Currently, a petition for certiorari sits before the Court in Kerpen v. Metropolitan Washington Airports Authority, No. 18-1240. And someone at the Court is interested—when the U.S. Solicitor General waived the federal government’s response, the Court called for a response.
That’s not surprising. The petition presents an off-the-rails Fourth Circuit decision that flouts the separation of powers in upholding an agency that is a constitutional monstrosity. And MWAA twice before had some aspect of its structure struck down as unconstitutional, once by the Supreme Court and once by the D.C. Circuit.
But there’s more. Not evident in the petition or the lower court decision lurks a religious liberty issue. Kerpen thus presents an ideal showcase for how the separation of powers protects religious liberty just as much as the First Amendment.
The Kerpen petition, brought by Supreme Court veteran Gene Schaerr, challenges the constitutionality of the Metropolitan Washington Airports Authority. MWAA runs the Reagan and Dulles Airports, as well as the Dulles Toll Road, all three of which are federally owned. Yet MWAA is an “independent” entity, created by an interstate impact between Virginia, Maryland, and D.C., that exercises delegated federal authority from Congress over these three federal assets.
Frankenstein in its nature, MWAA is, by law, neither accountable to the federal government nor the states that created it. The Fourth Circuit found nothing constitutionally amiss with Congress delegating federal power to this hodgepodge creation because MWAA’s power is not “inherently” federal. Further, the lower court found that Congress can delegate federal power to an interstate compact or other public body. And the Fourth Circuit found that Guarantee Clause didn’t apply despite the fact that an entity taxes, spends, and legislates on state soil without any state government supervision.
How the Separation of Powers Protects Religious (and all) Liberty
Yet buried in that morass of separation-of-powers violations is an affront to religious liberty. The Founders would not be surprised at the connection between the two. The Federalists, for example, saw no need for a Bill of Rights since it was separating and limiting the power of government that provided freedom’s real protection. Thus, James Madison would observe in The Federalist No. 51, “the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivide among distinct and separate departments.” Thus, as governmental “ambition [is] made to counteract ambition,” “a double security rises to the rights of the people.”
Likewise, to Thomas Jefferson, “the leading principle of our Constitution is the independence of the Legislature, executive and judiciary of each other.” That is because, as Madison noted in The Federalist No. 47, the “accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective may justly be pronounced the very definition of tyranny.”
Or, as Justice Scalia was want to say, “Every tinhorn dictator [in] the world has a bill of rights. With the right structure, you will preserve freedom even without a bill of rights. If you don’t have the right structure, even a bill of rights will not save you. They are just words on paper unless the structure of the government prevents the centralization of power in one party or one man.”
Recent Supreme Court cases on religious liberty have born this wisdom out as the administrative state has increasingly jettisoned our constitutional separation of powers. Take Hobby Lobby and Little Sisters of the Poor—both involved threats to religious liberty that came not from legislation that had survived congressional bicameralism and presentment to the President, but regulations passed by executive agencies exercising delegated legislative power. Such threats never would have arisen had the constitutional separation of powers been robustly followed.
MWAA’s Threat to Religious Liberty
And that brings us to MWAA. While the Kerpen petitioners do not raise religious liberty claims against MWAA, others have in the past. When an MWAA employee was punished by supervisors because she took two days off for Passover—days she had already raised with those supervisors—the employee brought suit, alleging, among other things, violations of the federal Religious Freedom Restoration Act and Virginia’s equivalent. The federal district court for the Eastern District of Virginia found that neither RFRA nor the state equivalent applied to MWAA because it was neither a federal nor a state entity. (The Fourth Circuit affirmed the district court, though on other grounds without reaching this particular holding.)
Despite exercising delegated federal authority to tax, spend, and legislate, according to this federal court, somehow MWAA was immune from federal law protecting religious liberty. And despite being run by an interstate compact, state federal religious liberty protections did not apply. The Founders would be flummoxed by such a scenario because the Constitution’s separation of powers (and the Republican Guarantee Clause) never should have allowed something like MWAA to exist.
Every time the separation of powers is strengthened, so is religious (and every other) liberty. Should the Court take Kerpen and reverse the Fourth Circuit, it can inherently protect our “first freedom” without ever invoking the First Amendment, RFRA, or other federal religious freedom laws.
And that would have Justice Scalia smiling.