The Supreme Court's decision in City of Boerne v. Flores(1) that the Religious Freedom Restoration Act of 1993 (RFRA or the "Act")(2) is unconstitutional was not in itself particularly surprising.(3) Moreover, the Court's finding that Congress had exceeded its enforcement power under Section 5 of the Fourteenth Amendment ("Section 5")(4) is not unprecedented in modern times.(5) Nonetheless, in reaching this conclusion, the Court placed new limits on the scope of Congress's enforcement power and thereby reset the federal-state balance in the symbolically charged context of the Civil War Amendments. In so doing, the Court confirmed in unambiguous terms just how serious it is about protecting federalism.
The Court's analysis, however, is flawed in a way that renders the decision's importance and implications for federalism uncertain. The Court held that RFRA violated both separation-of-powers and federalism principles,(6) but it failed to keep the two distinct,(7) unwittingly skipping from one to the other and often conflating them. More critically, these two grounds of the decision are in serious tension with each other and cannot both stand: The Court's separation-of-powers argument prohibits what its federalism argument permits. This seemingly fatal problem is, however, entirely of the Court's own making. Even though, if anything, its separation-of-powers argument was the more central of the two grounds in driving the Court's analysis, it was, in reality, a red herring in the case. Accordingly, the Court's unnecessary and irrelevant defense of judicial supremacy--and its implications for the states--may justifiably be severed from the opinion and ignored.
Once this threshold problem with the Court's analysis has been identified and dissolved in Part I of this Essay, the task of assessing the significance of the case from the perspective of federalism can begin. From this vantage point, Flores does not simply affirm Employment Division v. Smith(8) but adds to it, and the aim of Parts II and III is to explore what may prove to be Flores's two major implications. First, if not explicitly, then at least by implication, the Court placed new limits on Congress's Section 5 power. In so doing, of course, it provided a revised answer to the important question of whether, and to what extent, this congressional power potentially subjects the states to additional limitations on their sovereignty beyond the constitutional prohibitions contained in Section 1.(9) Second, both the opinion in Flores and the one announced two days later in Printz v. United States,(10) in which the Court held that Congress cannot require state officials to administer federal statutes, contain grounds for thinking that the Court will perhaps interpret the scope of Congress's powers under the Necessary and Proper Clause(11) more restrictively than previously.(12) Since, from a federalism perspective, this clause undoubtedly represents one of the most important of Congress's enumerated powers, such a change could have significant implications for the states.
I. SEPARATION OF POWERS AND FEDERALISM
Justice Kennedy's opinion for the Court in Flores concluded that "[b]road as the power of Congress is under the Enforcement Clause of the Fourteenth Amendment, RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance."(13) Although the precise chain of reasoning linking the main body of the Court's analysis to this conclusion at the very end of its opinion is left largely unstated, it is not difficult to fill in the gaps.
According to the Court, RFRA violated separation-of-powers principles because it could not be understood as an attempt by Congress to enforce the Free Exercise Clause,(14) which is all that Section 5 authorizes, but only as an attempt to change the clause's meaning. By seeking through RFRA to overrule Smith and restore the prior interpretation of the clause,(15) Congress overstepped the constitutionally mandated boundary between legislative and judicial functions and challenged the Court's role as final interpreter of the Constitution's meaning: "The power to interpret the Constitution in a case or controversy remains in the Judiciary. …