by Michael C. Dorf
Barely two weeks ago, the Senate unanimously passed a bill--the Sunshine Protection Act--that would make Daylight Saving Time permanent. Unanimously, that is, among the Senators who knew this was happening. Will the House follow suit? If so, will President Biden sign the bill?
Time will tell, but the editors of the Arizona Law Review are not waiting to find out. They just went live with an online symposium somewhat pretentiously titled "The Unlawfulness of Federal Daylight Savings [sic] Time." Because Arizona is one of only two states (the other being Hawai'i) that don't currently use Daylight Saving Time, the forum is appropriate. Even better, two of the articles are surprisingly interesting. Here I'll say a few words about each.
(1) Federal Power.
In Einstein Taught Us Time Is Relative, Not Absolute, Professor Josh Blackman contends that Congress lacks the affirmative power to establish time for the entire country. But wait, you say. That argument would invalidate not only the new legislation but also the prior regime, including longstanding provisions like 15 U.S.C. § 262, which first legislated uniform time zones as part of the Railroad Control Act of 1918. Blackman acknowledges that the 1918 Act was invalid under his approach, but he calls that a "feature, not a bug" of his approach. He writes:
Even in 1918, federal legislation was not necessary. Of course uniform time zones facilitate efficient railroad timetables, but the railroads adopted such uniform zones on their own in 1883. The 1918 legislation purported to regulate interstate commerce for the benefit of the railroads but was in fact a naked power grab by Congress. It was a pretextual use of the commerce power and thus neither necessary nor proper.
How does Prof Blackman deal with the fact that both the existing provision and the new bill allow states to opt out? He answers that the requirement of a state legislative opt-out shows that in fact the federal law "regulates the states as states in violation of the anti-commandeering principle." He goes on to articulate what he calls the "anti-leveraging principle," which, he argues "complements the anti-commandeering principle":
Where a federal statute purports to regulate interstate commerce and/or the federal government's own internal practices, as Section 262 does, but in fact leverages whatever federal power exists for those purposes to displace vast swaths of state sovereignty, courts should closely scrutinize the law. Here, given the dubious justification for Section 262 even as applied to interstate commerce, federal time zone legislation must fail.
Prof Blackman also offers an originalist argument. He notes that Benjamin Franklin's essay An Economical Project first suggested something like Daylight Saving Time in 1784, three years before the Constitutional Convention:
Thus, the framers were well aware of the possibility of regulating time. Yet they included no provision in the Constitution empowering Congress to regulate time. Time and space are the fundaments of the universe. Surely if anything qualifies as a "great substantive independent power" within the meaning of McCulloch v. Maryland, it must be power over the very substrates of existence. Hence, the Constitution's failure to grant express power to Congress to regulate time implies there is no such power.
In summarizing Prof Blackman's article, I have omitted many of the details and responses to criticisms. I don't find him ultimately persuasive but that's not to say that five Justices won't.
(2) Religious Freedom
In Opting Out and Sleeping In: The RFRA of Time, Professor Richard Garnett argues that the Religious Freedom Restoration Act (RFRA) entitles religious dissenters to opt out of year-round Daylight Saving Time. The prima facie RFRA argument is solid. If one has a religious obligation to use standard time rather than Daylight Saving Time, then, absent narrow tailoring to a compelling interest, one must be exempt. But that leaves two questions that the paper must (and does) address: (a) What religion, if any, opposes Daylight Saving Time?; and (b) Even if one has a sincere religious objection to say, showing up for work at what the boss calls 9 am but you believe on religious grounds is 8 am, how is your religious exercise subject to a substantial burden by showing up at what you regard as 8 am?
(a) Prof Garnett acknowledges that "the leadership of no religion of which I am aware currently regards year-round Daylight Savings [sic] Time as sinful, but neither the Free Exercise Clause nor RFRA requires leadership of a religious organization to endorse even highly idiosyncratic beliefs, so long as they are sincere." I agree in principle, but Prof Garnett's next move is likely to be controversial. He promotes what he calls "law-antagonistic religious principles." Here's the key language from the article:
In the 1968 case of United States v. Kuch, a federal district judge concluded that the Neo-American Church was bogus, because "the desire to use drugs and to enjoy drugs for their own sake, regardless of religious experience, is the coagulant of this organization and the reason for its existence." Although most subsequent commentary has focused on how one discerns the motives of those professing fringe religious beliefs, a basic premise of Kuch has gone unchallenged--that if the religion's raison d'être is in fact to generate excuses from a law, that religion (or a claimed tenet of any religion) is necessarily insincere. Yet that premise is wrong. Religions often form in dynamic relation to the exercise of state power. Talmudic Judaism took shape in reaction to the strictures of Babylonian law. Early Christian practices were shaped by and in response against Roman law. So too today, whether resisting prohibitions on recreational drug use (as in Kuch), vaccination mandates, or the tyranny of Daylight Savings [sic] Time, law-antagonistic religious principles are no less valid than any other religious principles. To hold otherwise would be to discriminate against minority faiths.
Suppose we grant that coming to believe an idiosyncratic article of faith or even starting a brand new religion for the very purpose of getting an exemption from some law does not, ipso facto, render that belief or faith insincere. Still, has anyone actually claimed that they have a religious belief that precludes their use of year-round Daylight Saving Time?
Not yet, Prof Garnett acknowledges, but in what my colleague Nelson Tebbe (who writes a short reply essay in the symposium) describes as "Garnett's boldest intellectual maneuver," he offers a "how-to guide for anti-cloxxers":
In Joshua 10:12, God makes the sun and moon stand still in the sky so that the Israelites can finish the job of slaying their Amorite enemies. From this verse, a Jew, Christian, or Muslim could infer that God and God alone has the power to determine when the sun goes down. Hence, on a straightforward textualist reading, permanent Daylight Savings [sic] Time is blasphemy.
With due respect, the argument seems upside-down. If the point is that humans oughtn't to try to do a job reserved for God, then one would think that making any account of time permanent is better than the status quo in which humans change the time--i.e., play God--twice a year.
Garnett responds to this objection (a version of which Professor Tebbe also includes in his reply essay) by observing that "there is no requirement that religious beliefs be sensible, coherent, or non-self-contradictory."
(b) But what about the second question? No one will be required to "observe" Daylight Saving Time, so long as they show up for whatever they're required to show up for at the right time. Thus, if Sam has a court appearance at 10 am DST but Sam is a religiously scrupled anti-cloxxer, he can just note in his datebook that his appearance is at 9 am. How is that possibly a burden, much less a substantial burden, on Sam's free exercise of religious anti-cloxxerism?
Garnett answers that requiring anti-cloxxers to use a different time is itself discriminatory. Tebbe calls this gambit "intriguing but unpersuasive, because the law doesn't require anti-cloxxers to use different time; their religion does." Garnett in turn says that cases like Zubik v. Burwell "show that the procedure for obtaining a religious exception can itself violate RFRA" and that therefore "if a government employer says the workday starts at 9 am DST, it is unacceptable to require a religiously scrupled anti-cloxxer to arrive at 8 am Standard Time. RFRA demands an accommodation, which means that the anti-cloxxer can arrive at 9 am Standard Time."
I must say that, like Tebbe, I find Garnett's argument intriguing and creative but almost crazy. However, it ultimately seems no crazier than the rest of the Supreme Court's recent religious exceptions jurisprudence.
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