Commerce Clause Attacks Continue

A new attack on Congressional power under the Commerce Clause comes from the Central District in California.

The decision in Elsinore Christian Center v. City of Lake Elsinore, 2003 WL 22724539 (C.D. Cal. Aug. 21, 2003) applies Tenth Amendment concepts to Commerce Clause analysis.

The case involves a denial of a zoning permit to build a church. After the Supreme Court declared the Religious Freedom Restoration Act unconstitutional in City of Boerne v. Flores, 521 U.S. 507 ((1997), Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The general rule of RLUIPA relating to land use is that government shall not impose a land use regulation in a manner that imposes a substantial burden on religious exercise unless the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest. This rule applies in limited circumstances, including where the burden or removal of the burden would affect interstate commerce.

Fourteenth Amendment

The District Court first finds the denial of the permit violates the statutes, but then finds the statute unconstitutional. First it finds the statute goes beyond existing constitutional law under the First Amendment Freedom of Religion and Establishment Clauses. It then finds that the Act is not valid under the legislative authority in Section 5 of the 14th Amendment because it failed to meet the congruence and proportionality tests, which permits prophylactic legislation which goes beyond strict constitutional limits imposed on Congress. The court describes the statute as a blunderbuss remedy and concludes that [b]y vastly expanding the types of exercise protected by the most exacting standard of review, Congress has effectively redefined the First Amendment rights it is purporting to enforce.

Commerce Clause

Congress has the power, among others under the Commerce Clause, to regulate intrastate activities where the activity has a substantial effect on interstate commerce. Where this power is invoked, a statute s aggregate effect on commerce will be measured in determining substantial effect, even if the conduct at issue does not itself have a substantial effect. The court then assumes a real estate transaction like that involved in the case meets the substantial effect requirement. But the court then finds the Act goes beyond the authority of Congress.

No Supreme Court precedent stands, however, for the proposition that Congress may nakedly dictate the manner in which States regulate private conduct, citing 10th Amendment decisions. The court acknowledges that Congress may encourage a state to regulate in a particular manner by attaching conditions on the receipt of federal funds. Congress may also regulate private conduct directly and offer the states the opportunity to regulate that conduct in accordance with federal standards.

What Congress cannot do under the Commerce Clause is mandate the way states must regulate private conduct. The court also states that the distinction between States and municipalities in Eleventh Amendment jurisprudence is irrelevant to the federalism analysis. . . in this case, a municipality is synonymous with the state that creates it.