The separation of powers and congressional power issues remain live after
Cutter. See Thomas conc.
Cutter is an extremely narrow holding addressing Est Cl arguments regarding the
prison provisions only.
Marci
Sent from my Verizon Wireless BlackBerry
-----Original Message-----
From: "Volokh, Eugene" <vol...@law.ucla.edu>
Date: Mon, 11 Apr 2011 15:55:25
To: hamilto...@aol.com<hamilto...@aol.com>; Law & Religion issues for
LawAcademics<religionlaw@lists.ucla.edu>
Subject: RE: A John Paul Stevens Puzzle
I don't see the Court's analysis as resting on the view that the
statute violated separation of powers, as opposed to being outside Congress's
enumerated powers. But, Marci, is your view that the Court changed its mind on
the separation of powers question from Boerne to Cutter? Or that the
separation of powers question remains live despite Cutter?
Eugene
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
> Sent: Monday, April 11, 2011 3:50 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: A John Paul Stevens Puzzle
>
> We briefed the separation of powers argument as a stand-alone argument.
> The Court adopted much of our reasoning other than the Establishment
> Clause. If one re-reads the decision, there is significant attention paid to
> the separation of powers as one would expect when Congress not only
> spends 3 years literally slamming the Court for its Free Exercise Clause
> interpretation and then enacts the first law in history using a judicial
> level of
> scrutiny crafted for constitutional cases as a statutory standard. I remember
> Doug telling NPR this was a "turf war" between the branches. Precisely.
>
> Marci
> Sent from my Verizon Wireless BlackBerry
>
> -----Original Message-----
> From: "Conkle, Daniel O." <con...@indiana.edu>
> Sender: religionlaw-boun...@lists.ucla.edu
> Date: Mon, 11 Apr 2011 22:01:26
> To: Law & Religion issues for Law Academics<religionlaw@lists.ucla.edu>
> Reply-To: Law & Religion issues for Law Academics
> <religionlaw@lists.ucla.edu>
> Subject: RE: A John Paul Stevens Puzzle
>
> I assume Marci is referring to the separation of powers, Marbury v. Madison,
> elements of the opinion, which I think are properly confined to the 14th Am.
> Sec. 5 context and therefore to a federalist interpretation, but which could
> be read more broadly.
>
> Dan Conkle
>
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
> Sent: Monday, April 11, 2011 4:48 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: A John Paul Stevens Puzzle
>
> I'm puzzled by the statement that "RFRA was not ... held
> unconstitutional solely on federalism grounds" -- as I understand the
> majority opinion, it cited only the federalism objections to RFRA, and not
> the Establishment Clause. (Justice Stevens' solo concurrence mentioned the
> Establishment Clause, but the five other Justices in the majority didn't
> endorse that opinion.)
>
> > -----Original Message-----
> > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> > boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
> > Sent: Monday, April 11, 2011 1:31 PM
> > To: Law & Religion issues for Law Academics
> > Subject: Re: A John Paul Stevens Puzzle
> >
> > RFRA was not challenged nor held unconstitutional solely on federalism
> > grounds. That is the post hoc explanation of its proponents.
> > But you are correct that RFRA as app to federal law comes up through the
> > courts without a constitutional angle because no party will challenge it.
> > It
> is
> > the latest example of what is wrong with a system that requires the AG
> > Office to defend federal law without serious consideration of whether it is
> > actually constitutional or not
>
> Well, but at least following Cutter v. Wilkinson, doesn't it seem
> pretty likely that the RFRA is indeed actually constitutional against the
> federal government, just as RLUIPA was indeed upheld?
>
> Eugene
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