When is a Law “Unconstitutional”?

Written By: Jaspers, Moriarty & Walburg, P.A. | Published On: 7th September 2011

While watching the GOP debate on Wednesday evening with my wife Amy (also a lawyer), we heard a number of GOP candidates call a number of different laws “unconstitutional.” Michelle Bachmann is particularly of the belief that quite a few federal laws are unconstitutional, based on her repeated use of the term. Unfortunately, it appears that these candidates don’t actually know what unconstitutional means.

A law is unconstitutional if the law is either facially in violation of some provision of the Constitution because the words of the law are prohibited by the express provisions of the Constitution, or, the law as applied violates a provision of the Constitution because, in practice, the law violates a provision of the Constitution. To show the difference, take for example a law that said newspapers cannot print stories about politicians. This would facially violate the First Amendment because the First Amendment says “Congress shall make no law…abridging the freedom of speech, or of the press.”

Showing an example of a law that is unconstitutional as applied requires a bit more depth. Take the example of a law that says no animal may be killed within the Shakopee city limits. This law would presumably be constitutionally sound on its face because there is no part of the Constitution that limits the power of the government to regulate animal slaughter. However, if this law was aimed at preventing a religious group from practicing its religion through animal sacrifice (religious exercise, regardless of how unusual it might be, is specifically protected by the First Amendment), that law as applied would violate the First Amendment because the law was directed at infringing that group’s right to exercise its religious practices.

Getting back to the candidates’ misuse of the term, I decided to take Michelle Bachmann’s statements as an example. On Monday this week, Ms. Bachmann called the Department of Education unconstitutional because there is no enumerated power of the federal government to regulate education. Ms. Bachmann is correct that the federal government has no specific power to regulate education – that is why most education decisions happen at the state and local level. However, Congress does have the power to pass legislation funding all kinds of programs, including programs that fund education. In those funding bills (called appropriations), Congress can condition payment on the states’ compliance with certain conditions, like requiring schools to meet minimum test scores, or requiring schools institute affirmative action hiring policies. Therefore, Congress can ‘regulate’ education by its power of the purse. This power is active in well-known programs like No Child Left Behind and Head-Start.

Ms. Bachman also called the census forms unconstitutional. While Ms. Bachman is entitled to her opinion, the plain language of the Constitution says that congress must apportion representatives every ten years  based upon a census: “The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.” U.S. Const., Art. 1, Sec. 2.

One last example. Bachmann decried as unconstitutional “Obamacare”, the new federal health care law. On Wednesday, she did not specify what provision of the law was unconstitutional (or actually elaborate on her position at all). Had Bachmann read Article I of the Constitution, she would have found that Congress has the power to “lay and collect taxes, duties, imposts and excises” and to “provide for….the general welfare of the United States.” Obviously, Congress would have the power to regulate health care.*

From time to time JMW has a novel case where we challenge a law as unconstitutional, and we actually know what that means. If you have a question about a law infringing your rights, call 952-445-2817.

*That said, there are quite a few lawsuits pending challenging this law, particularly the “individual mandate” provision. The 11th Circuit has ruled that the individual mandate provision causes the law to be unconstitutional, but that in fact “The health care market is more than one-sixth of the national economy, and without doubt Congress has the power to reform and regulate this market.” This issue will likely come before the U.S. Supreme Court for a final decision.