How powerful is the purse?

The decision in June by the U.S. Supreme Court in Landor v. Louisiana Department of Corrections lies at the intersection of two key features of the Constitution: the protection of individual rights and the Constitution’s structural design. The decision is important but not for the reasons that are easy to put in a headline. Some headlines suggest that the case is a blow for religious liberty or for prisoners’ rights. Both are involved, to be sure. But grappling with the structural provisions of the Constitution is necessary to properly evaluate the case. Viewed in that light, this case is on stronger ground in its structural constitutional holding. And in the background is a constitutional mistake made by the Court several decades ago—a decision that, if corrected, could simplify the path to religious liberty protections.

At the law school where I teach, as at many law schools, we divide the study of constitutional law into two courses. One focuses on constitutional structure—separation of powers, the relationship between state and federal authority. The other course focuses on individual rights, such as the guarantees of due process and equal protection and First Amendment freedoms such as free speech and free exercise of religion. These constitutional subjects do not exist in isolation. They interact, and the Supreme Court’s recent decision is all about that interaction.

The case arose from a claim of religious liberty in prisons. Damon Landor is a Rastafarian and his religious beliefs do not permit him to cut his hair. When he was sent to prison in Louisiana, he knew that prison policy required inmates to have their hair cut. To prepare for that encounter, he brought with him a printout of a federal court decision holding that a federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), generally prohibits prisons from cutting prisoners’ hair. The prison officers paid no heed. When Mr. Landor attempted to show them the court decision, they threw it away and proceeded to shave his head.

This appeared to violate the federal law, RLUIPA. But the Supreme Court majority ruled against Mr. Landor. RLUIPA applies to the state of Louisiana, but it did not provide Mr. Landor with a damages remedy against the individual prison guards who cut his hair. The distinction sounds technical. But the issue is actually a central one in the Constitution—a question of structure and federal power.

RLUIPA was enacted pursuant to Congress’s spending power. The Constitution gives Congress the power to spend money, and over time Congress has used that power not only to appropriate federal funds but also to attach conditions to their receipt. In this way, Congress has extended its regulatory reach beyond what it could accomplish through its other enumerated powers.

RLUIPA illustrates how it’s done. Congress uses federal funding as a kind of carrot. It tells the states: If you wish to receive federal funds to support your prison system, you must comply with these federal requirements. Congress can do this because it’s not directly regulating the states but is instead offering a bargain. The states receive federal money in exchange for agreeing to abide by rules that otherwise would not apply to them.

In Landor, Louisiana accepted the bargain: It took federal money and, as a condition of taking the money, it was obligated to comply with RLUIPA’s requirements. Had Landor sought an injunction requiring the state to honor the obligations it assumed by accepting federal funds, the statute plainly authorized that type of relief.

The Court concluded, however, that imposing personal damages liability on individual prison guards was a different matter. The guards themselves had not entered into a bargain with Congress. They had not accepted federal funds in exchange for assuming personal obligations under RLUIPA. Because spending legislation operates like a contract between Congress and the funding recipient, the Court concluded that the statute did not impose damages liability on individual state employees.

For citizens concerned about religious liberty, this decision may be disappointing, even troubling. It makes the rights secured by RLUIPA more difficult to enforce in some circumstances.

At the same time, for citizens who also care about preserving the Constitution's structural safeguards—safeguards that the framers regarded as essential protections for liberty—the decision serves an important function. Its most important legacy will likely be in limiting Congress’s ability to use federal spending as a means of extending federal regulatory authority.

But just outside the frame of this case is another important piece of the picture, which explains why RLUIPA has to rely upon the Spending Clause in the first place. The answer lies in a constitutional mistake that the Supreme Court made nearly 30 years ago.

In 1997, the Supreme Court held in City of Boerne v. Flores that Congress had gone too far in enacting the Religious Freedom Restoration Act, which was a response by lawmakers to the Court’s narrowing of the Free Exercise Clause in 1990. The Court said RFRA exceeded Congress’s authority to enforce constitutional rights against the states. (RFRA is still good law as applied to the federal government.)

There is good reason to think that Boerne was wrongly decided. Section 5 of the 14th Amendment expressly gives Congress the power to enforce the Amendment’s guarantees. In Boerne, the Court interpreted Congress’s Section 5 enforcement power too narrowly and, in doing so, unnecessarily restricted the ability of Congress to protect religious liberty.

The Court’s Boerne decision is the reason Congress turned to the Spending Clause when it later enacted RLUIPA. Congress could not rely on its 14th Amendment enforcement authority, so it needed another constitutional source of power. The Spending Clause provided one. By conditioning federal prison funding on compliance with religious liberty protections, Congress was able to accomplish indirectly some of what it could not accomplish directly.

That is why, last week, the Court had to navigate the complexities of Spending Clause doctrine. If the Court were someday to reconsider City of Boerne, Congress might once again be able to rely on its 14th Amendment enforcement authority to protect religious exercise. If that happened, it would not be necessary to rely on the more tangled doctrines surrounding conditional federal spending. As is now clear, huge issues, including religious liberty rights, are at stake.