December 20, 2022
Recurring Constitutional Issues in Federal Legislation
The Constitution both empowers and limits Congress in its
Power to Enforce the Civil War Amendments: The
lawmaking function. Each piece of federal legislation
Thirteenth, Fourteenth, and Fifteenth Amendments
potentially raises two questions: (1) has Congress acted
respectively abolished slavery, enshrined rights to due
within the bounds of its enumerated powers; and (2) does
process and equal protection of the laws, and barred states
the legislation implicate any other constitutional
from abridging the right to vote because of race. Congress
constraints, such as federalism, the separation of powers, or
may enforce these rights through “appropriate legislation.”
individual rights? This In Focus highlights constitutional
U.S. CONST. amends. XIII, § 2, XIV, § 5, XV, § 2. Such
issues that frequently arise in drafting and reviewing federal
power allows Congress to remedy or prevent a
legislation. It sets out the main legal standards for each
constitutional violation, not to change the nature or scope of
constitutional power and constraint discussed below to aid
a constitutional right. City of Boerne v. Flores, 521 U.S.
Members and congressional staff when analyzing these
507 (1997). The Court’s standards for deciding whether an
issues in consultation with CRS Legislative Attorneys.
enforcement measure is “appropriate” may depend on the
right at issue. Fourteenth Amendment legislation must be
Commonly Invoked Enumerated Powers congruent and proportional to the asserted injury. Id. at
Federal statutes must fall within the scope of Congress’s
530–33. Measures imposed on particular states under the
enumerated, constitutional powers. Congress often relies on
Fifteenth Amendment must reflect “current conditions” to
its Commerce Clause and Spending Clause powers to enact
preserve the states’ equal sovereignty. Shelby Cty. v.
federal programs and regulate the activities of private
Holder, 570 U.S. 529, 557 (2013).
entities and even states. See CRS Report R44729,
Constitutional Authority Statements and the Powers of
Necessary and Proper Clause: Congress may make laws
Congress: An Overview. Congress also has lawmaking
that are “necessary and proper” for carrying out not only its
authority under other parts of the Constitution, such as the
own enumerated powers but also “all other Powers” that the
Fourteenth Amendment.
Constitution vests in the federal government or its
departments or officers. U.S. CONST. art. I, § 8, cl. 18.
Commerce Clause: The Supreme Court has identified
“Necessary” in this sense means that a law is rationally
“three broad categories of activity” that Congress may
related to implementing a federal power. United States v.
regulate under its Commerce Clause power (U.S. CONST.
Comstock, 560 U.S. 126, 134 (2010).
art. I, § 8, cl. 3): (1) use of “the channels of interstate
commerce”; (2) “the instrumentalities of interstate
Common Constitutional Limits
commerce, or persons or things in interstate commerce”;
and (3) “activities that substantially affect interstate
Federalism
commerce.” United States v. Lopez, 514 U.S. 549, 558–59
The federal and state governments each have sovereign
(1995). When a law regulates noneconomic activity under
powers under the Constitution, creating federalism-based
the third category, courts generally look for (1) an “express
limits on Congress’s powers. See CRS Report R45323,
jurisdictional element” limiting the law’s reach to activities
Federalism-Based Limitations on Congressional Power: An
that “have an explicit connection with or effect on interstate
Overview. The following doctrine and many of the
commerce”; and (2) “express congressional findings”
foregoing limits on Congress’s enumerated powers are
regarding the regulated activity’s effects on interstate
based on federalism concerns.
commerce, which cannot be too attenuated. Id. at 562;
United States v. Morrison, 529 U.S. 598, 612–14 (2000).
Anti-commandeering: This doctrine prohibits Congress
from issuing “direct orders” to the states to enact or enforce
Spending Clause: Congress may spend federal funds to
a federal regulatory program or bar states from enacting a
provide for the country’s “general Welfare.” U.S. CONST.
law otherwise within their power. Murphy v. NCAA, 138
art. I, § 8, cl. 1. It may also attach conditions to those funds,
S. Ct. 1461, 1476 (2018). The doctrine does not prevent
subject to four limitations. First, the law must provide clear
Congress from preempting state law so long as the federal
notice of the condition to give recipients an opportunity to
law regulates private entities and states rather than simply
accept or reject the funding. Second, the condition must be
dictating what laws a state may or may not enact.
related to the purpose of the funding. Third, Congress may
encourage, but not coerce, states to accept the condition.
Separation of Powers
Fourth, the condition must not violate an independent
The Constitution divides the federal government’s powers
constitutional bar, such as the First Amendment. South
into three branches (executive, legislative, and judicial),
Dakota v. Dole, 483 U.S. 203 (1987); see CRS Report
vesting each with specific authorities. A statute can
R46827, Funding Conditions: Constitutional Limits on
implicate the separation of powers if it violates either an
Congress’s Spending Power.
express or implied constitutional grant of authority to a
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Recurring Constitutional Issues in Federal Legislation
particular branch or if Congress acts beyond the lawmaking
judicial trial. To determine whether a law is an
role assigned to it in the federal system.
unconstitutional bill of attainder, the Supreme Court asks
whether it imposes a type of historically prohibited
Congress’s Exercise of Powers: When Congress exercises
punishment; whether it furthers any legitimate, nonpunitive
the legislative power, it sets legal rights or duties.
purposes; and whether there is other evidence of
Generally, an exercise of this power requires both houses of
congressional intent to punish. Nixon v. Gen. Servs. Adm’r,
Congress to pass legislation, present it to the President for
433 U.S. 425 (1977). Ex post facto laws impose retroactive
approval, and potentially override a presidential veto. U.S.
punishment, whether by retroactively punishing a
CONST. art. I, § 7. Congress may not use procedures, such
previously innocent act or increasing the punishment for a
as legislative vetoes, that depart from the Constitution’s
crime or by changing rules of evidence or proof needed to
lawmaking requirements. INS v. Chadha, 462 U.S. 919
convict. Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798).
(1983). In addition, Congress may not execute the laws it
passes or actively supervise persons who do. Bowsher v.
Procedural Due Process: The Fifth Amendment states that
Synar, 478 U.S. 714 (1986).
no person shall be “deprived of life, liberty, or property,
without due process of law.” While due process is likely
Appointment and Removal of Federal Officers: A law
most familiar in the judicial context, this guarantee also
that creates a new position in the federal government or
applies to congressional action—for example, to ensure
changes the duties of an existing office could implicate
Congress provided sufficient procedures for the seizure of
constitutional requirements involving the appointment or
property. The Court has said that government actions
removal of federal officers. The Appointments Clause (U.S.
satisfy due process if they are consistent with procedures
CONST. art. II, § 2, cl. 2) requires that principal officers of
historically guaranteed under the common law and, more
the United States be nominated by the President and
generally, if they preserve “principles of liberty and
confirmed by the Senate, while Congress may vest the
justice.” Hurtado v. California, 110 U.S. 516, 537 (1884).
appointment of inferior officers in the President alone,
department heads, or the courts. Officers occupy a
Equal Protection: The Fourteenth Amendment provides
“continuing position established by law” and exercise
that a state may not “deny to any person within its
“significant authority” on behalf of the United States. Lucia
jurisdiction the equal protection of the laws,” and the
v. SEC, 138 S. Ct. 2044, 2051 (2018). Laws that give such
Supreme Court has held this principle applies to the federal
authority to individuals who have not been properly
government through the Fifth Amendment. Bolling v.
appointed likely run afoul of the Constitution. Laws that
Sharpe, 347 U.S. 497 (1954). The Court evaluates
interfere with the removal of federal officers may also
discriminatory laws under a three-tier system. First, if a law
violate the separation of powers. E.g., Free Enter. Fund v.
discriminates against a suspect class such as race or religion
PCAOB, 561 U.S. 477 (2010).
or burdens a fundamental right, the law is to be subject to
strict scrutiny and held unconstitutional unless it is
Nondelegation: This doctrine bars Congress from
narrowly tailored to a compelling government interest.
assigning its lawmaking function to another branch of
Laws that discriminate on the basis of sex are evaluated
government or granting federal powers to a private entity.
under intermediate scrutiny and must be substantially
Like the Appointments Clause, this doctrine could arise if a
related to an important government interest. All other laws
law creates a new federal agency or private body with
are subject only to rational basis review and are to be
regulatory functions. Congress must provide an “intelligible
upheld so long as they are reasonably related to a legitimate
principle” to guide the executive branch’s implementation
government interest. Clark v. Jeter, 486 U.S. 456 (1988).
of federal law. Gundy v. United States, 139 S. Ct. 2116,
2129 (2019). In addition, Congress may not assign certain
Free Speech: The First Amendment’s Free Speech Clause
federal powers or duties to unappointed, private entities.
bars the government from “abridging the freedom of
CRS Report R44965, Privatization and the Constitution:
speech.” The Supreme Court uses different tests to analyze
Selected Legal Issues.
laws that infringe on protected speech, depending on the
context, but there are overarching principles. A law will
Individual Rights
usually be subject to heightened scrutiny if it regulates on
Besides the legislative powers and structural issues
the basis of speech’s content and will likely be considered
discussed above, the Constitution guarantees that the
unconstitutional if it discriminates among viewpoints. A
government will not unduly infringe certain individual
court may also subject some disclosure requirements to
rights. These include rights to procedural and substantive
heightened scrutiny on the ground that they compel speech.
due process; a speedy and public trial; the equal protection
Free Speech Clause, CONSTITUTION ANNOTATED.
of the laws; freedom to bear arms; and freedom of speech,
press, and religion. This In Focus describes a few
Valerie C. Brannon, Legislative Attorney
crosscutting individual rights.
Victoria L. Killion, Legislative Attorney
Sean M. Stiff, Legislative Attorney
Bills of Attainder and Ex Post Facto Laws: Article I of
the Constitution prohibits bills of attainder and ex post facto
IF12292
laws. A bill of attainder imposes punishment without


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Recurring Constitutional Issues in Federal Legislation


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