Separation of Powers and Federalism in the Rehnquist Court

Congress’s decision to rest its authority to enact the Religious Freedom Restoration Act (RFRA) on section 5 of the Fourteenth Amendment meant that when the courts took up the law the central constitutional question would turn away from free exercise and toward separation of powers (specifically the separation between Congress and the courts) and federalism. Consequently, when City of Boerne v. Flores entered the federal courts, and the city’s attorneys decided to challenge the constitutionality of RFRA, it was the power of Congress to adopt the statute, not its substance, that moved to center stage. Whatever decision the Supreme Court made would, of course, have enormous implications for free exercise jurisprudence—whether or not henceforth the courts would have to apply the compelling interest test, giving the edge in free exercise cases to those wanting an exemption—but the legal arguments were now about separation of powers and federalism. Therefore, it is necessary to set the context for the case by pausing and briefly surveying where the Rehnquist Court’s jurisprudence stood in these areas.