No RFRAF allowed: The status of the Religious Freedom Restoration Act's federal application in the wake of City of Boerne v. Flores

In 1993, Congress Enacted the Religious Freedom Restoration Act (RFRA). RFRA's purpose was to restore the compelling interest test-for adjudicating alleged violation of religious free exercise-that the Supreme Court had decisively abandoned three years earlier in Employment Division v. Smith. Less than four years later, the Court-in City of Boerne v. Flores-declared RFRA unconstitutional. Unfortunately, however the Court's opinion was ambiguous between invalidating RFRA in its entirety, and invalidating only its application to state law, (RFRASTA)-thereby leaving unscathed ifs application to federal law (RFRAF). The district and circuit courts have already begun to diverge on this point of interpretation, Many assume that Boerne invalidated RFRA in. ifs entirely, while others contend that it invalidated only RFRASTA. And several courts in this latter. category have gone on to uphold RFRAF's validity. This Note defines a third, intermediate position: Although Boerne, strictly speaking, leaves unanswered the question of RFRAF's constitutionality, if nonetheless provides important insights concerning this question. Drawing upon these clues, this Note argues that RFRAF is unconstitutional because it violates the separation of powers between Congress and the Judiciary, and, more importantly, because it attempts to circumvent the rigorous amendment process set out in Article V of the Constitution. More specifically RFRAF's incompatibility with Article V is attributable to its effectuation through a "wholesale" method of legislation; this enables it to functionally mimic-and thereby displace-the Free Exercise Clause as interpreted by the Supreme Court.