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RFRA Still Applies to Federal Government
The Religious Freedom Restoration Act remains applicable to federal
entities notwithstanding the decision in City of Boerne that its
application to states exceeded Congress's remedial authority under section
5 of the Fourteenth Amendment. At 1219: "Of course, Congress uses its
enumerated powers in Article I, not its Fourteenth Amendment enforcement
authority, when it regulates for the federal sphere." The separation of
powers concerns of Boerne are inapplicable when Congress is prescribing
rules in an area where Article I gives it plenary power; there, it is not
purporting to interpret the Constitution, as it implicitly does when it
legislates under section 5 of the Fourteenth Amendment, and as Bivens held
impermissible. See: Guam v. Guerrero, 290 F.3d 1210 (9th Cir. 2002).
entities notwithstanding the decision in City of Boerne that its
application to states exceeded Congress's remedial authority under section
5 of the Fourteenth Amendment. At 1219: "Of course, Congress uses its
enumerated powers in Article I, not its Fourteenth Amendment enforcement
authority, when it regulates for the federal sphere." The separation of
powers concerns of Boerne are inapplicable when Congress is prescribing
rules in an area where Article I gives it plenary power; there, it is not
purporting to interpret the Constitution, as it implicitly does when it
legislates under section 5 of the Fourteenth Amendment, and as Bivens held
impermissible. See: Guam v. Guerrero, 290 F.3d 1210 (9th Cir. 2002).
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