RFRA Redux — 10th Amendment — Yes, The 10th — May Doom Federal Land Use Law

May 23, 2001

Nearly a decade ago, Congress passed the Religious Freedom Restoration Act (RFRA) requiring courts to apply a strict scrutiny test when reviewing the constitutionality of actions by state and local governments that imposed “substantial burdens” on religious exercise./1 Congress acted in an effort to reverse the effects of a decision by the U.S. Supreme Court that had eliminated the strict scrutiny standard in free exercise cases, which the Court previously had applied for many years./2

In City of Boerne v. Flores,/3 however, the Supreme Court ruled that, in enacting RFRA, Congress, which had relied on the Fourteenth Amendment to the U.S. Constitution as the basis for its power to enact the law, had exceeded its authority. Last Summer, unwilling to let the Court have the last word, Congress acted again. The result was the Religious Land Use and Institutionalized Persons Act of 2000 (RFRA II),/4 grounded in the Commerce Clause rather than the Fourteenth Amendment.

In RFRA II, Congress again attempted to require courts to use the judiciary’s rejected strict scrutiny standard in free exercise of religion cases. In particular, the law states that no local government may implement a land use regulation in a manner that imposes a substantial burden on religious exercise unless the government demonstrates that the imposition of the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. This is a heavy burden which is federally imposed on local governments throughout the nation.

Relying in large measure on the Supreme Court’s decisions in United States v. Morrison,/5 holding that the Violence Against Women Act was unconstitutional, and United States v. Lopez,/6 reaching the same conclusion with respect to the Gun-Free School Zones Act of 1990, it has previously been urged in this column/7 that RFRA II very well may have an unconstitutional basis, since it is grounded upon the Commerce Clause. Given the Court’s developing views on federalism, it also appears that RFRA II may be in violation of the Tenth Amendment.

Federalism’s Principles

The Tenth Amendment provides that “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The principles of federalism embodied in the Tenth Amendment impose significant limitations on the ability of Congress to enact legislation impinging on the balance of power between the states and the federal government. Serving the gatekeeper role limiting the extent of federal power, the Tenth Amendment, part of the original Bill of Rights, is not an impotent catch-all residuary clause or a yawning general statement of a truism. Rather, it is the barrier consciously built by the Founders of our nation between that which is national and that which is reserved to the states and the people. The division of powers between the states and the federal government is discussed at length by James Madison in FederalistNo. 45. The concepts discussed therein establish the intent of the framers of the Constitution to impose a real division of power between State and federal governments.

The Supreme Court has recognized that the principles of Federalism embodied in the Tenth Amendment impose functional and significant limitations on federal legislation — even if Congress otherwise possesses legislative authority over the subject matter.

For example, New York v. United States/8 involved the Low Level Radioactive Waste Policy Act, a federal law that required the states to either accept ownership of radioactive waste generated within their borders or regulate according to the instructions of Congress to provide for the disposal of all internally generated radioactive waste. The Court found these provisions to be unconstitutional on the ground that Congress had commandeered the State legislative process. Significantly, the Court held this to be “inconsistent with the Constitution’s division of authority” between federal and State governments, in violation of the Tenth Amendment, i.e., it is this Amendment that creates the wall of separation between permissible federal action and prohibited federal intrusion into that which is by its nature left to the states and/or the people. This is the essence of federalism.

The Court reached the same conclusion in Printz v. United States./9 There, the Court invalidated a provision of the Brady Act that required State and local officials to conduct background checks on prospective handgun purchasers. It, too, violated the Tenth Amendment, in the Court’s opinion.

Traditional State Regulation

Underlying the Court’s decisions in these cases, and its growing body of law on Federalism and the separation of powers, is the Court’s special solicitude for “areas of traditional state regulation,” which it has expressed as extending to state police powers generally, criminal law, family law and issues of marriage, divorce and child rearing./10 As the Court has emphasized, the Constitution requires a distinction between “what is truly national and what is truly local.”/11

The Morrison Court restated a warning that originally was set forth in National Labor Relations Board v. Jones & Laughlin Steel Corp./12 and was echoed in Lopez. In Morrison, the Court stated that “even [our] modern-era precedents which have expanded Congressional power under the Commerce Clause confirm that this power is subject to outer limits. In Jones & Laughlin Steel, the Court warned that the scope of the interstate commerce power ‘must be considered in light of our dual system of government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.'”

Although not expressly a Tenth Amendment case, the Court’s recent decision in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers/13 also is significant to this analysis. There, the Court held that the Army Corps of Engineers did not have the authority under Section 404 of the Clean Water Act that it thought it had. The Court emphasized that Congress “does not casually authorize administrative agencies to interpret a statute to push the limit of congressional authority,” and added that this concern was “heightened where the administrative interpretation alters the federal-state framework by permitting federal encroachment upon a traditional state power.”

The traditional state power the Court referred to in that case was the primary power over land and water use, and it cited to its 1995 decision in Hess v. Port Authority Trans Hudson Corporation/14 and its statement that “regulation of land use [is] a function traditionally performed by local governments.”

In other decisions over the years, such as Village of Belle Terre v. Boraas,/15 and its much earlier ruling in Berman v. Parker,/16 the Court has recognized the essential right of states to exercise their police powers in the zoning arena. Following that analysis, it would not be surprising if the Supreme Court were to find RFRA II unconstitutional, as an impermissible attempt at expanding Congressional power into an area of traditional state regulation.

Conclusion

In Lopez, the Supreme Court relied upon James Madison’s writing in Federalist No. 45 that “[t]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The battle over the proper division of authority between the federal government and the states has been waged since the founding of our country. It may very well be that we are on the verge of the Supreme Court’s declaring that the Tenth Amendment is a very real bar to direct Congressional action in the land use area.

NOTES: 1. 42 U.S.C. 2000bb et. seq.

2. Employment Div., Dep’t of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).

3. 521 U.S. 501 (1997).

4. 42 U.S.C. 2000cc et seq.

5. 529 U.S. 598 (2000).

6. 514 U.S. 549 (1995).

7. John M. Armentano, “Religious Land Use: Does New Federal Law Exceed the Commerce Clause’s Reach?,” N.Y.L.J., Sept. 27, 2000.

8. 505 U.S. 144 (1992).

9. 521 U.S. 898 (1997).

10. Morrison, supra.

11. Id.

12. 301 U.S. 1 (1937).

13. 2001 U.S. Lexis 640 (2001).

14. 513 U.S. 30 (1995).

15. 94 S.Ct. 1536 (1974).

16. 75 S.Ct. 98 (1954).

John M. Armentano, a partner with the Long Island law firm of Farrell Fritz, P.C., represents local governments and developers in zoning, land use, and environmental matters, including litigation.

Elaine R. Sammon, an associate at the firm, contributed to this column.

This article is reprinted with permission from the May 23, 2001 edition of the New York Law Journal.

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