about facts, such as whether a particular alternative means is going to be sufficiently effective) to carve out religious exemptions.

3. Delegation to the judiciary: This also helps respond, I think, to the argument that, in RFRA, Congress improperly delegated its legislative authority to federal courts. Delegation objections are claims that power is being given to a branch that is not constitutionally empowered to exercise it. Delegation of lawmaking authority to the executive branch, which has no broad historical lawmaking power, may indeed be unconstitutional under various circumstances. But judges in the American system have long had lawmaking power, in their ability to develop the common law. And while federal judges have been more limited, they too have had broad common-law-making authority — as discussed above — especially when the issue is recognizing exceptions from generally applicable laws (such as criminal laws, the duty to testify, the copyright law, and more). So Congress is delegating to courts the sort of exception-creating decisions that courts have long been seen as allowed to make, if they make them just as a common-law or statutory matter, trumpable by Congress if Congress disagrees with the decisions, rather than as a constitutional matter.

Note that all these are separate arguments from the Establishment Clause argument that Sasha blogged about, which is that RFRA unconstitutionally favors religious objectors over secular conscientious ones. For a bit more on that, see here, though note also that a similar argument as to RFRA’s sister statute, RLUIPA, was rejected by a unanimous court in Cutter v. Wilkinson (2005).