The Unstable Constitutional Ground of the Religious Freedom Restoration Act of 1993
The Necessary and Proper Clause was designed to expand government powers, not restrict them.
By Armen Kharazian, Law Offices of Armen Kharazian PLLC, UDC Law Class of 2016
This commentary addresses the constitutional implications of the Religious Freedom Restoration Act of 1993 (RFRA).¹ Congress enacted RFRA to protect and enforce the constitutional right of the free exercise of religion against federal and state regulation. RFRA’s authority derived from the Necessary and Proper Clause of the U.S. Constitution, as applied to the federal government, and the Fourteenth Amendment of the U.S. Constitution, as applied to the states.² In City of Boerne v. Flores,³ the U.S. Supreme Court held RFRA unconstitutional as applied to the states because it violated the principles of separation of power and federal-state balance. RFRA’s applicability to federal law, however, was never directly challenged.
This commentary argues that RFRA can also be held unconstitutional with respect to federal law, on the grounds that the reliance by Congress on the Necessary and Proper Clause was flawed, because: a) that clause was designed to expand government powers, not restrict them,⁴ and b) the Clause alone may not be used to support federal law; it must be used in conjunction with some other underlying power — an attribute that RFRA lacks.
Congress passed RFRA in response to the U.S. Supreme Court’s decision in Employment Div., Dep’t of Human Res. of Oregon v. Smith.⁵ That decision held that the Free Exercise Clause did not relieve an individual of an obligation to comply with a law of general applicability, which only incidentally forbade or mandated an act against that person’s religious prescriptions. The Court also held that the First Amendment would bar the application of a neutral law of general applicability over a free exercise claim, only if such claim were accompanied by a claim of another violation of a constitutional protection. The stated purpose of RFRA was “to restore the compelling interest test as set forth in Sherbert v. Verner⁶ and Wisconsin v. Yoder⁷ and to guarantee its application in all cases where free exercise of religion is substantially burdened ….”⁸
Analysis of RFRA’S Applicability to Federal Law
Historically, courts have neither directly addressed nor properly analyzed the constitutionality of RFRA as applied to federal law. Although the Court in Burwell v. Hobby Lobby Stores, Inc.⁹ discussed the effect of RFRA on federal legislation, it did so in the context of issues involving statutory interpretation and the level of scrutiny. The court never reached the more profound issue of constitutionality of RFRA, as applied to federal law.
Free exercise of religion is a First Amendment freedom — a category entirely different from the powers of the government. Whereas the Necessary and Proper Clause is designed to enforce federal powers, the Free Exercise Clause is designed to limit them.
The problem with RFRA, however, is the integrity of the constitutional basis from which it draws authority to prevent or preempt federal law — the Necessary and Proper Clause.
The clause states that Congress shall have the power “[t]o make all Laws … necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”¹⁰ These powers are specific and limited.¹¹ The federal government may claim no other powers than those specifically reserved for it in the Constitution because it is a government of limited powers.¹² These powers do not include the power to enforce the free exercise of religion, with the exception of the power to enforce the Fourteenth Amendment protections on the states, which, however, the court in Boerne held unconstitutional.
Free exercise of religion is a First Amendment freedom — a category entirely different from the powers of the government. Whereas the Necessary and Proper Clause is designed to enforce federal powers, the Free Exercise Clause is designed to limit them.¹³ Therefore, RFRA’s constitutional authority to preempt or prevent federal law is lacking, if based solely on the Necessary and Proper Clause.
For comparison, Congress derived its authority to enact the Civil Rights Act of 1964¹⁴ from (1) the Commerce Clause,¹⁵ enforced through the Necessary and Proper Clause; (2) the Fourteenth Amendment Equal Protection Clause and the power under its § 5,¹⁶ enforcing the amendment’s protections in the states; and (3) the Fifteenth Amendment, protecting voting rights, and its enforcement clause in § 2.¹⁷ All these sources of authority relied on enforcement powers specifically afforded in the Constitution. Congress, however, has no such power to enforce the Free Exercise Clause over the federal government by invoking the Necessary and Proper Clause without first invoking another underlying constitutional power.
The plain language and statutory construction all but preclude support for the proposition that RFRA’s protections, as applied to federal law, are proper under art. I, sec. 8, cl. 18. Therefore, a review of congressional intent may help.
Similar statutes enforcing and expanding constitutional protections, such as the Civil Rights Act of 1964, have relied on properly drawn constitutional authority.
The pertinent Senate Report¹⁸ makes no reference to the Necessary and Proper Clause. Rather, it limits the authority of Congress to enact the statute to § 5 of the Fourteenth Amendment. In fact, chapter V(h) of the report, titled Constitutional Authority to Enact the Act, focuses exclusively on § 5 of the Fourteenth Amendment, discussing the power of Congress “to enforce by appropriate legislation” the provisions of the [Fourteenth] amendment “with respect to State governments ….”¹⁹
In contrast, the corresponding House Report²⁰ declares both art. I, sec. 8, cl. 18, and sec. 5 of the Fourteenth Amendment sources of authority for Congress’s enactment of RFRA.²¹ The report states that: “The Supreme Court has repeatedly upheld such congressional action after declining to find constitutional protection itself,”²² citing South Carolina v. Katzenbach,²³ Oregon v. Mitchell,²⁴ City of Rome v. United States,²⁵ and Thornburg v. Gingles.²⁶
However, Katzenbach and Mitchell concerned the Voting Rights Act of 1965,²⁷ which Congress enacted by properly drawing authority from the enforcement clauses of the Fourteenth and Fifteenth Amendments. City of Rome and Thornburg, too, concerned the Voting Rights Act and the power of Congress to enact legislation under the Fifteenth Amendment. None of the cases referred to in the House Report involved Congress’s invocation of the Necessary and Proper Clause to enact a statute that enforces a First Amendment freedom. Therefore, all the cases above must be distinguished from RFRA.
Within the CRS Report²⁸ on draft bills H.R. 1308 and S. 578²⁹ there is a section titled “Congressional Power to Enact.”³⁰ Here, the report states that § 5 of the Fourteenth Amendment is the proper authority for Congress to enact a law that would incorporate and apply to states the due process clause of the Fourteenth Amendment, “the “liberty” portion of which applies the religious freedom protections of the First Amendment”; and that art. I, sec. 8, cl. 18 is the proper constitutional authority for Congress to enact RFRA with respect to the federal government. The CRS Report, however, cites to the same case law as H.R. Rep. 103–88 did (Mitchell, City of Rome, and Thornburg, as well as Katzenbach v. Morgan³¹), and only in connection with RFRA’s effect on the states. H.R. Rep. 103–88, on the other hand, claims that these cases offer direct support for Congress’s authority to enact laws in connection with both the states and the federal government — an assertion this commentary contests and disproves.
The CRS Report mentions Morgan one more time, where it admits that Morgan concerns § 5 of the Fourteenth Amendment, but draws a parallel between that authority and art. I, sec. 8, cl. 18.
The parallel, also cited in Morgan, may be misleading, if not properly construed. In the relevant part, Morgan states: “By including s 5 [of the Fourteenth Amendment] the draftsmen sought to grant to Congress, by a specific provision applicable to the Fourteenth Amendment, the same broad powers expressed in the Necessary and Proper Clause, Art. I, s 8, cl. 18.”³² Morgan then explains “the reach of those powers” by referring to the “classic formulation” articulated by Chief Justice Marshall in McCulloch v. Maryand.³³
Evidently, the court in Morgan simply compares the scope of powers afforded Congress under § 5 of the Fourteenth Amendment, and art. I, sec. 8, cl. 18, as they apply, respectively, to the states and the federal government. It is true that in McCulloch, Chief Justice Marshall discussed the constitutionality of powers under art. I, sec. 8, cl. 18, but to suggest that he equated these powers with those under § 5 of the Fourteenth Amendment is misleading. In fact, in the same opinion, Chief Justice Marshall affirmed the purpose of the Necessary and Proper Clause as an instrument to enforce government powers, not to restrict them.³⁴
RFRA’s principal operational paragraph, § 3 (a) states: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability …” By limiting the powers of the government, Congress contradicts the purpose of the constitutional provision, from which it claims to derive its authority.
RFRA’s constitutional authority to prevent or preempt federal law is flawed because the Necessary and Proper Clause of article I, section 8 of the Constitution, from which it claims to derive such authority, applies to the powers of the government, not to the Bill of Rights. The Necessary and Proper Clause is construed as designed to expand these powers, not to contract them. Similar statutes enforcing and expanding constitutional protections, such as the Civil Rights Act of 1964, have relied on properly drawn constitutional authority, which, unlike RFRA, have included specific enumerated powers of § 8 when seeking enforcement under its Necessary and Proper Clause, and protections under the Fourteenth and Fifteenth Amendments, which are specifically endowed with respective enforcement clauses. For the foregoing reasons, RFRA’s claim of constitutional authority under the Necessary and Proper Clause of article I, section 8 of the Constitution is invalid, and may be held unconstitutional, if properly challenged in the courts.
Armen Kharazian is a member of the District of Columbia Bar and the owner of the Law Offices of Armen Kharazian PLLC. His practice includes matters related to the Foreign Corrupt Practices Act and anti-money laundering statutes; the Foreign Agents Registration Act and Lobbying Disclosure Act; 18 U.S.C. § 207 (Restrictions on former officers, employees, and elected officials of the executive and legislative branches); and corporate formation in D.C. He received his J.D. from the University of the District of Columbia David A. Clarke School of Law, an M.A. in security studies from Georgetown University and a B.A. in Middle Eastern studies from Yerevan State University in Armenia. He is on the board of the DC Chapter of the FBA.
¹Religious Freedom Restoration Act of 1993, Pub.L. 103–141, 107 Stat. 1488.
²See, e.g., H.R. REP. №103–88, at 9 (1993).
³City of Boerne v. Flores, 521 U.S. 507 (1997).
⁴See McCulloch v. Maryland, 17 U.S. 316, 419–21 (1819).
⁵Employment Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990).
⁶Sherbert v. Verner, 374 U.S. 398 (1963).
⁷Wisconsin v. Yoder, 406 U.S. 205 (1972).
⁸Religious Freedom Restoration Act, § 2(b)(1).
⁹Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014).
¹⁰U.S. Const. art. I, § 8, cl. 18.
¹¹The “foregoing and all other Powers” involve the powers enumerated in article I, section 8; powers reserved for the Executive (Article II) and the Judiciary (Article III); powers outlined in Articles IV, V and VI; and those in the Amendments to the Constitution concerning Congress’s power to enforce certain fundamental and civil rights under respective Amendments, where such power is specifically reserved.
¹²See U.S. Const. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”).
¹³See U.S. Const. amend. I.
¹⁴Civil Rights Act of 1964, Pub.L. 88–352, 78 Stat. 241.
¹⁵U.S. Const. art. I, § 8, cl. 4.
¹⁶U.S. Const. amend. XIV, § 5.
¹⁷U.S. Const. amend. XV, § 2.
¹⁸S. REP. №103–111 (1993), U.S.C.C.A.N. 1892.
¹⁹See id., at 13–14, U.S.C.C.A.N. 1892, at 1903.
²⁰H.R. REP. №103–88.
²¹The report states: “[T]he Committee believes that Congress has the constitutional authority to enact H.R. 1308. Pursuant to Section 5 of the Fourteenth Amendment and the Necessary and Proper Clause embodied in Article I, Section 8 of the Constitution, the legislative branch has been given the authority to provide statutory protection for a constitutional value when the Supreme Court has been unwilling to assert its authority. The Supreme Court has repeatedly upheld such congressional action after declining to find a constitutional protection itself. However, limits to congressional authority do exist. Congress may not (1) create a statutory right prohibited by some other provision of the Constitution, (2) remove rights granted by the Constitution, or (3) create a right inconsistent with an objective of a constitutional provision. Because H.R. 1308 is well within these limits, the Committee believes that in passing the Religious Freedom Restoration Act, Congress appropriately creates a statutory right within the perimeter of its power.” Id., at 9.
²³South Carolina v. Katzenbach, 383 U.S. 301 (1966).
²⁴Oregon v. Mitchell, 400 U.S. 112 (1970).
²⁵City of Rome v. United States, 446 U.S. 156 (1980).
²⁶Thornburg v. Gingles, 478 U.S. 30 (1986).
²⁷Voting Rights Act of 1965, Pub.L. 89–110, 79 Stat. 437.
²⁸David M. Ackerman, CRS Report for Congress: The Religious Freedom Restoration Act and The Religious Freedom Act: A Legal Analysis (Cong. Research Serv. Doc. 92–366A) (1992).
²⁹House and Senate versions of the bill subsequently enacted into law as P.L. 103–141, Religious Freedom Restoration Act of 1993.
³⁰See Ackerman, supra note xxviii, at 30.
³¹Katzenbach v. Morgan, 384 U.S. 641 (1966).
³²Id. at 650–51.
³³McCulloch v. Maryland, 17 U.S. 316, 421 (1819) (“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.”).
³⁴Chief Justice Marshall wrote: “We think so for the following reasons: 1st. The clause is placed among the powers of congress, not among the limitations on those powers. 2d. Its terms purport to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted. No reason has been, or can be assigned, for thus concealing an intention to narrow the discretion of the national legislature, under words which purport to enlarge it. The framers of the constitution wished its adoption, and well knew that it would be endangered by its strength, not by its weakness. . . . If . . . their intention had been, by this clause, to restrain the free use of means which might otherwise have been implied, that intention would have been inserted in another place, and would have been expressed in terms resembling these. ‘In carrying into execution the foregoing powers, and all others,’ &c., ‘no laws shall be passed but such as are necessary and proper.’ Had the intention been to make this clause restrictive, it would unquestionably have been so in form as well as in effect.” Id. at 419–20.