Stephanie Acosta Inks (Georgetown University Law Center) has posted Immigration Law's Looming RFRA Problem Can Be Solved By RFRA on SSRN. Here is the abstract:
Two of the primary objectives of President Trump's administration are the expansion of religious freedom and strict immigration enforcement. There is a proliferating movement, however, among religiously motivated people to aid vulnerable undocumented immigrants that is taking place in this context of stepped-up efforts to enforce immigration laws. As executive officials continue to aggressively prosecute immigration laws and at the same time promote a robust understanding of religious freedom, however, a conflict is imminent between a broad interpretation of the INA’s § 1324 prohibition against "harboring" and the Religious Freedom Restoration Act. One salient example of the conflict is the current litigation in United States v. Warren in the district of Arizona where Dr. Scott Warren is being criminally prosecuted under a broad interpretation of the harboring provision for meeting his religious obligation to provide basic necessities to human beings in distress. This article argues for a RFRA-based statutory construction of the INA’s harboring provision that would influence prosecutorial officials in the first instance and courts, if necessary, to minimize the potential conflict between the two statutes. Moreover, the puzzle of how to resolve the interaction of RFRA and the INA highlights a useful starting point for re-examining the best way to fulfill RFRA’s mandate. While RFRA has traditionally been employed on a case by case exemption basis, this article proposes that a better way to fulfill RFRA’s mandate–in limited circumstances–is to utilize it prophylactically as a tool of construction when the standard interpretive tools have failed and a statute remains irreducibly ambiguous with a large-scale RFRA infirmity lurking in one interpretation.
Very interesting & highly recommended.