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Monday, March 21, 2005

Cutter and Federalism

I was very pleased to see at the arguments today that the federalism/enumerated powers issues received such short schrift. I am, obviously, a fan of federalism, agree with Boerne, but I think the allusions to RFRA and federalsim are just smokescreens.

Section 5, the problem with RFRA, has nothing to do with this case. And the commerce clause only matters if they don't like the exercise of the spending clause. Doug Cole made a point during arguments that RLUIPA is problematic because the alternative commerce clause ground for the statute binds even states that haven't accepted the funding. But what does that have to do with anything? I don't see how Ohio can be allowed to raise claims of hypothetical states (if there are any such states) that haven't accepted funding, but must still adhere to the statute because of the commerce clause hook. I'm pretty sure that if the Court doesn't buy the spending clause arguments, then the commerce clause arguments are a complete wash.

Even Justice Scalia said during arguments "if you don't want to be bound, don't take the money!" Unless Justice Thomas, who was rocking back and forth in his chair staring at the ceiling, is ready to seriously curtail the spending power, then I think the federalism issue is going to get exactly zero votes. And I think this would require a serious curtailing. Here the federal government is saying "we'll give you money to run your prisons as long as you follow these rules with the money." How would we cut it back? It seems we'd have to say "we'll give you this money as long as you accomodate religion with the money." Now that may or may not be a good idea . . . but there's no way he's getting the Justices to go along with it.


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