Judiciary HomepageUNITED STATES HOUSE OF REPRESENTATIVES
COMMITTEE ON THE JUDICIARY
SUBCOMMITTEE ON THE CONSTITUTION
Subcommittee Hearing on "Congress, the Court and the Constitution"
Thursday, January 29, 1998
Room 2226 Rayburn House Office Building
9:30 a.m.
Testimony of Neil Kinkopf, Visiting Assistant Professor
Case Western Reserve University School of Law
It is an honor to be invited to give testimony before this subcommittee and to appear on such a distinguished panel. The topic of today's hearing, "Congress, the Court, and the Constitution" calls to mind Justice Jackson's observation on the relationship between the branches of the federal government. The Constitution, he said, "enjoins upon [the] branches separateness but interdependence, autonomy but reciprocity."(1) The Supreme Court's recent decision in Boerne v. Flores,(2) affords an excellent opportunity for examining both the separateness and the interdependence of constitutional interpretation by the courts and by Congress. I will have a few words to say about the separateness and independence of congressional constitutional interpretation, but I want to concentrate on the interdependence and reciprocity of judicial and congressional constitutional interpretation. In particular, I will examine the level of deference that the courts owe to Congress's constitutional judgments.
I will begin by discussing the level of deference due Congress's constitutional judgments in separation of powers cases generally. This discussion will set the stage for examining the level of deference that was due and that was actually accorded in Boerne. I will then draw from this examination observations about how Congress can help the Courts defer to Congress's constitutional judgments. I arrive at two conclusions, First, where it is unclear whether Congress has acted within the scope of one of its enumerated powers, the Court will be deferential to Congress's judgment that it has acted within that power, but the extent of the deference will be greater -- and perhaps determinatively so -- where Congress has made findings that indicate Congress is aware of the nature and limits of the enumerated power it is exercising and has drafted its legislation in recognition of and conformance to those limits. Second, where there is concern that Congress has actually exercised the power of another branch, the legislative history should specifically address this concern and explain how Congress has sought to avoid stepping beyond the legislative sphere and has indulged interbranch comity with respect to the executive or judiciary.
After this discussion of the interdependence between Congress and the Courts, I will turn to their independence and review some of the benefits that derive from congressional non-acquiescence in Supreme Court doctrine. This discussion draws on analogous executive branch approach to non-acquiescence. I conclude that there are important benefits to be derived from Congress exercising an independent interpretive role, even where its interpretation conflicts with the Supreme Court's.
I. Interdependence: Judicial Deference to Congressional Constitutional Judgments
A. The General Separation of Powers Context
There is in fact no single level of deference that the courts do or should accord Congress's constitutional judgments. Instead, the level of deference due a congressional constitutional judgment depends on the subject matter of the legislation under review and the specific power under which Congress is acting as well as the context and content of the specific legislation. So, for example, the courts will accord differing levels of deference to Congress's constitutional judgments in connection with legislation that draws racial classifications, gender-based classifications, and age-based classifications. Because many of the recent cases that have starkly posed the question of deference, including Boerne, have arisen in the context of separation of powers,(3) I will confine my inquiry to the level of deference that the judiciary owes Congress's constitutional judgments regarding the allocation and exercise of the federal government's power.
Even under the heading "separation of powers," the level of judicial deference due Congress's constitutional determinations will vary. It is helpful to remember the purposes that the constitutional structure of the federal government is designed to serve. The Constitution structures the federal government to achieve two fundamental purposes. First, it safeguards the liberty of the governed by dividing the federal government into three branches and assigning each a distinct role in the exercise of federal power.(4) The framers accepted the premise that large concentrations of unchecked power were peculiarly subject to abuse and so divided the constitutional powers of the federal government into three branches and subjected each branch in the exercise of its power to checking or limiting power vested in the others.(5) The natural ambition of each branch would lead it to prevent the others from encroaching upon its constitutionally assigned sphere.(6) Under this design, then, each branch is to be the primary guardian of its own constitutional role. Second, the Constitution's framers were determined to create a viable and effective national government to replace what they regarded as the embarrassing spectacle of ineffectual national government under the Articles of Confederation.(7) The Constitution assigns Congress the function of establishing effective forms of national self-government and grants Congress broad powers to structure the federal government primarily through the Necessary and Proper Clause.(8) Congress establishes the structure of the executive and judicial branches. Within that structure it orders and arranges the powers and duties of each by establishing departments and agencies(9) and the subunits and bureaus of each, as well as by creating all offices and defining their duties and powers and the limits on those duties and powers. Congress also prescribes the procedures officials must follow in exercising federal power and the conditions on which that power may be exercised. In sum, while the Constitution creates the executive and judicial branches, Congress gives each its form and content, according to its judgment as to which forms will be most effective within the constraints of the Constitution's text and structure.(10)
It is occasionally asserted that Congress has exercised its Necessary and Proper Clause power in a way that impermissibly encroaches upon one of the other branches by enacting legislation that interferes with the ability of one of the other branches to perform its functions.(11) The two fundamental purposes of the Constitution's structure thus often come into tension. Rather than establishing a system of specific, categorical rules to resolve this tension, the Supreme Court has interpreted this division to be "governed according to common sense and the inherent necessities of the governmental co-ordination."(12) Indeed, the Supreme Court has fashioned a standard that, in both formulation and application, is extremely deferential to the Congress's judgment that the resulting arrangement of federal power will comport with the constitutional system of separation of powers. Thus, the Court will find Congress impermissibly to have interfered with one of the other branches only if its enactment "prevents the [other b]ranch from accomplishing its constitutionally assigned functions."(13) Even then, a statute that does so is unconstitutional only if its impact is not justified by an overriding need to promote objectives within the Congress's constitutional authority.(14)
The Court has used this same general separation of powers formulation whether Congress is asserted to have interfered with the executive branch or with on the judicial branch.(15) The Court's application of this formulation has been only slightly less deferential where a statute is asserted to have interfered with the judiciary as compared with asserted interference with the executive.(16) In Commodity Futures Trading Comm'n v. Schor,(17) the Supreme Court held that Congress could authorize a non-Article III court to decide a state common law cause of action if raised as a counterclaim in a proceeding that is otherwise validly before the tribunal. Generally, such tribunals are authorized to hear regulatory or administrative claims but the Supreme Court has held that Article III prohibits Congress from assigning them authority to hear causes of action that are within the core of Article III jurisdiction. State common law causes of action are at the core of Article III's jurisdiction. In Schor, the Court allowed a non-Article III tribunal to exercise jurisdiction over a contract dispute, a classic state common law cause of action, that was raised as a counterclaim in a proceeding initiated to resolve an administrative claim. While the Court recognized that such claims implicate the core of the judicial power, it was extremely deferential to Congress's constitutional conclusion that allowing the CFTC to hear such disputes as counterclaims would not subvert the role of the judiciary or the constitutional balance of power. In particular, the Court deferred to Congress's judgment that counterclaim jurisdiction was important to the CFTC's effective operation, pronouncing that the legislation's "primary focus was on making effective a specific regulatory scheme . . . ."(18)
This approach allows Congress to fulfill its constitutional role of arranging and ordering the exercise of federal power through the forms it deems to be most effective and to maintain the constitutional balance of power, while preserving to each branch the role of primary guardian of its constitutional sphere. It is in view of this latter role that we find justification for the Court's somewhat less deferential application of the general separation of powers principle to cases involving possible encroachments on the judicial branch as compared with the executive branch. In the former, the Court acts as guardian of its own role, while in the latter the Court steps back and allows the executive branch to guard itself. It bears emphasizing, however, that the Court is only slightly less deferential to Congress's judgments in cases involving asserted encroachment on the judiciary. The Court's deference in these cases demonstrates the significance it places on Congress's function of establishing effective mechanisms of governance and its respect for Congress's constitutional judgment that the mechanisms it selects will not undermine the separation of powers.
A related question derives from the constitutional division of power: Congress may exercise only the legislative power. Any attempt by Congress to exercise judicial or executive power, whether itself or through one of its committees or agents, is unconstitutional.(19) This much is uncontroversial. The difficult case arises when, in response to an assertion that a statute represents an exercise of a non-legislative power, Congress can plausibly point to an expressly enumerated power as authority for its statute. Put another way, how do we determine whether Congress, under the guise of an enumerated power, has actually exercised an executive or judicial power? At least one of the framers, James Madison, recognized this concern and wrote:
The legislative department['s] . . . constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the coordinate departments. It is not infrequently a matter of real nicety in legislative bodies, whether the operation of a particular measure will, or will not, extend beyond the legislative sphere.(20)
Recalling the constitutional commitment to effective self-government and recognizing that the Constitution impresses upon each branch the duty to act as primary guardian of its own constitutional role and grants each branch powers to fulfill that duty, Congress should expect great deference to its determination that a given piece of legislation represents a necessary and proper exercise of one of its constitutionally enumerated powers.(21) Indeed, James Madison made the above-quoted observation in the context of arguing that the only effective means of keeping Congress within the legislative sphere would be through each branch acting to preserve its constitutional role rather than through rigid and formalistic "parchment barriers."
While Madison was prescient in foreseeing this controversy, it has only rarely materialized. The question whether legislation is within Congress's enumerated power, or whether it is properly seen as an exercise of a non-legislative power has most often involved concern that Congress has exercised an executive power, particularly the appointment power. The Constitution establishes a clear division of labor with respect to creating and filling federal offices. The Constitution assigns Congress the power to create offices and assigns the President primary responsibility for filling them.(22) This clear line separating the power to create offices from the power to appoint officers is breached when Congress adds duties to an existing office. While Congress plainly has authority to define and redefine offices, there is concern that in adding duties to an existing office with a known occupant, Congress will have essentially created a new office and chosen the officer to fill the "new" office.(23) It was on this ground that the Financial Institutions Reform, Recovery and Enforcement Act was ruled unconstitutional.(24)
As the framers anticipated, these controversies are typically resolved between the Congress and the executive branch without involving the judiciary. Nevertheless, the courts have had occasion to fashion a standard, known as the Shoemaker doctrine, to govern this controversy. As with the approach to separation of powers generally, the Shoemaker doctrine is, in both formulation and application, extremely deferential to Congress. It requires only that the new duties be germane to the office's pre-existing duties. In a recent decision, the Supreme Court held that any commissioned military officer could be detailed to act as a military judge without a formal constitutional appointment because the duties of a military judge are sufficiently germane to the duties of any commissioned officer of the armed forces.(25) A comparison of the duties of a Second Lieutenant on a naval supply ship, for example, with the duties of a military judge demonstrates just how deferential the Court's application of the germaneness requirement can be.
B. Deference in Boerne
Last term, the case of Boerne v. Flores(26) presented the question of how to address this controversy when legislation is attacked as an exercise of the judicial power, rather than the executive power. Specifically, the Court was asked to determine whether the Religious Freedom Restoration Act ("RFRA") was a valid exercise of Congress's broad authority under Section 5 of the Fourteenth Amendment, or instead represented congressional exercise of the judicial power.(27) Consistent with the Court's approach to separation of powers generally, as discussed above, and in recognition of the important constitutional values supporting that approach, the Court should have employed a deferential standard similar to the Shoemaker germaneness requirement and have applied that standard with slightly greater scrutiny, which is to say with slightly less deference, than the Court accords in the Shoemaker context. In fact, this is precisely what the Court purported to do.
In formulating the governing standard, the Court virtually paraphrased the Shoemaker germaneness requirement. It held that "[t]here must be a congruence and proportionality between" Congress's enumerated power and the "means adopted to that end."(28) In the same breath, the Court expressed its considerable deference for Congress's judgment, "the line between measures that" are within and without Congress's authority "is not easy to discern, and Congress must have wide latitude in determining where it lies . . . ."(29) Despite the articulated standard and expressed intention to accord substantial deference to Congress's constitutional judgment that the enactment of RFRA was within its enumerated powers, the Court ruled the Act unconstitutional on the ground that RFRA was not within Congress's authority under Section 5 of the Fourteenth Amendment.
Congress had compiled an impressive and extensive legislative record detailing the injuries that it sought to remedy through RFRA and the need for legislation to remedy those injuries.(30) I believe that the Court articulated an appropriately deferential standard by which to review whether RFRA was within Congress's enumerated power to enact but that, in light of the extensive legislative findings and conclusions, the Court was insufficiently deferential in applying that standard to Congress's constitutional judgment that RFRA was within its authority. Why, then, was the Court insufficiently deferential to Congress's determination? Part of the blame obviously rests with the Court. The Court failed to locate its analysis within the broader separation of powers context or even within the more specific context of cases, like Shoemaker and Weiss, that examine whether Congress has actually exercised the power of another branch or has remained within its enumerated powers. Had it explored this context, it would have found further support for the "congruence and proportionality" standard it articulated, but would also have garnered concrete guidance on how to apply that standard.(31) This would have indicated using Shoemaker and Weiss as a baseline against which to assess the level of deference due Congress's findings and conclusion, and should have alerted the Court that the level reflected in its decision was inadequate.
Nevertheless, Congress has the means to provide the Court a basis for appropriate deference to Congress's constitutional judgments. The Constitution embodies the fundamental judgment that the federal government is a limited government of expressly enumerated powers. Although the line between actions that fall within these powers and outside of them is not always clear, the line "exists and must be observed."(32) The Court takes very seriously its role in ensuring that Congress does not either itself take action or authorize other federal action that is beyond these enumerated powers, and may in fact view this as its most important function.(33) One might ask why the Court should require Congress to make such findings expressly. Surely Congress's judgment that a given piece of legislation is within its constitutional power to enact is implicit in its enactment. In the vast majority of cases, the Court accepts Congress's implicit judgment. Where it is clear to the Court that the enactment is within Congress's authority, it requires no express corroboration. It is where the Court cannot perceive how the enactment respects the constitutional limits on Congress's authority that it looks to Congress for an explanation in the form of findings and a legislative record. First, this exercise ensures that Congress recognizes the same limits on its power that the Court perceives and that Congress has drawn its legislation to conform to those limits. Second, there is reason to doubt that Congress considers the constitutionality of each provision of each piece of legislation it enacts and therefore to question whether enactment carries an implicit congressional determination of constitutionality. For example, Congress has enacted hundreds of legislative vetoes since the Supreme Court ruled them unconstitutional in INS v. Chadha.(34) There is no indication that Congress pauses to consider the constitutionality of these provisions before enacting them. It is understandable, therefore, that the Court may have some doubt as to whether Congress actually considers the constitutionality of each provision it enacts. If Congress has not, to what is the Court to defer?
In Boerne the Court examined the legislative record for evidence that Congress recognized the extent and limits on its Section 5 power and had drafted RFRA with those limits in mind. The Court noted that the record lacked evidence of "animus or hostility to the burdened religious practices" and was not directed to the issue of the intent underlying generally applicable state laws and local ordinances. More important, the legislative record did not attempt, in the view of the Court, to demonstrate a congruence and proportion between the operative provisions of RFRA and the Congress's power under Section 5 to remedy or prevent violations of individual constitutional rights. In this connection, the Court emphasized RFRA's "universal coverage" and, at least by implication, the legislative record's failure to consider whether a different standard might be appropriate in different contexts, such as prison management as opposed to state employment as opposed to zoning regulation.(35) Finally, the legislative record included significant indication that RFRA was in fact designed to exercise the judicial power by overruling the Supreme Court's decision in Oregon v. Smith.(36) It is, at least conceivably, within Congress's ability to remedy each of these shortcomings in the legislative record.(37)
A second case is instructive, United States v. Lopez. This case raised the question whether Congress had acted within the scope of its power under the Commerce Clause.(38) Congress had enacted a statute making it a federal offense to possess a gun in a school zone. The question presented was, in shorthand, whether the possession of a gun in a school zone is an "activity . . . that substantially affect[s] interstate commerce." There, the Court did not perceive the substantial effect and so looked for legislative findings in order that it might defer to Congress, but found them lacking.(39)
This review of Boerne and Lopez yields two observations. First, where it is unclear whether Congress has acted within the scope of one of its enumerated powers, the Court will be deferential to Congress's judgment that it has acted within that power, but the extent of the deference will be greater -- and perhaps determinatively so -- where Congress has made findings that indicate Congress is aware of the nature and limits of the enumerated power it is exercising and has drafted its legislation in recognition of and conformance to those limits.(40) Put another way, the courts will defer to Congress's interpretation of its own constitutional authority, such as under the Commerce Clause or Section 5 of the Fourteenth Amendment, when there is an interpretation to defer to. Second, where there is concern that Congress has actually exercised the power of another branch, the legislative history should specifically address this concern and explain how Congress has sought to avoid stepping beyond the legislative sphere and has indulged interbranch comity with respect to the executive or judiciary, as the case may be.
II. Congress's Independent Role in Interpreting the Constitution
While Boerne demonstrates that the Court will extend broad deference to Congress's constitutional judgment, reflected in a well-developed legislative record, that it has drafted legislation that remains within the boundaries of enumerated congressional authority, Boerne also indicates that the Court will not defer to Congress's determination on the logically prior question: precisely where those boundaries are drawn. Nevertheless, there are important benefits to be derived from Congress expressing, including as the declared basis for legislation, its own constitutional interpretation. First, where Congress adheres to a constitutional interpretation that is at odds with the Court's precedents and legislates on that basis, it gives the Court an opportunity to reconsider and overrule its precedents. Once again, Boerne is instructive. Each of the three dissenting justices urged the Court to use RFRA as an occasion to revisit and overrule its decision in Smith.(41) A less dramatic consequence than overruling a precedent or line of precedents, Congress's adherence to its own constitutional interpretation may give the Court an opportunity to develop its doctrine within the confines of existing precedent or to consider constitutional theories that had not previously been argued. Thus, when Congress exercises its independent constitutional judgment, it can actually support and promote Court's ability to perform its "duty . . . to say what the law is"(42) in a way that slavish adherence to precedent does not.(43)
Judiciary Homepage1. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).
2. 117 S. Ct. 2157 (1997).
3. The Supreme Court has invoked the doctrine of separation of powers to resolve a large number of recent controversies, see, e.g., Printz v. United States, 117 S. Ct. 2365 (1997); Edmond v. United States, 117 S. Ct. 1573 (1997); Clinton v. Jones, 117 S. Ct. 1636 (1997); Loving v. United States, 116 S. Ct. 1737 (1996); Plaut v. Spendthrift Farm Co., 115 S. Ct. 1447 (1995), including at least one case where the litigants apparently did not realize the doctrine was implicated. See Lebron v. National Passenger Railroad Corp., 115 S. Ct. 961 (1995).
4. See, e.g., Loving v. United States, 116 S. Ct. 1737, 1743 (1996); Plaut v. Spendthrift Farm Co., 115 S. Ct. 1447, 1463 (1995) (Breyer, J., concurring); Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 272 (1991); Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 824 (1987); Bowsher v. Synar, 478 U.S. 714, 730 (1986); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634-35 (1952) (Jackson, J., concurring); The Federalist No. 47, at 302-03 (Madison) (Clinton Rossiter, ed. 1961).
5. See generally The Federalist Nos. 47-49, 51.
6. The Federalist No. 51, at 337 (Edward Mead Earle, ed. 1976)
7. See, e.g., The Federalist No. 15 (Hamilton) (Clinton Rossiter, ed. 1961); The Federalist No. 51, at 321 (Madison). The Court has repeatedly identified effective self-government as an important policy derived from, and to be applied in questions regarding, the constitutional structure of the federal government. See, e.g., Mistretta v. United States, 488 U.S. 361, 381 (1989); Buckley v. United States, 424 U.S. 1, 121 (1976) (per curiam); Panama Ref'g Co. v. Ryan, 293 U.S. 388, 421 (1935); Union Bridge Co. v. United States, 27 S. Ct. 367, 374 (1907) Buttfield v. Stranahan, 24 S. Ct. 349, 355 (1904); Field v. Clark, 12 S. Ct. 495, 505 (1892).
8. U.S. Const. Art. I, § 8 cl. 17. On Congress's broad authority under the Necessary and Proper Clause, see M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). The Constitution specifically confers significant latitude in Congress to structure the federal judiciary in Article III. See U.S. Const. Art. III, §§ 1, 2.
9. In the case of the judiciary, it creates and structures the various article III courts and the agencies and offices that support those courts, such as the Administrative Office of United States Courts and magistrate judgeships.
10. On the importance of effective self-government as a constitutional value, see Gerhard Casper, Separating Power: Essays on the Founding Period (1997); Peter M. Shane, Independent Policymaking and Presidential Power: A Constitutional Analysis, 57 Geo. Wash. L. Rev. 596 (1989); Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573 (1984).
11. I mean to distinguish those cases where Congress has impermissibly aggrandized itself by assigning non-legislative power to itself, one of its committees, or an official subject to its control. See, e.g., Bowsher v. Synar, 478 U.S. 714 (1986). I discuss this anti-aggrandizement principle infra.
12. J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406 (1928).
13. Nixon v. Administrator of General Servs., 433 U.S. 425, 443 (1977).
14. Id.
15. See, e.g., Mistretta v. United States, 488 U.S. 361, 393 (1989); CFTC v. Schor, 478 U.S. 833, 851 (1986) (emphasizing minimal practical effect on the judiciary and importance of asserted encroachment to challenged legislative scheme).
16. While the Court has typically upheld statutes against the assertion that they impermissibly encroach upon the judiciary, see Schor; Thomas v. Union Carbide, 473 U.S. 568 (1985), the Court has occasionally struck down a statute on the grounds of encroachment on the judiciary, see Schor, 478 U.S. at 851-52 (characterizing Northern Pipeline Constr. Co. v. Marathon Pipeline Co., 458 U.S. 50 (1982), and Hayburn's Case, 2 U.S. (2 Dall.) 408 (1792)). In contrast, the Court has never struck down a statute as an encroachment on the executive branch.
17. 478 U.S. 833 (1986).
18. 478 U.S. at 855; see also Thomas v. Union Carbide, 473 U.S. 568, 594 (1985). Compare Morrison v. Olson, 487 U.S. 654 (1988) (applying test in the context of asserted interference with the executive branch).
19. See, e.g., Metropolitan Washington Airports Authority v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252 (1991); Bowsher, 478 U.S. at 727; Myers v. United States, 272 U.S. 52 (1926).
20. The Federalist No. 48, at 323 (Madison) (Edward Mead Earle, ed. 1976).
21. See, e.g., M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819).
22. The Appointments Clause requires the President to obtain the Senate's advice and consent and allows Congress, in establishing inferior offices, to provide for appointment by the President, a court of law, or a department head without Senate confirmation. However one characterizes the President's role, what is clear is that the Constitution specifically and intentionally withheld the power to fill offices from Congress. The framers were concerned placing the power to create offices and the power to fill them in the same hands would lead to abuse.
23. A closely related issue would arise if legislation were to abolish an office and recreate it. In this case, the issue would be whether Congress had exercised the executive removal power under the guise of its structural power under the Necessary and Proper Clause.
24. Until 1989 the savings and loan, or thrift, industry was regulated by the Federal Home Loan Bank Board and the Federal Savings and Loan Insurance Corporation. FIRREA abolished these entities and replaced them with the Office of Thrift Supervision and the Savings Association Insurance Fund. OTS differed from FHLBB primarily in that it would be headed by an individual director, rather than a three-member board. FIRREA provided that the chairman of the board of the FHLBB would serve as the initial director of OTS. See Olympic Fed. Sav. & Loan v. Director, Office of Thrift Supervision, 732 F. Supp. 1183 (D.D.C. 1990).
25. Weiss v. United States, 114 S. Ct. 752 (1994).
26. 117 S. Ct. 2157 (1997).
27. I do not mean to suggest that this determination turns on Congress's motive. In the Shoemaker context, for example, Congress may not add extraneous duties to an office, regardless of its motive for doing so. Compare Weiss, 114 S. Ct. at 759 (suggesting that where the legislation adds the new duties not to a specific office but to a large class of offices, germaneness may be required only if there is evidence that the legislation is motivated by a congressional attempt to exercise the appointment power). It is, in that sense, an objective standard. If Congress adds non-germane duties to an existing office, it has exercised the appointment power, whether it subjectively meant to or not.
28. Id. at 2164.
29. Id.
30. See, for example, the extensive history cited by Boerne itself. Id. at 2169.
31. An analogy may be illuminating. Merely articulating the strict scrutiny standard, which requires that legislative means be narrowly tailored to a compelling governmental interest, does not fully capture strictness with which that standard is applied. This can be seen most clearly by examining the practical application of the standard in the Court's precedents. Similarly, a full appreciation for the deference due Congress is most clearly seen from the deference actually accorded in separation of powers cases involving the judiciary, such as Schor, as compared with those involving the executive, such as Morrison, as well as those involving concern that Congress has exercised the power of another branch, such as Shoemaker and Weiss.
32. Boerne, 117 S. Ct. at 2164.
33. See id. at 2162 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)); see also United States v. Lopez, 115 S. Ct. 1624 (1995).
34. 462 U.S. 919 (1983). See Louis Fisher, The Legislative Veto: Invalidated It Survives, 56 L. & Contemp. Probs. 273, 288 (1993).
35. 117 S. Ct. at 2162.
36. 494 U.S. 872 (1990). The Boerne Court began its analysis by observing that "Congress enacted RFRA in direct response to the Court's decision in . . . Smith." 117 S. Ct. at 2160. The findings and purposes set forth in RFRA support the Court's view. These findings include statements that may be taken to assert the meaning of religious liberty protected under the first amendment, criticize Smith, and articulate a different constitutional standard for assessing First Amendment claims than the Court had fashioned in Smith. See 42 U.S.C. § 2000bb(a) & (b). The Court appears to have adopted this understanding of RFRA. 117 S. Ct. at 2161 ("Many [members of Congress] criticized the Court's reasoning [in Smith], and this disagreement resulted in the passage of RFRA.").
37. I do not mean to say Congress can necessarily, or easily, satisfy the Court. The legislative record that Congress compiled to support enactment of RFRA included an understandable deficiency; it did not recognize that Congress's authority under Section 5 of the Fourteenth Amendment was limited to remedial and preventive action. This deficiency is understandable because, until the Court decided Boerne, the Court had not articulated that limitation. It is now possible for Congress torevisit the question of how to remedy and prevent religious discrimination with these limitations in mind and to draft a bill supported by a legislative record that reflects Congress's constitutional judgment that the measure will remedy and prevent religious discrimination in ways that are proportional to and congruent with the limitations of Congress's authority under Section 5. The Boerne opinion demonstrates that the Court will regard such the constitutional judgment contained in such a legislative record with great deference.
38. U.S. Const. Art. I, § 8, cl. 3.
39. See 115 S. Ct. at 1632. But see id. at 1659-61 (Breyer, J., dissenting).
40. See Philip P. Frickey, The Fool on the Hill: Congressional Findings, Constitutional Adjudication, and United States v. Lopez, 46 Case W. Res. L. Rev. 695 (1996) (reviewing the benefits of requiring legislative findings to determine whether Congress acted within its Commerce Clause power).
41. See Boerne, 117 S. Ct. at 2176 (O'Connor, J., dissenting); id. at 2185-86 (Souter, J., dissenting) (expressing desire to reconsider Smith and articulating grave doubts about its its "precedential value and its entitlement to adherence").
42. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
43. I do not mean to endorse contumacious adherence to rejected interpretations. Such resistance can significantly undermine the ability of the judiciary to fulfill its constitutional role. The possibility of such a course of action does not alone eliminate the benefits that may follow on a responsible adherence to a constitutional interpretation in conflict with Supreme Court precedent. As is often the case, this is a question of balance.