The United States Constitution is short and easy to read. It is far shorter and easier to read than most legislation, excepting such fluff as a declaration of a “National Eat Healthy Day.” The guts of it are that the federal government can lawfully exercise only those powers the Constitution grants; everything else is reserved to the states and to the people. Article X of the Bill of Rights says:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Article XIV of the Constitution, among other things, extended to state governments some but far from all of the prohibitions on the federal exercise of power:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Article XV expressly limits the power of both the federal and state governments:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Over the years, the impact of federal laws on individual citizens, as well as on the states, has become engorged by minimizing or ignoring constitutional limitations. These expansions originate with the Congress and the administrative agencies the Congress creates, as well as with executive orders. No legislation should be passed, and no executive order issued, without a clear and detailed statement of its constitutional basis. The federal government should not be permitted to rely upon bases not stated if the stated basis fails.
According to this article:
I have been fascinated by Christine O’Donnell’s constitutional worldview since her debate with her opponent Chris Coons last week. O’Donnell explained that “when I go to Washington, D.C., the litmus test by which I cast my vote for every piece of legislation that comes across my desk will be whether or not it is constitutional.” How weird is that, I thought. Isn’t it a court’s job to determine whether or not something is, in fact, constitutional? And isn’t that sort of provided for in, well, the Constitution? In 2003, O’Donnell said of the Supreme Court that “it’s kind of like we have the nine people sitting there in Washington who have a constitutional monarchy and that is an abuse of the system.” So I do wonder a little whether she’s claiming that her view of what’s constitutional trumps theirs. Not a lot of space for checks and balances in that reading.
To the contrary, Ms. O’Donnell got it about right, demonstrating a healthy regard for the Constitution and the separations of powers it created. I would extend the thought to executive orders and also to the actions of our ubiquitous and very powerful administrative agencies, which all too often pay insufficient attention to the statutes authorizing them.
As observed by Judge Tatel of the D.C. Circuit Court of Appeals in an address to folks at the EPA:
As its most fundamental inquiry, administrative law calls upon courts to determine whether an agency’s action falls within the scope of its authorizing legislation. This task often involves no more than reading the law. Then‐Professor Felix Frankfurter, one of the fathers of administrative law, famously admonished his students: “(1) read the statute; (2) read the statute; (3) read the statute!” This is self‐evidently good advice, but you’d be surprised how often agencies don’t seem to have given their authorizing statutes so much as a quick skim. … After all, agency authority comes only from Congress. If the agency can’t reasonably trace its action to a statute, it has no business acting. Although agencies are more accountable than courts, Congress is more accountable still.
As an attorney involved for many years in cases involving the Federal Communications Commission, I know that Judge Tatel was right on point.
The legislative and executive branches obviously do not have the final say on what’s constitutional and what isn’t. That’s up to the courts and ultimately to the Supreme Court. However, the legislative and executive branches do have the first and second says and that’s very important. An imperfect analogy might be made: We The Peons get the first opportunity to decide whether something we want to do is lawful; if we do it and the courts decide that it was unlawful we suffer the consequences (or at least should; sometimes, there are no consequences).