Federal agencies regularly sail in murky constitutional waters. Established principles of statutory interpretation, however, leave federal courts adrift amid these dangerous shoals. When faced with agency interpretations that raise constitutional doubts, courts are torn. On the one hand, the famous rule of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. instructs courts to defer to an agency’s reasonable interpretation of its own statute. On the other, cutting against deference, the longstanding canon of constitutional avoidance counsels courts, when possible, to choose a statutory construction avoiding serious constitutional doubts. Although the Supreme Court eventually resolved this dilemma in favor of the avoidance canon, the Court’s rationale remains somewhat of a mystery. Commentators generally tell a story of policy. This Note offers an alternative textualist account rooted in historical practice.
Why the Religious Freedom Restoration Act Provides a Defense in Suits by Private Plaintiffs
In Employment Division v. Smith, the Supreme Court reversed course in its First Amendment doctrine, moving away from strict scrutiny protection for religious freedom and towards a more lenient standard akin to a rational basis test. Congress took action in response by enacting the Religious Freedom Restoration Act (RFRA) in 1993. In order to provide broad protections for the free exercise of religion and to provide a defense for religious beliefs against generally applicable laws, RFRA restored the pre-Smith compelling interest test. However, an ambiguity in the judicial relief section has given rise to a circuit split. Some circuits have found that RFRA does not provide a defense to religious individuals and organizations in suits brought by a private plaintiff. As a result, RFRA’s ability to provide broad religious protection has been significantly impaired. This paper resolves this circuit split, defending the conclusions in Hankins v. Lyght and finding that RFRA does provide a defense in private citizen suits. In Parts I – III, the paper applies a purely textualist analysis, closely examining RFRA’s text and its drafting history. It concludes that the judicial relief section unambiguously provides a defense in citizen suits. Part IV supplements this conclusion by excavating the legislative history surrounding the religious liberty bills – the 1993 RFRA and the proposed 1999 Religious Liberty Protection Act (RLPA.) The record is clear that Congress had a shared understanding RLPA would provide a defense in citizen suits. In discussing the merits of the bill, both proponents and opponents cited to cases with private plaintiffs and advanced policy considerations based on the assumption that RLPA would apply in citizen suits.
Prosecutorial Administration: Prosecutor Bias and the Department of Justice
It is by now well known that federal prosecutors hold the reins of power in individual federal criminal cases. They have almost unlim-ited and unreviewable power to select the charges that will be brought against defendants. Prosecutors have also been a driving force in the political arena for mandatory minimum sentences and new federal criminal laws.
But prosecutorial power over federal criminal justice policy goes deeper still. Because of the structure of the Department of Justice, prosecutors are involved in other areas of criminal justice policymak-ing. Indeed, we are living in a time of “prosecutorial administration,” with prosecutors at the helm of every major federal criminal justice matter.
This Article describes the current regime of “prosecutorial admin-istration” and explains why its consequences should concern anyone interested in a rational criminal justice regime that is unbiased in any particular direction. It focuses on three areas of criminal justice poli-cy corrections, clemency, and forensics—and describes how these matters came under the aegis of the Department without much con-cern about the conflicts they would create with the Department’s law enforcement mission. It is a well-established feature of institutional design that agencies with competing mandates will adhere to the dominant one. In the case of the Department of Justice, that dominant mandate is undoubtedly law enforcement and obtaining convictions in particular cases. As a result, whenever conflicts arise (or appear to arise) between this mission and other functions such as corrections, clemency, or forensic science, the law enforcement interests (as per-ceived by the Department’s prosecutors) will dominate.
Thus, if decisions about corrections, forensics, and clemency are be-ing made by prosecutors—and thus through the lens of what would be good for prosecutors and their cases—it is possible that these deci-sions are not accounting for what would be good policy overall, taking into account interests other than law enforcement. Indeed, even if the goal is law enforcement, prosecutors are not well-suited to take into account the long-term goals of law enforcement because they tend to focus on the short-term pressure of dealing with current cases and may develop cognitive biases that make it hard for them to see a broader perspective.
The Article thus turns to the question of how institutional design could help create a more balanced approach in the areas of correc-tions, forensics, and clemency that is not so tilted to law enforcement concerns. After making the case that institutional change is feasible in at least some areas, the Article tackles the question of what changes could yield positive results in each of these areas and what tradeoffs they entail.