Does the Government have the Authority or Power to Make a Law?
The government does not have unlimited authority to make laws. The US government’s authority to make a law must dervie from the US Constitution. Similarly, the US Constitution grants states the ability to have its own government. This includes the authority to make law.
In this article we discuss the two primary provisions of the US Constitution that provide authority for the Government to make a law. Then we explain the Constitutional standards of review to determine whether the law is legal. If the Government exceeded its authority to make laws (as provided in the US Constitution), the court can overturn the law.
What is included in the US Constitution?
The US Constitution is divided into seven articles. Article I, II, III establish the governance structure of the United States.
Article I establishes two legislative bodies, the House of Representatives and the Senate, to make the laws to govern the nation.
Article II establishes the executive branch, which is led by the President, to enforce laws.
Article III establishes the judicial branch of government to review the constitutionality of laws and their execution.
Since its passage, the Constitution has been amended 27 times. Most of these amendments serve to protect individual rights, known as “fundamental rights”, against government infringement. Perhaps the best-known constitutional rights are stated in the first ten amendments to the US Constitution, which make up the Bill of Rights.
- The 10th Amendment provides the authority for states to have their own Governments.
- The 14th Amendment, arguably the most important amendment, extends the protections afforded individuals under the Constitution by applying those provisions to state governments. Notably, the 14th Amendment introduced the Due Process and Equal Protection Clauses.
The authority of the US Government to make law is found within the:
- Commerce Clause, and
- Taxing and Spending Clause.
The authority of the State Government to make a law rests in the state’s “Police Power” to regulate the healtha and Welfare of its citizens.
It is worth noting up front that the Constitution protects against government infringement of individual rights. It does not protect against infringement by individuals.
Now, let’s take a deeper look at the authority of the US Government to make laws affecting its citizens.
What is the “Commerce Clause”?
The authority of the Federal Government to make law is generally based either in the Commerce Clause or the Taxing and Spending Power.
Article I, Section 8, specifically grants to the Federal Government the right to “regulate commerce … among the several states…” and is known as the Commerce Clause.
The Commerce Clause allows the Federal Government to regulate any activity that affects “interstate commerce”. It is the most commonly employed justification for the passage of federal laws affecting citizens and businesses within the US.
In reality, almost any sort of business activity affects interstate commerce and thus falls under the regulatory authority of the Federal Government. The Federal Government does not, however, have the authority to regulate an activity that is carried out solely within a state’s borders and has no discernible effect on interstate commerce.
- Example: The Federal Government may prohibit discrimination by hotels and theaters that serve individuals crossing state lines. It would not, however, be able to prohibit an individual from raising plants for personal consumption on private land, when the seeds for those plants do not originate outside of the state and the plants produced will never be sold commercially or transferred outside of the state.
Unless an area of law is expressly reserved for federal regulation, states have the authority to pass laws based upon their police power. The state law cannot “intend to regulate” or “substantially conflict with” interstate commerce. The substantially conflict with provision is known as the “Dormant Commerce Clause”.
The Taxing and Spending Clause
Article 1, Section 8, expressly grants to the Federal Government the “Power to lay and collect Taxes, Duties, Imports, and Excises” and is known as the Taxing Power.
The taxing and spending power allows for the funding of Federal Government operations. The ability to tax is limited by the requirement that all taxes be uniformly applicable to all individuals.
Article 1, Section 8 further allows the Federal Government to “Pay the debts and provide for the common Defense and general Welfare of the US” and is known as the Spending Power.
This authority allows the Federal Government to incur and manage domestic and foreign debt. It also allows for the formation of the military and funding of the military defense budget.
What are the standards by which the government (through laws or actions) may infringe on individual rights?
The above discussions should demonstrate that many laws, to some extent, infringe upon the rights of citizens. Individuals often challenge the constitutionality of these laws in court.
As previously stated, one role of the judiciary is to determine the constitutionality of laws and the execution of those laws. For a law to pass constitutional muster, it must meet a certain standard justifying its existence.
The standard that the court applies depends upon the rights infringed upon.
Below are explanations of the applicable standards.
Minimum Rationality -Standard for Constitutional Review
This standard, also known as the “Rational Basis Standard of Review”, requires that a law have a rational connection to a permissible state end (a legitimate goal of the government).
The classification must have a “reasonable basis” (not wholly arbitrary), and the courts will assume any statement of facts that can be used to justify the classification.
This standard applies to laws that affect a “non-fundamental right” or one that is not expressly protected under the Constitution, such as social welfare and economic matters. As such, it is the default standard by which the court reviews a law to determine constitutionality.
The standard is higher if the law affects a fundamental right, such as due process or equal protection rights. This is discussed next.
- Example: The state passes a law concerning the speed limit on state highways. This law is not related to a fundamental right; rather, it is related to the privilege of driving. As such, this law would need to have a rational connection to a legitimate state goal. The goal of reducing traffic accidents or promoting motorist safety is sufficient to find the statute constitutional.
- Discussion & Practice Questions
Strict Scrutiny -Constitutional Standard of Review
This standard requires that a law have a compelling state purpose to be constitutional. Further, the law in question must be “narrowly tailored” to achieve that purpose and must be the “least restrictive means” of achieving that purpose.
This means that the government must make certain that the law is not overly broad in the type of conduct that it affects. Further, there must not be another method of achieving this purpose without infringing upon the affected individual’s rights.
Strict scrutiny is used if the classification involves a fundamental right under the Bill of Rights or under the Due Process Clause. It is also applied when a law or government action specifically affects a suspect class. That is, the law or action has a discriminatory effect based upon race, gender, religion, and national origin.
- Example: The state passes a law prohibiting individuals from burning the state flag. Burning a flag is a form of expression that is protected by the 1st Amendment. For this statute to be constitutional, it must achieve a compelling governmental purpose (within the state’s police power), be narrowly tailored to achieve that purpose, and be the least restrictive means of achieving that purpose. In this situation, there is likely no compelling purpose related to the state’s police power that justifies limiting an individual’s 1st Amendment rights. As such, the state statute would likely be held unconstitutional.
- Discussion & Practice Question
Intermediate Scrutiny – Constitutional Standard of Review
This standard requires that the law further an “important government interest”. It must do so in a manner that is “substantially related” to the objective.
When laws only partially affect a suspect class or the rights involved border upon fundamental rights, this intermediate level of scrutiny applies.
This standard has been applied in determining the constitutionality of laws or government action based upon sex; laws affecting the status of undocumented or illegal immigrants; restrictions on rights to own firearms; and content-neutral restrictions on free speech.
- Example: The city of Atlantis passes an ordinance limiting the ability of individuals to own a firearm without first undertaking a gun safety course, passing a background check, and filing for a permit from the locality. This statute affects an individual’s 2nd Amendment rights to own a firearm, but it does not prohibit it. As such, this scenario would likely be evaluated under intermediate scrutiny. Atlantis must demonstrate an important government interest, such as the reduction of a high level of gun violence in the jurisdiction. The statute must be substantially related to achieving that objective. The constitutionality of the statute would turn on the interest of the state versus the burden that it places on an individual’s constitutionally protected right.
- Discussion & Practice Question
What are the theoretical (political) views toward judicial review?
As previously discussed, appellate courts have the power of judicial review. This includes the power to review laws passed by the legislative body or actions by the executive and to declare them to be unconstitutional and void.
Two primary views exist regarding the role of the judiciary in executing its authority:
- Judicial Restraint – Proponents of judicial restraint believe that the judiciary’s power of review should not be used except in unusual cases.
They specifically believe that review of laws that has the effect of expanding or limiting the understanding of constitutional rights are too important to be decided by courts unless absolutely necessary.
As such, any case that requires analysis of and interpretation as to the extent of rights afforded under the Constitution are to be avoided if there is another legal basis for a decision.
Proponents of judicial restraint also believe that litigation is not the appropriate technique for bringing about social, political, and economic change. That is, social, political, and economic change should only result from the passage of laws by the legislative branch of the federal or state government.
- Judicial Activism – Proponents of judicial activism support the use of the judiciary’s power of review.
They believe that judicial interpretation of laws is the appropriate vehicle for developing legal standards and should be used whenever justified by the needs of society or public sentiment.
Proponents of judicial activism also believe that constitutional issues must be decided within the context of contemporary society. They adopt the view that the meaning of the Constitution is relative to the collective beliefs, sentiments, and values of society at the time in which the law is being interpreted.
These views of the role of appellate courts have become largely a political issue.