IV. RLUIPA Is Consistent with Congress's Enumerated Powers Under the Commerce Clause
The Supreme Court clarified the factors courts should consider when assessing whether congressional legislation represents "regulation of an activity that substantially affects interstate commerce": (1) whether the statute contains an express jurisdictional element that would ensure, through case-by-case inquiry, that the [regulated activity] in question affects interstate commerce; (2) whether the statute regulates "economic activity"; (3) whether "the link between [the regulated activity] and a substantial effect on interstate commerce was attenuated"; and (4) whether the statute's "legislative history contain[s] express congressional findings regarding the effects upon interstate commerce."92 Commerce Clause legislation is entitled to the same judicial deference and strong presumption of constitutionality as other acts of Congress.93 The application of RLUIPA under subsection 2(a)(2)(b) does not overstep the limits of Congress's power under the Commerce Clause.94
a. RLUIPA Contains an "Express Jurisdictional Element"
First and foremost, in contrast to the laws at issue in Lopez and Morrison, section 2(a) of RLUIPA is supported by an "express jurisdictional element which might limit its reach to a discrete set of [burdens on land use] that additionally have an explicit connection with or effect on interstate commerce."95 As a matter of law, the presence of this provision ensures the facial constitutionality of the statute under the Commerce Clause: by its own terms, the statute applies only to conduct affecting "commerce with foreign nations, among the several States, or with Indian tribes."96
The jurisdictional element also precludes as-applied challenges under the Commerce Clause. If the conduct at issue in a particular case satisfies the jurisdictional requirement of section (2)(a)(2)(b), then the conduct also falls within the sweep of the commerce power and may be regulated constitutionally. If the facts do not satisfy the jurisdictional element, then the Constitution would prohibit the statute from reaching the conduct under the commerce power—but those are the same cases where the statute does not reach the conduct, so constitutional limits are never transgressed.97
b. RLUIPA Regulates "Economic Activity"
Second, when a jurisdictional element assesses the effect of regulated activity on interstate commerce on a case-by-case basis, the court need not examine whether that regulated activity may also be characterized as "economic" generally.98 RLUIPA regulates "economic activity"—the use, building, or conversion of land for religious purposes—by prohibiting interference with that activity.99 These decisions are reinforced by a Fifth Circuit decision concluding that congressional preemption of local zoning laws to combat housing discrimination fell within the commerce power, based in part on a finding that Congress was regulating "economic activity."100 The court reasoned "an act of discrimination that directly interferes with a commercial transaction"—in this case, the purchase, sale, or rental of residential property—"is an act that can be regulated to facilitate an economic activity."101 The purchase, sale, rental, development, or use of land is no less an "economic activity" when undertaken by a religious group or other nonprofit organization.102 Courts have consistently held that the commercial activities of religious institutions—including employment and the provision of social services—are subject to regulation under the Commerce Clause.103 If commercial activities of religious entities fall within the commerce power subject to congressional regulation, they cannot fairly be said to fall beyond that power when it would deregulate them. Therefore, unlike the statutes at issue in Lopez and Morrison, RLUIPA regulates "economic activity."
RLUIPA regulates the "economic activity" of the commercial activities of private parties using, developing, and converting land for religious purposes—not the regulatory activities of local governments.104 The Commerce Clause protects private commercial transactions from all manner of interference, even in the form of regulatory action by state and local governments. If it were otherwise, dormant Commerce Clause jurisprudence would be meaningless. Commerce Clause legislation may similarly preempt state and local laws in order to regulate—that is, facilitate—private "economic activity."105 That is exactly how RLUIPA operates.106 Section 2(a) is typical of Commerce Clause statutes that set certain limits on (but do not replace or supplant) the zoning power of local governments when they interfere with commerce—that is, when they tread into federal territory.107
c. RLUIPA Regulates a Class of Behavior Having a Direct, Rather Than an Attenuated, Link to Interstate Commerce
Third, the aggregate effect of the regulated activity at issue here has a direct link to interstate commerce. Even after Lopez and Morrison, courts will measure interstate effect by examining the activity at issue "taken together with that of many others similarly situated."108 But even these aggregated effects may fall beyond the commerce power if they are "so indirect and remote that to embrace them . . . would effectually obliterate the distinction between what is national and what is local."109 Thus, a city's refusal to allow a church to occupy and renovate its building also directly stifles the multiple, large-scale, commercial activities involved in the church's proposed construction project: employing construction workers, purchasing and transporting...
