As the framers anticipated, these controversies are typically resolved between the Congress and the executive branch without involving the judiciary. Nevertheless, the courts have had occasion to fashion a standard, known as the Shoemaker doctrine, to govern this controversy. As with the approach to separation of powers generally, the Shoemaker doctrine is, in both formulation and application, extremely deferential to Congress. It requires only that the new duties be germane to the office's pre-existing duties. In a recent decision, the Supreme Court held that any commissioned military officer could be detailed to act as a military judge without a formal constitutional appointment because the duties of a military judge are sufficiently germane to the duties of any commissioned officer of the armed forces.25 A comparison of the duties of a Second Lieutenant on a naval supply ship, for example, with the duties of a military judge demonstrates just how deferential the Court's application of the germaneness requirement can be.

B. Deference in Boerne

Last term, the case of Boerne v. Flores 26 presented the question of how to address this controversy when legislation is attacked as an exercise of the judicial power, rather than the executive power. Specifically, the Court was asked to determine whether the Religious Freedom Restoration Act ("RFRA") was a valid exercise of Congress's broad authority under Section 5 of the Fourteenth Amendment, or instead represented congressional exercise of the judicial power.27 Consistent with the Court's approach to separation of powers generally, as discussed above, and in recognition of the important constitutional values supporting that approach, the Court should have employed a deferential standard similar to the Shoemaker germaneness requirement and have applied that standard with slightly greater scrutiny, which is to say with slightly less deference, than the Court accords in the Shoemaker context. In fact, this is precisely what the Court purported to do.

In formulating the governing standard, the Court virtually paraphrased the Shoemaker germaneness requirement. It held that “[t]here must be a congruence and proportionality between" Congress's enumerated power and the "means adopted to that end." 28 In the same breath, the Court expressed its considerable deference for Congress's judgment, "the line between measures that" are within and without Congress's authority "is not easy to discern, and Congress must have wide latitude in determining where it lies. ." 29 Despite the articulated standard and expressed intention to accord substantial deference to Congress's constitutional judgment that the enactment of RFRA was within its enumerated powers, the Court ruled the Act unconstitutional on the ground that RFRA was not within Congress's authority under Section 5 of the Fourteenth Amendment.

Congress had compiled an impressive and extensive legislative record detailing the injuries that it sought to remedy through RFRA and the need for legislation to remedy those injuries.30 I believe that the Court articulated an appropriately deferential standard by which to review whether RFRA was within Congress's enumerated power to enact but that, in light of the extensive legislative findings and conclusions, the Court was insufficiently deferential in applying that standard to Congress's constitutional judgment that RFRA was within its authority. Why, then, was the Court insufficiently deferential to Congress's determination? Part of the blame obviously rests with the Court. The Court failed to locate its analysis within the broader separation of powers context or even within the more specific context of cases, like Shoemaker and Weiss, that examine whether Congress has actually exercised the power of another branch or has remained within its enumerated powers. Had it explored this context, it would have found further support for the "con

these entities and replaced them with the Office of Thrift Supervision and the Savings Association Insurance Fund. OTS differed from FHLBB primarily in that it would be headed by an individual director, rather than a three-member board. FIRREA provided that the chairman of the board of the FHLBB would serve as the initial director of OTS. See Olympic Fed. Sav. & Loan v. Director, Office of Thrift Supervision, 732 F. Supp. 1183 (D.D.C. 1990). 25 Weiss v. United States, 114 S. Ct. 752 (1994).

26 117 S. Ct. 2157 (1997).

27 I do not mean to suggest that this determination turns on Congress's motive. In the Shoemaker context, for example, Congress may not add extraneous duties to an office, regardless of its motive for doing so. Compare Weiss, 114 S. Ct. at 759 (suggesting that where the legislation adds the new duties not to a specific office but to a large class of offices, germaneness may be required only if there is evidence that the legislation is motivated by a congressional attempt to exercise the appointment power). It is, in that sense, an objective standard. If Congress adds non-germane duties to an existing office, it has exercised the appointment power, whether it subjectively meant to or not.

28 Id. at 2164.

29 Id.

30 See, for example, the extensive history cited by Boerne itself. Id. at 2169.

gruence and proportionality" standard it articulated, but would also have garnered concrete guidance on how to apply that standard.31 This would have indicated using Shoemaker and Weiss as a baseline against which to assess the level of deference due Congress's findings and conclusion, and should have alerted the Court that the level reflected in its decision was inadequate.

Nevertheless, Congress has the means to provide the Court a basis for appropriate deference to Congress's constitutional judgments. The Constitution embodies the fundamental judgment that the federal government is a limited government of expressly enumerated powers. Although the line between actions that fall within these powers and outside of them is not always clear, the line "exists and must be observed." 32 The Court takes very seriously its role in ensuring that Congress does not either itself take action or authorize other federal action that is beyond these enumerated powers, and may in fact view this as its most important function.33 One might ask why the Court should require Congress to make such findings expressly. Surely Congress's judgment that a given piece of legislation is within its constitutional power to enact is implicit in its enactment. In the vast majority of cases, the Court accepts Congress's implicit judgment. Where it is clear to the Court that the enactment is within Congress's authority, it requires no express corroboration. It is where the Court cannot perceive how the enactment respects the constitutional limits on Congress's authority that it looks to Congress for an explanation in the form of findings and a legislative record. First, this exercise ensures that Congress recognizes the same limits on its power that the Court perceives and that Congress has drawn its legislation to conform to those limits. Second, there is reason to doubt that Congress considers the constitutionality of each provision of each piece of legislation it enacts and therefore to question whether enactment carries an implicit congressional determination of constitutionality. For example, Congress has enacted hundreds of legislative vetoes since the Supreme Court ruled them unconstitutional in INS v. Chadha.34 There is no indication that Congress pauses to consider the constitutionality of these provisions before enacting them. It is understandable, therefore, that the Court may have some doubt as to whether Congress actually considers the constitutionality of each provision it enacts. If Congress has not, to what is the Court to defer?

In Boerne the Court examined the legislative record for evidence that Congress recognized the extent and limits on its Section 5 power and had drafted RFRA with those limits in mind. The Court noted that the record lacked evidence of "animus or hostility to the burdened religious practices" and was not directed to the issue of the intent underlying generally applicable state laws and local ordinances. More important, the legislative record did not attempt, in the view of the Court, to demonstrate a congruence and proportion between the operative provisions of RFRA and the Congress's power under Section 5 to remedy or prevent violations of individual constitutional rights. In this connection, the Court emphasized RFRA's "universal coverage" and, at least by implication, the legislative record's failure to consider whether a different standard might be appropriate in different contexts, such as prison management as opposed to state employment as opposed to zoning regulation.35 Finally, the legislative record included significant indication that RFRA was in fact designed to exercise the judicial power by overruling the Supreme Court's

31 An analogy may be illuminating. Merely articulating the strict scrutiny standard, which requires that legislative means be narrowly tailored to a compelling governmental interest, does not fully capture strictness with which that standard is applied. This can be seen most clearly by examining the practical application of the standard in the Court's precedents. Similarly, a full appreciation for the deference due Congress is most clearly seen from the deference actually accorded in separation of powers cases involving the judiciary, such as Schor, as compared with those involving the executive, such as Morrison, as well as those involving concern that Congress has exercised the power of another branch, such as Shoemaker and Weiss.

32 Boerne, 117 S. Ct. at 2164.

33 See id. at 2162 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)); see also United States v. Lopez, 115 S. Ct. 1624 (1995).

34 462 U.S. 919 (1983). See Louis Fisher, The Legislative Veto: Invalidated It Survives, 56 L. & CONTEMP. PROBS. 273, 288 (1993).

35 117 S. Ct. at 2162.

decision in Oregon v. Smith.36 It is, at least conceivably, within Congress's ability to remedy each of these shortcomings in the legislative record. 37

A second case is instructive, United States v. Lopez. This case raised the question whether Congress had acted within the scope of its power under the Commerce Clause.38 Congress had enacted a statute making it a federal offense to possess a gun in a school zone. The question presented was, in shorthand, whether the possession of a gun in a school zone is an "activity. . . that substantially affect[s] interstate commerce." There, the Court did not perceive the substantial effect and so looked for legislative findings in order that it might defer to Congress, but found them lacking.39

This review of Boerne and Lopez yields two observations. First, where it is unclear whether Congress has acted within the scope of one of its enumerated powers, the Court will be deferential to Congress's judgment that it has acted within that power, but the extent of the deference will be greater-and perhaps determinatively sowhere Congress has made findings that indicate Congress is aware of the nature and limits of the enumerated power it is exercising and has drafted its legislation in recognition of and conformance to those limits.40 Put another way, the courts will defer to Congress's interpretation of its own constitutional authority, such as under the Commerce Clause or Section 5 of the Fourteenth Amendment, when there is an interpretation to defer to. Second, where there is concern that Congress has actually exercised the power of another branch, the legislative history should specifically address this concern and explain how Congress has sought to avoid stepping beyond the legislative sphere and has indulged interbranch comity with respect to the executive or judiciary, as the case may be.

II. CONGRESS'S INDEPENDENT ROLE IN INTERPRETING THE CONSTITUTION While Boerne demonstrates that the Court will extend broad deference to Congress's constitutional judgment, reflected in a well-developed legislative record, that it has drafted legislation that remains within the boundaries of enumerated congressional authority, Boerne also indicates that the Court will not defer to Congress's determination on the logically prior question: precisely where those boundaries are drawn. Nevertheless, there are important benefits to be derived from Congress expressing, including as the declared basis for legislation, its own constitutional interpretation. First, where Congress adheres to a constitutional interpretation that is at odds with the Court's precedents and legislates on that basis, it gives the Court an opportunity to reconsider and overrule its precedents. Once again, Boerne is instructive. Each of the three dissenting justices urged the Court to use RFRA as an occasion to revisit and overrule its decision in Smith.41 A less dramatic consequence than overruling a precedent or line of precedents, Congress's adherence to its own constitutional interpretation may give the Court an opportunity to develop its doctrine within the confines of existing precedent or to consider constitu

36 494 U.S. 872 (1990). The Boerne Court began its analysis by observing that "Congress enacted RFRA in direct response to the Court's decision in ... Smith." 117 S. Ct. at 2160. The findings and purposes set forth in RFRA support the Court's view. These findings include statements that may be taken to assert the meaning of religious liberty protected under the first amendment, criticize Smith, and articulate a different constitutional standard for assessing First Amendment claims than the Court had fashioned in Smith. See 42 U.S.C. § 2000bb(a) & (b). The Court appears to have adopted this understanding of RFRA. 117 S. Ct. at 2161 (“Many (members of Congress] criticized the Court's reasoning [in Smith], and this disagreement resulted in the passage of RFRA.").

37 I do not mean to say Congress can necessarily, or easily, satisfy the Court. The legislative record that Congress compiled to support enactment of RFRA included an understandable deficiency; it did not recognize that Congress's authority under Section 5 of the Fourteenth Amendment was limited to remedial and preventive action. This deficiency is understandable because, until the Court decided Boerne, the Court had not articulated that limitation. It is now possible for Congress torevisit the question of how to remedy and prevent religious discrimination with these limitations in mind and to draft a bill supported by a legislative record that reflects Congress's constitutional judgment that the measure will remedy and prevent religious discrimination in ways that are proportional to and congruent with the limitations of Congress's authority under Section 5. The Boerne opinion demonstrates that the Court will regard such the constitutional judgment contained in such a legislative record with great deference. 38 U.S. Const. Art. I, §8, cl. 3.

39 See 115 S. Ct. at 1632. But see id. at 1659-61 (Breyer, J., dissenting).

40 See Philip P. Frickey, The Fool on the Hill: Congressional Findings, Constitutional Adjudication, and United States v. Lopez, 46 CASE W. RES. L. REV. 695 (1996) (reviewing the benefits of requiring legislative findings to determine whether Congress acted within its Commerce Clause power).

41 See Boerne, 117 S. Ct. at 2176 (O'Connor, J., dissenting); id. at 2185-86 (Souter, J., dissenting) (expressing desire to reconsider Smith and articulating grave doubts about its its "precedential value and its entitlement to adherence").

tional theories that had not previously been argued. Thus, when Congress exercises its independent constitutional judgment, it can actually support and promote Court's ability to perform its "duty. . to say what the law is" 42 in a way that slavish adherence to precedent does not.43

Mr. CANADY. Thank you. Professor Strossen.

STATEMENT OF NADINE STROSSEN, PRESIDENT, AMERICAN CIVIL LIBERTIES UNION

Ms. STROSSEN. Thank you very much, Chairman Hyde, Chairman Canady, Representative Scott, and other distinguished members of the committee and distinguished members of the panel. It's really a pleasure, I have to say, to be here, as well as an honor. Chairman Canady introduced me as the president of the American Civil Liberties Union. That is my volunteer position. I also want to state on the record that I earn my living as a law professor. I teach constitutional law. Chairman Čanady said to me when we spoke before these proceedings began that this would be like a seminar, and I have to agree; it certainly is an intellectual feast, to quote that notorious judicial activist, Antonin Scalia. [Laughter.] But, of course, there are also enormous consequences in terms of individual rights for these discussions that we're holding, and I'd like to zero in on that issue wearing my ACLU hat. It seems to me and I'm delighted-that every person who has testified so far, including the Members of Congress as well as the academic experts, have agreed that Congress has not only the right, but also the responsibility to reach its own independent judgments as to the constitutionality of particular measures.

I'm so happy that there is agreement and, apparently, enthusiasm about pursuing that role more vigorously, because I have to agree with Congressman Frank, when he said that too often his colleagues are not sufficiently concerned about constitutional issues. Too often we're in the position of trying to persuade Members of Congress to vote against something on the ground that it's unconstitutional, and we are told that that is not something that they feel it is appropriate for them to take into account. So, to the extent that there is a consensus that we should redouble our commitment in all branches of Government to enforce the Constitution, I think that's wonderful.

Now, where I see some possible breakdown in the unanimity goes to the second point I would like to address and that is what law professors and judges often call the one-way ratchet of interpreting constitutional rights or individual freedom independently of the courts. And the notion there is that, yes, Congress does have-and for that matter the executive branch of Government also has-independent power and authority to interpret the Constitution regarding individual rights, but only insofar as rights are more securely protected or there is a more expansive vision of individual liberty that results from that reinterpretation.

42 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

43I do not mean to endorse contumacious adherence to rejected interpretations. Such resistance can significantly undermine the ability of the judiciary to fulfill its constitutional role. The possibility of such a course of action does not alone eliminate the benefits that may follow on a responsible adherence to a constitutional interpretation in conflict with Supreme Court precedent. As is often the case, this is a question of balance.

Congress does not, under this theory, have the power to reject a Supreme Court decision that says, for example, a certain law violates the First Amendment, and go ahead and re-pass that law (although obviously, the Congress has the power to pass a constitutional amendment). One way that I like to summarize this for my constitutional law students is that the Supreme Court can put a floor under our constitutional rights, but it cannot impose a ceiling over them.

Conversely, though, that would mean that Congress could not sink beneath that floor that the Supreme Court has articulated. I wasn't sure whether Congressman Hostettler would agree with that one-way ratchet theory. I got a little uncomfortable when I heard him criticizing a decision of a Federal court that a certain law that had been passed by Congress violated the First Amendment. I don't think it would be within Congress's prerogative_to second guess such a judicial interpretation if it were from the Supreme Court, and the example that he referred to was not from the Supreme Court, so perhaps I have no need to be concerned on that

score.

The other possible breakdown in the unanimity here on this oneway ratchet theory of expanding individual rights is, of course, the Supreme Court's decision in the Boerne case, and I was happy to hear my distinguished colleagues on this panel agree that that decision is quite questionable.

As Congressman Hyde knows, I had the pleasure of testifying in favor of the Religious Freedom Restoration Act, both in the House and in the Senate. The ACLU spearheaded the coalition, called the Coalition for the Free Exercise of Religion, that lobbied very strongly for RFRA and argued for it in the Supreme Court, and, coincidentally, even as we are meeting here this morning, that coalition is still engaging in discussions about what's next, what steps can be taken, either by Congress or in other branches of Government, to secure the expanded vision of religious liberty that RFRA embodies, and that the Supreme Court rejected.

Now, I do agree though with colleagues who have said that the RFRA decision, the Boerne decision, does still leave some openings, and I think that's important. I didn't hear the Supreme Court there to be completely rejecting this one-way ratchet of constitutional law.

May I please beg the Chair's indulgence to continue?

Mr. CANADY. Please continue.

Ms. STROSSEN. I'll try to be very brief. So I agree that Congress has the power to expand constitutional rights. I am concerned, though, about a possible subtext when courts expansively interpret constitutional rights beyond what Members of Congress are willing to support, at least publicly. I'm going to give you an example.

When the ACLU lobbied against the Communications Decency Act, we were told by a number of Members of Congress that they understood that it was unconstitutional, or probably unconstitutional, but they didn't want to risk the ire of their constituency by voting against something that could result in their being labeled soft on porn or soft on crime. And, when the Supreme Court agreed with us and struck down that law, essentially unanimously, in a case that I'm happy is called Reno v. ACLU, a number of Members