ISSUES ALERT

a division of Home School Legal Defense Association	September 23, 1999

Oppose The Commerce Clause Provision Of The RLPA

The Religious Liberty Protection Act (RLPA) is a well-intentioned attempt to undo the damage to our religious freedom caused by the U.S. Supreme Court decision of City of Boerne v. Flores, (1997).

However, home schoolers, who have proven themselves champions of religious freedom in their fight to win the right to home school, oppose the RLPA. The RLPA is pursuing the right goal using the wrong vehicle: the Commerce Clause. Below are three reasons we oppose the Commerce Clause provision of the RLPA.

• It is unlikely to provide victory in any religious freedom cases. Under the Supreme Court’s precedents, although Congress may be able to use the Commerce Clause to regulate state and local governments as employers (along with other employers), any attempt to use the Commerce Clause to regulate the sovereign functions of state government is unconstitutional. See New York v. United States, 505 U.S. 144 (1992); Printz v. United States, 521 U.S. 898 (1997); Condon v. Reno, 155 F.3d 453 (4th Cir. 1998), cert. granted, 1999 U.S. Lexis 3200 (May 17, 1999).


• For supporters of our framers’ concept of limited government, to vote for the RLPA’s expansive commerce power is hypocrisy. The Commerce Clause has been, since the New Deal, the primary tool for increasing big government intrusion in to the lives of private citizens. When liberals try to bring more and more of life under federal regulatory authority because of alleged “impact on interstate commerce,” conservatives stand in firm opposition. Conservatives cannot grab the same expansive federal power simply because we like the underlying issue (in this case, religious freedom).


• It will open the door to national regulation of religious families, churches and home schools. The intent of the RLPA is benign—it seeks to protect religious people and institutions from interference from local government. But by using the commerce provision to protect religion, a church, ministry or home school would have to prove in court that its activities, or the regulation of its activities, touches on interstate commerce in some way. Once the power of Congress to regulate these entities has been established, any regulation is possible in the future. There are no substantive limits on the commerce power.

Reprint permission granted. Prepared by the legal staff of the National Center for Home Education.

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