The federalism implications of Flores.

• Author: Gardbaum, Stephen
• Position: Symposium: Reflections on City of Boerne v. Flores

The Supreme Court's decision in City of Boerne v. Flores(1) that the Religious Freedom Restoration Act of 1993 (RFRA or the "Act")(2) is unconstitutional was not in itself particularly surprising.(3) Moreover, the Court's finding that Congress had exceeded its enforcement power under Section 5 of the Fourteenth Amendment ("Section 5")(4) is not unprecedented in modern times.(5) Nonetheless, in reaching this conclusion, the Court placed new limits on the scope of Congress's enforcement power and thereby reset the federal-state balance in the symbolically charged context of the Civil War Amendments. In so doing, the Court confirmed in unambiguous terms just how serious it is about protecting federalism.

The Court's analysis, however, is flawed in a way that renders the decision's importance and implications for federalism uncertain. The Court held that RFRA violated both separation-of-powers and federalism principles,(6) but it failed to keep the two distinct,(7) unwittingly skipping from one to the other and often conflating them. More critically, these two grounds of the decision are in serious tension with each other and cannot both stand: The Court's separation-of-powers argument prohibits what its federalism argument permits. This seemingly fatal problem is, however, entirely of the Court's own making. Even though, if anything, its separation-of-powers argument was the more central of the two grounds in driving the Court's analysis, it was, in reality, a red herring in the case. Accordingly, the Court's unnecessary and irrelevant defense of judicial supremacy--and its implications for the states--may justifiably be severed from the opinion and ignored.

Once this threshold problem with the Court's analysis has been identified and dissolved in Part I of this Essay, the task of assessing the significance of the case from the perspective of federalism can begin. From this vantage point, Flores does not simply affirm Employment Division v. Smith(8) but adds to it, and the aim of Parts II and III is to explore what may prove to be Flores's two major implications. First, if not explicitly, then at least by implication, the Court placed new limits on Congress's Section 5 power. In so doing, of course, it provided a revised answer to the important question of whether, and to what extent, this congressional power potentially subjects the states to additional limitations on their sovereignty beyond the constitutional prohibitions contained in Section 1.(9) Second, both the opinion in Flores and the one announced two days later in Printz v. United States,(10) in which the Court held that Congress cannot require state officials to administer federal statutes, contain grounds for thinking that the Court will perhaps interpret the scope of Congress's powers under the Necessary and Proper Clause(11) more restrictively than previously.(12) Since, from a federalism perspective, this clause undoubtedly represents one of the most important of Congress's enumerated powers, such a change could have significant implications for the states.

1. SEPARATION OF POWERS AND FEDERALISM

   Justice Kennedy's opinion for the Court in Flores concluded that "[b]road as the power of Congress is under the Enforcement Clause of the Fourteenth Amendment, RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance."(13) Although the precise chain of reasoning linking the main body of the Court's analysis to this conclusion at the very end of its opinion is left largely unstated, it is not difficult to fill in the gaps.

   According to the Court, RFRA violated separation-of-powers principles because it could not be understood as an attempt by Congress to enforce the Free Exercise Clause,(14) which is all that Section 5 authorizes, but only as an attempt to change the clause's meaning. By seeking through RFRA to overrule Smith and restore the prior interpretation of the clause,(15) Congress overstepped the constitutionally mandated boundary between legislative and judicial functions and challenged the Court's role as final interpreter of the Constitution's meaning: "The power to interpret the Constitution in a case or controversy remains in the Judiciary."(16) RFRA also violated federalism principles because in going beyond "enforcement" of the Fourteenth Amendment, it exceeded Congress's enumerated power under Section 5 and therefore impermissibly intruded "into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens."(17)

   The problem with this analysis is as follows: If RFRA violates separation-of-powers principles because it amounts to a "substantive change in constitutional protections"(18) or "[l]egislation which alters the meaning of the Free Exercise Clause"(19) and therefore impermissibly intrudes on the Court's interpretive authority, then presumably the states cannot enact RFRA either because if they did so, it would surely amount to the same thing. No more than Congress can the states define their own powers by altering the meaning of the Fourteenth Amendment. And yet, if RFRA violates federalism principles because it usurps the general authority to regulate life, liberty, and property that the Constitution reserves to the states--and that Section I of the Fourteenth Amendment limits but does not oust--then presumably the states may exercise this authority to enact their own versions of RFRA (or any version between the Smith and Sherbert tests).(20) In other words, if the problem with RFRA is that only the states have the general authority to enact "substantive" measures protecting free exercise beyond what is constitutionally necessary under Smith, then such measures cannot violate the principle of judicial supremacy that applies equally to the states. Accordingly, and contrary to the Court's argument in Flores, RFRA may violate either separation of powers--in which case neither Congress nor the states could enact it--or federalism--in which case the states may enact it--but it cannot violate both.

   This conundrum resulting from the Court's analysis is, however, entirely of its own making. The solution is quite simply that far from violating the separation-of-powers principle that the Court identifies and relies upon, RFRA does not even raise or implicate it. Given RFRA's history both inside and outside Congress and the sharp criticism of Smith in the legislative text,(21) it is perhaps understandable that the Court was provoked into looking at the case through the lens of judicial supremacy and felt compelled to put down what it saw as a congressional rebellion. Nonetheless, RFRA did not change the meaning of the Free Exercise Clause and its constitutionality depended only on the scope of Congress's legislative power under Section 5. Congressional desire to "overrule" Smith notwithstanding, the technical question at issue was the validity of Congress's statutory scheme supplementing the constitutional right of free exercise as interpreted in Smith. If valid, then this scheme would displace otherwise permissible state authority to regulate for the general health and welfare of their citizens in a manner that affords them only the lesser constitutionally guaranteed right of free exercise.

   Let me expand a little on this important point. It is undoubtedly the case that RFRA was informed and motivated by a congressional interpretation of the Free Exercise Clause differing from that of the Court. Nonetheless, in enacting RFRA, Congress was not declaring that an individual has a constitutional right of free exercise greater than that announced in Smith, but a federal legislative right--and one that on its face is not inconsistent with, or prohibited by, Smith. Whether one characterizes this legislative act as an attempt to supplement the constitutional right set out in Smith or to enforce Congress's different interpretation of it, in itself RFRA does not alter or establish the meaning of the Free Exercise Clause and so does not intrude on the judicial function, although in expanding federal restrictions on the states it does raise obvious federalism issues. Whether Congress can enact such a legislative scheme depends on the scope of its enumerated powers and not on the division between judicial and legislative functions.(22) If it can, then RFRA will trump any conflicting state laws and may, depending on express or implied congressional intent, preempt all state authority in the field, including state authority to supplement the federal scheme itself. If it cannot, then Congress has exceeded its enumerated powers and thereby also impermissibly intruded on the constitutionally reserved authority of the states to regulate for the health and welfare of their citizens.

   Accordingly, the Court's argument that RFRA exceeded Congress's Section 5 power because it "attempt[s] a substantive change in constitutional protections"(23) rather than enforcement of the existing ones is misdirected; it responds to a red herring. If RFRA exceeded Congress's Section 5 power, it can only have been because in attempting to enact an additional legislative right, Congress went beyond "enforcement" of the constitutional one. Absent some other enumerated power that does provide congressional authorization,(24) the Constitution leaves it up to the states whether to supplement the minimum federal constitutional guarantee of free exercise in this way.

   Not only did the Court employ its separation-of-powers argument to mischaracterize what RFRA did (alter the meaning of the Constitution), but it also derived from this argument a patently invalid one against a "substantive" interpretation of the Section 5 power. In effect, this latter argument--which conflates two different types or sources of law (constitutional and legislative)--is that since separation-of-powers principles prevent Congress from changing the meaning of the Constitution, they prevent it from making...