How to Apply the Religious Freedom Restoration Act to Federal Law Without Violating the Constitution

Learned commentators have called the Religious Freedom Restoration Act of 1993 (“RFRA” or “the Act”) “perhaps the most unconstitutional statute in the history of the nation” and “the most egregious violation of the separation of powers doctrine in American constitutional history.” In the 1997 case of City of Boerne v. Flores, the Supreme Court struck down the Act in its applications to state and local governments, declaring that “RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance.” The Act’s applications to federal law, however, survived Boerne, which means that plaintiffs with religious freedom claims against the federal government have a formidable legal tool at their disposal. RFRA raises fundamental questions about the relationship between legislative and judicial power. This Article aims to facilitate the operation of RFRA’s surviving federal law applications, which I will call “Federal RFRA,” by considering how this statute fits into the constitutional scheme of governmental power and how courts should proceed in construing it. RFRA offers a novel structural model for legislation. In the Act’s applications to federal law, Congress made a blanket precommitment to protect religious liberty against federal encroachment, beyond what the Supreme Court has held the Constitution to require. This form of legislation may become increasingly important to the extent the Court abjures enforcement of constitutional rights against the federal government. The Boerne Court’s elimination of RFRA’s state law applications casts a clear spotlight on two inquiries the Court did not have to make. First, did Congress exceed its constitutional role by legislating a precommitment to enhance free exercise protection against federal authority? Second, assuming Federal RFRA survives the first inquiry, how can courts follow Congress’s directive to administer a statutory regime of mandatory religious accommodation without countenancing violations of the Establishment Clause?