| While Damon Landor was serving a six-month sentence for a drug offense in a Louisiana correctional facility, officers there shaved his head, even though Landor is a Rastafarian whose religious beliefs require him to leave his hair uncut and even though Landor clearly informed the officers of that fact. Indeed, Landor even presented the officers with a copy of a judicial opinion from the U.S. Court of Appeals for the Fifth Circuit holding that the federal Religious Land Use and Institutionalized Persons Act (RLUIPA) forbids prisons from cutting Rastafarians’ hair. They responded by throwing the opinion in the trash and shaving Landor’s head anyway. He later sued them for this blatant RLUIPA violation. | | Yesterday, the Supreme Court ruled 6-3 that Landor could not maintain his lawsuit. According to the opinion of Justice Neil Gorsuch for the conservative super-majority, RLUIPA authorizes lawsuits against state prisons that receive federal funds but not against individual officers. As a statute enacted pursuant to Congress’s power to spend money, the Court explained, RLUIPA should be understood as contractual in nature. When Louisiana took the federal government’s money, it agreed to the conditions in the contract, including RLUIPA, but the individual prison officials are not parties to the contract and thus are not bound by it. | | That might sound straightforward, but it is dubious in at least three ways. First, as Justice Ketanji Brown Jackson argued in a dissent joined by Justices Sonia Sotomayor and Elena Kagan, the prison officials are obligated to comply with RLUIPA and even can be enjoined by a court to do so. To be sure, when a state has sovereign immunity, the possibility of injunctive relief against officials does not entail the availability of a damages suit against the state itself. However, the individual officials lack such immunity. Given the officials’ obligation to comply with RLUIPA, it is, as Justice Jackson put it, a “peculiar position that Congress is powerless to create, and a State is powerless to accept, the natural next step: a damages remedy against officials who violate” a prisoner’s RLUIPA rights they are duty-bound to respect. | | Second, in reaching a holding based on the limits of Congress’s power under the Spending Clause, the Court decided the case as a matter of constitutional law. It did so even though Louisiana had urged the justices to rule on the narrower ground of statutory construction. Deliberately bypassing the statutory construction question, the Court turned the principle of constitutional avoidance—whereby the courts resolve constitutional issues only as a last resort—on its head. | | That is not to say that the statutory argument against officials’ personal liability was very good. RLUIPA authorizes courts to provide “appropriate relief” to persons whose rights are violated. As Landor’s brief and the dissent explained, that language is identical to the language in another statute that Congress enacted to serve the same purpose as RLUIPA, the Religious Freedom Restoration Act (RFRA). In the 2020 case of Tanzin v. Tanvir, in an opinion by Justice Clarence Thomas, a unanimous Supreme Court concluded that RFRA’s “appropriate relief” includes damages against individual officers. Thus, one would think that the same language in what Justice Jackson called a “sister statute” should be interpreted the same way. | | The best that might be said for the Landor majority is that perhaps its members recognized the weakness of the state’s statutory argument. Constitutional avoidance was not a viable option, the majority may have concluded, because there was no plausible way to construe RLUIPA’s text to preclude damages actions against individual officers. Put differently, the majority might have skipped over the statutory issue to reach the constitutional issue because it correctly ascertained that Landor would win on statutory interpretation alone. | | But that brings us to the third problem with the majority opinion in Landor: it rests on a faulty premise. The proposition that only parties to a contract are bound by that contract is fair enough. Thus, if the only basis for subjecting prison personnel to federal regulation were a contract to which they are not parties, the Court would be correct that individual liability under RLUIPA would be precluded. However, as the Landor dissenters pointed out, RLUIPA and other Spending Clause legislation might be analogized to a contract, but that doesn’t mean it is a contract. It is a law. | | Moreover, even if one were to concede that Congress cannot impose liability on individual officers pursuant to expenditures to their state employers, that might not be sufficient to invalidate officer liability because the Spending Clause is not the only power of Congress that could be used to justify RLUIPA. Alternatively, RLUIPA seems to fit within Congress’s power to regulate interstate commerce. | | Indeed, RLUIPA itself says so expressly. It applies to substantial burdens on religious exercise “in a program or activity that receives Federal financial assistance” or when “the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes.” Rehnquist and Roberts Court precedents say that a law regulates interstate commerce when it regulates economic activity that, when aggregated with like activity, substantially affects interstate commerce. Is shaving the head of a prisoner such an activity? Arguably yes. Giving haircuts is apparently part of the job of the intake officers at the Louisiana correctional facility, and the facility itself certainly affects interstate commerce through its purchases, its employment practices, and by preventing those detained therein from participating in the broader economy. | | To be sure, even the Landor dissent did not rely on the provision of RLUIPA that invokes the Commerce Clause. The dissent said it would be a “rare RLUIPA plaintiff who finds a Commerce Clause hook” to support individual officer damages, citing a footnote in a Second Circuit case that asserted that the effect on interstate commerce must arise out of the burden on religion itself, rather than from incarceration. But even taking that narrow focus, Landor should qualify, because haircuts are economic activity and they affect interstate commerce. For example, without his hair, Landor had no need to purchase shampoo or gels to maintain dreadlocks. | | Why did neither the majority nor the dissent address the Commerce Clause as a basis for RLUIPA in Landor? The simplest explanation may be that Landor’s attorneys did not raise the issue. They litigated the case solely on the basis of the Spending Clause. If that is the best account of the case, then it might have limited impact. Future litigants could create a record that preserves the Commerce Clause as the foundation of a RLUIPA claim. | | That approach could be valuable beyond RLUIPA, even for statutes that do not expressly invoke any congressional powers other than the Spending Clause. After all, “[t]he question of the constitutionality of action taken by Congress does not depend on recitals of the power which it undertakes to exercise.” Those aren’t my words. That was what the Supreme Court stated in the 1948 case of Woods v. Cloyd W. Miller Co. | | The principle has been given effect in important decisions. For example, in the 1918 Selective Draft Law Cases, the Court sustained the draft pursuant to Congress’s power “to raise and support armies,” notwithstanding the argument that a draft was not among the powers given to Congress regarding the militia. | | More recently, in 2012 in NFIB v. Sebelius, Chief Justice John Roberts cast the decisive vote to uphold the so-called individual mandate of Obamacare. He first concluded that the mandate was beyond the scope of the Commerce Clause but nonetheless sustained it on the ground that it fell within Congress’s Taxing Clause power, notwithstanding the fact that Congress did not call the obligation a tax. | | Accordingly, in future cases, litigants invoking statutes that appear to rest congressional power only on the Spending Clause should be alert to the possibility of pointing to the Commerce Clause as an alternative. In past cases and in the majority opinion in Landor itself, the Court has fretted that a too-expansive understanding of the Spending Clause would allow Congress to circumvent the limits the Court has found in the scope of the Commerce Clause. It would be sadly ironic if the Court were now to hold that laws that fit within those previously prescribed Commerce Clause limits are invalid simply because Congress also sought to ground legislation on the power granted it under the Spending Clause. |
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