Assume, as almost every court of seriousness has assumed, that the Religious Freedom Restoration Act is severable, and therefore that notwithstanding Boerne v. Flores (RFRA can’t constitutionally apply to the states) RFRA forces the federal government to have a compelling state interest and tailored statute to apply a federal statute to substantially burden somebody’s religious exercise. In Scalia’s concurrence today in Lockhart, he endorsed the traditional view that legislative entrenchment is unconstitutional, that is that legislatures cannot burden future legislatures with express-referenceor express-mention requirements (what Larry Alexander and Sai Prakash have called “Mother May I?” rules.) As an example of one of these unconstitutional (Scalia simply says “ineffective”) express-reference requirements, Scalia cites part of RFRA (42 U.S.C. 2000(bb)-3b), which says that federal laws enacted after 11/16/93 are subject to RFRA unless they say otherwise. Now if Scalia is right that this is an unconstitutional legislative entrenchment, what does this imply? That RFRA does not apply to any law enacted or re-enacted after 1993? A separate provision of RFRA (bb-3a) provides that RFRA applies to all legislation whether before or after 11/16/93, but if the express-mention requirement fails because it is entrenchment then shouldn’t bb-3a? If one believes that legislatures lack the power to abridge the power of their predecessors, and that this forbids them to enact express-reference requirements, and if one also believes in plain- or original- meaning statutory interpretation, then why should Congress be allowed to pass a statute purporting to make religious exemptions to future statutes that do not yet exist? Is the idea that future Congresses are presumed to know about RFRA, and assumed to legislate in context, and therefore assumed to have included RFRA exemptions in a statute even when they don’t say so? If that’s so, then why wouldn’t the same argument have applied here in Lockhart?
Posted by Will Baude on December 8, 2005 at 12:13 AM
» Blog Round-Up – Thursday, December 8th from SCOTUSblog Here is Positive Liberty on backlash from Kelo. BizzyBlog comments here. Sentencing Law & Policy has posted this follow-up to previous entries on Alito and the death penalty. Berkeley law professor Goodwin Liu recently wrote an LA Times commentary piec… [Read More]
Tracked on Dec 8, 2005 9:10:05 AM
Comments
Nice post. No one joins Scalia’s opinion in Lockhart, which often seems to happen when he addresses separation-of-powers questions (i.e., Morrison, Mistretta). Will, Marty: Do you think his arguments will have any resonance with other justices?
Posted by: Chris Lund | Dec 9, 2005 10:16:30 AM
Seems to me to be pushing into the superstare sphere, and right now it is still to early to fathom why Scalia would want to plow that kind of furrow. I, too, will study. We know the Judiciary Committee actually has started to speak the neologism superstare in public, and on which topic, principally. Marty Lederman has an interesting albeit recent precedent in mind here.
Posted by: John Lopresti | Dec 8, 2005 9:23:56 PM
I believe the point is simply that the provision cited to in RFRA is not operative to the extent that a court would, independent of the provision, have read the subsequent legislation to impliedly repeal RFRA. As Scalia notes, there’s nothing wrong with the canon against implied repeal. So all he’s saying is that the mere fact of subsequent legislation doesn’t necessarily mean that RFRA has been repealed. But if a court, applying normal rules of statutory construction, would conclude that the subsequent legislation did in fact repeal RFRA, the cited provision in RFRA’s express reference requirement cannot disturb the court’s contrary interpretation of the subsequent legislation.
Posted by: Anonymous | Dec 8, 2005 5:41:40 PM
So I remember being persuaded by Sai Prakash’s and Larry Alexander’s response to Rosenkranz. So it seems to me that Congressionally-enacted rules of statutory construction have definite persuasive effect, if not legally binding effect.
I’m going to have to chew on the war powers resolution for a while. Thanks.
Posted by: Will Baude | Dec 8, 2005 9:13:54 AM
Will: The question is a complicated one. See Nick Rosenkranz’s discussion at 115 Harv. L. Rev. 2085, 2114-2120. Nick asks, quite reasonably, why a clear statement rule in Statute A should be thought to “bind” future Congresses in Statutes B, C, et al. — after all, the later Congresses may simply (with a presidential signature, anyway, or an override) *repeal* or amend Statute A’s clear-statement rule.
At the very least, I think it’s fairly uncontroversial that the clear statement rule of Statute A can be a very strong *tool of statutory construction* when it comes time to interpret Statute B.
The issue you (and Scalia) present famously arises under section 8(a) of the War Powers Resolution, which provides that authorization to initiate hostilities (without which the President is on a 60- or 90-day clock) “shall not be inferred . . . from any provision of law . . . including any provision contained in any appropriations Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and states that it is intended to constitute specific statutory authorization within the meaning of this chapter.” 50 U.S.C. § 1547(a).
In this interesting OLC Opinion about authorization for the Kosovo hostilities — http://www.usdoj.gov/olc/final.htm — OLC wrote this about the WPR “plain statement” requirement:
“In order to avoid this constitutional problem, we do not interpret section 8(a)(1) as binding future Congresses but instead as having the effect of establishing a background principle against which Congress legislates. In our view, section 8(a)(1) continues to have operative legal effect, but only so far as it operates to inform how an executive or judicial branch actor should interpret the intent of subsequent Congresses that enact appropriation statutes that do not specifically reference the WPR. On the question whether an appropriation statute enacted by a subsequent Congress constitutes authorization for continued hostilities, it is the intent of the subsequent Congress, as evidenced by the text and legislative history of the appropriation statute, that controls the analysis. The existence of section 8(a)(1) might affect this analysis. If the appropriation statute is entirely ambiguous as to whether it constitutes authorization for continuing hostilities, for example, it might be proper for a judicial or executive branch actor to conclude that, because the subsequent Congress was aware of the background principle established by section 8(a)(1), its failure to refer specifically back to the WPR evidences an intent not to authorize continuing hostilities. If, however, Congress, in enacting an appropriation statute, demonstrates a clear intent to authorize continuing hostilities, then it would be appropriate to conclude that the appropriation statute does authorize those hostilities, even though the statute does not specifically refer back to the WPR. Under these circumstances, the appropriation statute would supersede or work an implied partial repeal of section 8(a)(1).”
Posted by: Marty Lederman | Dec 8, 2005 9:03:15 AM