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Religious liberty — which is the first right secured in the Bill of Rights — has won again in the nation’s highest court. In a unanimous decision this week (Holt v. Hobbs), the U.S. Supreme Court has held that an Arkansas state prison policy that prohibited inmates from growing beards violated an inmate’s religious liberties, since as a Muslim he believed his religion required him to grow a beard and that the policy therefore prevented him from the exercise of his religion.

The inmate, Gregory Holt, serves a life sentence for murdering his girlfriend by slitting her throat. He had proposed a compromise with prison officials that he be allowed to grow a 1/2-inch beard (prison policy allows inmates with skin conditions to grow 1/4-inch beards), which they had rejected

The decision allows Holt to grow the 1/2-inch beard.

It is yet another favorable decision for religious liberty in recent years from the Supreme Court. As Eric Rassbach of the Beckett Fund (via Eugene Volokh of the Washington Post) noted:

The Supreme Court has had quite a run of religious liberty cases in the last few years. Almost exactly three years ago the Court decided Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. Last year it ruled in Burwell v. Hobby Lobby and issued important orders in Little Sisters of the Poor v. Burwell and Wheaton College v. Burwell. And it has started off 2015 with Holt v. Hobbs. In every case, the Justices ruled in favor of the religious plaintiff. In three of the five cases, the Justices were unanimous, while in the other two (Hobby Lobby and Wheaton) there were vocal dissents.

A fault of the ‘typical process of government regulation’

Rassbach details several ramifications of Holt for future religious-liberty cases. He also asks, among other things, why the government continues to lose religious-liberty cases. Part of his answer is the shortcuts inherent government regulation. As Rassbach explains (emphasis added):

Another part of the answer lies in the typical process of government regulation. Governmental agencies, which do not answer directly to the public, simply aren’t inclined to compromise with small religious groups or religious individuals. Since there is little if any political price to pay, and members of minority religions are often without significant political power (as our Holt co-counsel Prof. Douglas Laycock has long argued), there is little incentive to compromise.

Put another way, government agencies will try to get away with as little accommodation as possible. In most areas of the law, government agencies can regulate on a because-I-say-so basis. But when federal civil rights statutes like RLUIPA and RFRA intervene, this approach fails and the government loses in court.

This complaint about the process of executive-branch rulemaking is not new to readers of this newsletter. As discussed in this space two years ago (emphasis added),

Regulations are rules made by state agencies and commissions, under authority delegated them by the legislature, for implementing or interpreting enacted legislation. Ideally, the legislature delegates part of its authority to the agency, which will be staffed by people expert in the particular subject area who will devise good rules to interpret the legislation faithfully. Regardless, their rules carry the full force of law, so those who fall under the regulations face fines and even jail time for violating them.

An ongoing concern from good-government advocates is that this great power is vested in bureaucrats who lack direct accountability to the voters. That is all well and good when they are merely formulating rules to comply with legislative or federal edicts. But what about when a proposed rule rises to the level of something that will have a major impact on citizens and business? Then we face the unhappy prospect of state law being crafted without the consent of the governed.

Granted, this newsletter was discussing regulatory reform in general, not with respect to religious freedom. Nevertheless, the same push forth in the absence of direct accountability that can result in agencies violating individual rights also can result in them outstripping the limits of their delegated lawmaking authority.

Note that the issue isn’t that the legislative branch has delegated some authority to the executive branch for the purpose of implementing enacted legislation. It is rather that the handover of legislative power goes too far.

To be clear, it is when either the legislative branch gives the executive agency too much power and discretion, or the executive agency takes more authority than is authorized for its own convenience in making rules.

The REINS solution to executive overreach

The latter problem is more distressing because, thanks to the deliberative process by which the legislature slowly acts, it often cannot block the agency’s overreach. A 2010 John Locke Foundation analysis found that only about one-tenth of one percent of rules proposed get blocked by the legislature.

A John Locke Foundation Spotlight report discussed the problem further and proposed a solution: a state-based REINS Act. The REINS approach (a labored acronym meaning "Regulations from the Executive In Need of Scrutiny") would use the deliberative process of the legislature properly when it comes to major rules. How?

It would require an affirming vote in the General Assembly before allowing to proceed any proposed rule that would have a major impact on the economy, cause significant cost or price increases for consumers, or bring about significant harm to competition, employment, productivity, or other healthy economic activities.

So if a proposed rule would be so significant as to run the risk of executive overreach into lawmaking, then under REINS it would need the proper lawmaking body — whose members are directly accountable to the voting public — to take action. Importantly, however, the legislature would not be obligated to act. But both chambers, House and Senate, would have to vote to allow the rule to proceed in the rulemaking process. Without a voluntary, affirming vote from the General Assembly (and direct or indirect approval of the governor), the rule could not proceed.

The General Assembly has made several important strides in recent years toward improving North Carolina’s regulatory structure. Peer-reviewed academic studies were more likely to find negative economic effects from state regulatory burdens than even from state tax burdens. They have also found a strong correlation between state economic freedom and state economic performance.

For reform-minded legislators who know this and who wish to chart a more prosperous course for North Carolina, the REINS approach beckons.

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