City of Boerne v. Flores: a landmark for structural analysis.

• Author: Hamilton, Marci A.
• Position: Symposium: Reflections on City of Boerne v. Flores

1. INTRODUCTION

   As the representative of the City of Boerne, Texas in City of Boerne v. Flores,(1) the Supreme Court case invalidating the Religious Freedom Restoration Act of 1993 (RFRA or the "Act"),(2) I had the good fortune to discuss the Act with a wide range of individuals in our society, including: members of the clergy, the press, state and local politicians, a wide variety of legal and theological scholars, lobbyists for a significant cross-section of organizations, members of home-schooling, historical preservation, and Indian rights advocacy groups, and citizens acting individually and collectively in neighborhood associations. I also had the good fortune to argue the case before the U.S. Supreme Court and therefore to converse with the Justices about the Act--albeit in an undeniably brief period of time.

   No matter how the particular individual felt about RFRA, and no matter the forum, one aspect of RFRA's enactment intrigued the speaker: RFRA was passed by an overwhelming majority in Congress(3) and was supported by an unprecedented and massive coalition of organized religions.(4) I was frequently asked, "Don't the numbers bother you?" What they meant was, "Don't these numbers make any constitutional difference, and shouldn't they?" To varying degrees of success, I explained to my many interlocutors that the numbers were not relevant to the constitutional calculus and certainly not a good reason to suspend serious constitutional inquiry. The Constitution demands a representative system in which representatives are supposed to be independent of interest groups, no matter their stripe.(5) Political pressure, even when exercised by organized religion, is no palliative for Congress; it is still beholden to the people to judge what is in the country's best interest, and Congress is obligated to enact only constitutional measures.(6) I usually completed my explanation with a reference to lemmings, saying the numbers in Congress are surely more a testament to the power of Washington lobbyists for religion than to the conclusion that Congress has acted within its constitutionally circumscribed role. In fact, Congress transgressed constitutional boundaries because it failed to ask the most important constitutional questions.

   Despite my certainty about the constitutional conclusions, which was vindicated by the Court's opinion in Flores, I must admit that the day I received twenty amicus briefs written in favor of my client's opponent Archbishop Flores,(7) many of which were penned by notable representatives of time-honored religions,(8) and the Catholic Church's brief by the eminent law professor and religious scholar Douglas Laycock, it occurred to me that perhaps I should start caring, or at least craft a more detailed apologetic of my view that the number of supporters in Congress or in the world of religion is not constitutionally significant. Hence, this Essay.

   Principles of the Constitution's structure--the separation of congressional from judicial powers and federal from state lawmaking authority--felled RFRA.(9) Congress and its advisors missed these vital structural issues when they considered RFRA.(10) In fact, a reading of the Congressional Research Service's (CRS) reports to Congress or the majority of the testimony before Congress would not have disclosed that these fundamental constitutional issues were relevant.(11)

   The Court's decision invalidating the Act is a sterling example of the sturdiness of the Constitution's structure and, indeed, of the Court in the face of immense and impressive political pressure.(12) Without question, Flores is a landmark decision and grandly illustrates that the constitutional structure of representative democracy is not premised on the inevitability of interest group rule but rather exerts an independent force against interest group domination.(13) The Act's invalidation is the best historical example we have to refute the notion that interest group politics determine the outcome of policy debates in this society. Powerful and respectable lobbyists may have pushed for RFRA, but they did not prevail when the resulting law was an insult to the Constitution's design.(14) Because of the entrenched structure that the Constitution imposes on our republic, the Court was able to issue an opinion devoid of vitriol, even matter-of-fact in its tone, and to defeat with equanimity one of the most imposing organizations of religion in history.(15) That is good news for the Constitution, the Court, and the people.

   Once the Constitution's Framers committed themselves to expanding the power of the national government in the wake of the failure of the Articles of Confederation, they focused on the question of how to harness the federal government's newly created power to best serve the interests of the people and the states.(16) Providing meaningful power to the federal government occasioned the need for limits on that power, and the Framers concocted a wide variety of means to exercise, but also to rein in that power.(17)

   The Supreme Court's decision in Flores reaffirms the Constitutional Convention's simultaneous faith in and distrust of national power. As such, it offers at least a partial blueprint for congressional accountability and a testimony to the strength of structural analysis at the end of the twentieth century.

   The modern Supreme Court has made a public and self-conscious effort to distance itself from policy disputes both in national and in state issues.(18) Social policy is the bailiwick of legislatures and executives, not judges.(19) As the Court has distanced itself from judging legislative conclusions about policy disputes, it has become passionate about delineating structural limitations on the operation of Congress.(20)

   The federal courts' role policing the boundaries of legislative and executive power is essential to the scheme contrived by the Framers, which rests on the twin presuppositions that those holding power will abuse it and that the exercise of power can be stemmed by the exertion of countervailing power.(21) The courts' role within this structure is to interpret the lines drawn by the Constitution and to invalidate excessive exercises of power for the purpose of balancing power within the society.(22)

   In Flores, which invalidated RFRA on the ground that "Congress ... exceeded its authority under the Constitution,"(23) the Supreme Court identified crucial means to define and confine the power of Congress. The decision is not, as some would have us believe, an expression of an utterly new constitutional direction,(24) but rather a pointed reminder of the Framers' carefully crafted constitutional structure.

   This Essay is an analytical exegesis of the Court's opinion from the perspective of the Constitution's structure of government, with special emphasis on the principles that encourage legislative responsibility and accountability. The following discussion delineates three characteristics of an accountable and responsible Congress that are central to the Framers' vision and that were reaffirmed in the Flores opinion. First, Congress is given enumerated, limited powers. This simultaneous provision and limitation of power is intended to ensure a separation of powers among the federal branches(25) and a system of dual sovereignty between the states and the federal government.(26) This is the enumerated powers doctrine.(27) Second, Congress must perform those tasks assigned to it reasonably well in order to avoid other constitutional pitfalls. This is the proportionality or means-end fit requirement.(28) Third, Congress cannot unilaterally define its constitutional role. This is the principle of popular sovereignty, wherein government power is derived from the people rather than inherent in any institution.(29)

   I conclude that Flores turns on fundamentally structural issues and that the decision should have come as no surprise. Those for whom it did seem to have been wearing structural blinders.

2. THE FEDERAL GOVERNMENT IS A GOVERNMENT OF ENUMERATED AND LIMITED POWERS

   From many perspectives, the legislative process employed in RFRA is a prescription for constitutional disaster. Congress rubber-stamped the views of a powerful interest group, rather than engage its independent judgment;(30) it addressed an asserted social problem without ascertaining whether the problem in fact existed;(31) it imposed a legalistic formula to be applied to the imagined problem without serious inquiry into the impact of such a formula;(32) it attempted to redress the imagined problem in every forum and arena imaginable;(33) and it failed to inquire adequately into the constitutionality of its own actions.(34) Flores teaches that Congress is obligated to examine the constitutionality of its enactments, and when it does not, "the presumption of validity its enactments now enjoy," is brought into question.(35)

   One message of the Flores decision is that Congress should treat structural constitutional issues as threshold issues. Moreover, it ought to take the utmost care when it considers the constitutionality of its actions when it is tempted, as it was with RFRA, to abdicate its constitutional obligation to exercise its independent decision-making authority and to simply follow the lead of a powerful interest group. The near unanimous vote in Congress, combined with the strength of the Coalition for the Free Exercise of Religion, which drafted and lobbied for RFRA,(36) are no excuse to attenuate constitutional examination, but to the contrary should have sent constitutional warning bells pealing through Congress. Especially when a bill touches upon central First Amendment values and when the people cannot grasp its content because it is written in legalese, members of Congress are obligated to investigate with care their motivations in the context of independent consideration of the Constitution's requirement and the public's interest.(37)

   The advice...