Down With RFRA (Is It An Unconstitutional Entrenchment Provision?)

A friend from law school recently suggested to me that RFRA might be an unconstitutional "entrenchment provision." (This isn't really an original idea, as scholars have been kicking it around for a while). At least in theory, this could matter in Hobby Lobby since the plaintiffs' challenge is built on RFRA's requirement that subsequent acts of Congress satisfy strict scrutiny when they substantially burden the free exercise of religion. If that RFRA requirement is unconstitutional, the whole challenge would fail. Let's discuss.

First, an entrenchment provision is any congressional action that prohibits a future act of Congress or restricts Congress' ability to act freely. For example, a law that purports to be unrepealable without a supermajority vote of a future Congress. A law that requires future congresses to pass only balanced budgets would also be an entrenchment provision. You can read more about entrenchment provisions here.

Second, RFRA is a form of entrenchment provision. In part, it claims that "Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter." 42 U.S.C. 2000bb-3(b). RFRA goes on to require that any substantial burden on religion pass strict scrutiny, as mentioned above. In effect, RFRA says that future congresses can only pass certain laws that bear on religion. RFRA was famously passed as a congressional response to the Employment Division v. Smith decision, which many saw as a blow to religious freedoms. The RFRA Congress figured that it could reinstate the Court's pre-Smith Free Exercise jurisprudence by requiring all future substantial burdens to pass strict scrutiny. Sounds like legislative entrenchment to me.

Third, I believe that legislative entrenchment is unconstitutional as a violation of Article I, Section 1 legislative vesting. The Vesting Clause says that "All legislative Powers herein granted shall be vested in a Congress of the United States." There's been a lot of debate about whether the Vesting Clause in fact forbids entrenchment provisions. Proponents of legislative entrenchment (like Eric Posner and Adrian Vermeule) argue that the Vesting Clause says nothing about how past, present, and future congresses must share the legislative power amongst themselves; therefore one congress can restrict a future congress. But the single best argument I can think of is this hypothetical: Imagine Congress passes a law preventing future congresses from taking any action whatsoever. That's a fairly absurd idea, and yet one that Posner's theory would have to embrace as valid. Best guess: The Vesting Clause wants present congresses to be able to exercise the full legislative power.

That is Justice Scalia's view. Here's a quote from his concurrence in Lockhart, 546 U.S. 142  (2005):

“[O]ne legislature,” Chief Justice Marshall wrote, “cannot abridge the powers of a succeeding legislature.” Fletcher v. Peck, 6 Cranch 87, 135 (1810). “The correctness of this principle, so far as respects general legislation,” he asserted, “can never be controverted.” Ibid.

You might think that RFRA is not entrenchment--or at least not impermissible entrenchment--because it allows future congresses to opt out of RFRA. See 42 U.S.C. 2000bb-3(b). Why that would matter though, I don't know. A future congress that doesn't wish to be bound and that also doesn't care to invoke the RFRA opt-out clause should simply be able to impliedly repeal RFRA. 

As a result, RFRA should be dust in the wind as soon as a future congress--or the ACA Congress--passes a substantial burden that doesn't pass strict scrutiny.

Fourth, none of this has been argued in Hobby Lobby. It's easy to see why the federal government hasn't argued it; after all, the Solicitor General doesn't want to abandon RFRA just to save a portion of ACA. (One amicus has argued that RFRA is unconstitutional, albeit on other grounds). So what would happen if five Justices cared to take up the no-entrenchment-torch?