A Five-Question Constitutional Test You Can Run on Any Federal Law

Somebody on television announces a brand-new federal law. It will fix everything, he says, and anyone who objects hates children, puppies and the future. You may have noticed a pattern. The speaker never says where in the Constitution Congress got the authority to do it. That is not an oversight. For most of the last century, the question has been treated as a formality, something for lawyers to worry about later, if at all.

It is not a formality. The Constitution is a list of what the federal government may do, with limits on how it does it. That means you, an ordinary citizen, can check a bill the way a contractor checks a set of plans. You don't need a law degree. You need five questions, a copy of the Constitution, and about thirty minutes. This post is a worksheet. Run it on any federal law, from either party, and it will tell you where the weak joints are.

Before you start

Get the actual text of the bill. Congress.gov posts every bill, with a short title, a summary and the full text. Read the sections that say what the law requires, who must do it, and who pays. Skip the findings and the speeches. Then keep a scorecard with five lines, one for each question below. For each, write Pass, Weak or Fail, and one sentence on why.

A warning, and I mean it. This is a method for asking better questions, not a machine that predicts how the Supreme Court will rule. Courts disagree. Doctrines change. A Weak on your scorecard means "this is where the lawyers will fight", and it is not a guarantee of defeat. Use it as a citizen, not as a substitute for a lawyer.

Question 1: Which enumerated power supports this law?

The first question is the one almost nobody asks. Congress has only the powers the Constitution grants it. Article I, Section 8 lists them: to lay and collect taxes, to borrow money, to regulate commerce with foreign nations, among the states and with Indian tribes, to establish a uniform rule of naturalization, to coin money, to establish post offices, to raise armies and a navy, and a handful more. The last clause gives Congress power to make laws "necessary and proper" for carrying out those powers. See Congress Can Only Do What the Constitution Lists and Madison Said So for the longer treatment.

How to run it. Find the sentence in the bill, usually near the top, that states its source of authority. Then match it to a clause. If the bill rests on the Commerce Clause, use the categories from United States v. Lopez (1995): does it regulate the channels of interstate commerce, the instrumentalities or persons and things in interstate commerce, or activities that substantially affect interstate commerce? In Lopez the Court struck down a federal ban on guns near schools because it was not an economic activity. In NFIB v. Sebelius (2012), the Court held that the Commerce Clause does not let Congress compel people to buy a product, but it upheld the individual mandate as an exercise of the taxing power because the penalty worked like a tax. The history behind the broad reading is told in A Farmer's Wheat Crop and the Long Fight Over the Commerce Clause.

Scoring. Pass if the bill names a clause and the clause fits. Weak if the answer depends on stretching "commerce" to cover something that isn't commercial. Fail if the sponsors cannot name any power.

Question 2: Does the Bill of Rights, or another limit, block it?

A law can rest on a real power and still violate a right. The second question asks about the limits on power. Check each of these against what the bill requires.

• The First Amendment: speech, religion, press, assembly.
• The Second Amendment: in New York State Rifle & Pistol Association v. Bruen (2022), the Court said that when the plain text covers the conduct, the government must show a regulation is consistent with the nation's historical tradition of firearm regulation.
• The Fourth Amendment: searches and seizures.
• The Fifth Amendment: due process, takings and compensation. See Kelo v. New London and the Backlash That Reached Statehouses Nationwide.
• Article I, Section 9: no bills of attainder, no ex post facto laws.

Scoring. Pass if no right is touched. Weak if the bill touches a right and relies on an exception. Fail if the plain text of a right forbids it.

Question 3: Does it commandeer or coerce the states?

The third question comes from federalism. Under the Tenth Amendment, powers not delegated to the United States are reserved to the states or the people. Congress may regulate individuals directly, but it may not conscript the states as its instruments. Three cases mark the line.

1. New York v. United States (1992). Congress may not order a state legislature to enact or administer a federal regulatory program.
2. Printz v. United States (1997). Congress may not require local sheriffs to run federal background checks. Justice Scalia's opinion held that the federal government may not compel state executive officers to administer a federal program.
3. Murphy v. NCAA (2018). Congress may not order a state to keep a law on the books that forbids something. The anti-commandeering rule applies to commands to refrain from legislating too.

Money gives Congress another lever, but with limits. In South Dakota v. Dole (1987), the Court upheld a law withholding five percent of a state's federal highway funds unless the state raised its drinking age to 21. The Court set five conditions: the spending must serve the general welfare; the conditions must be clear; they must relate to the federal interest in the funded program; they cannot violate another constitutional provision; and the pressure cannot be so great it becomes compulsion. In NFIB v. Sebelius the Court held that threatening to take away all of a state's existing Medicaid money unless it accepted the expansion was coercion, not persuasion. See NFIB v. Sebelius Lost the Mandate Fight but Won a Limit on Federal Strings and The Drinking Age Story Shows How Washington Buys Control of the States for the details.

Scoring. Pass if the bill regulates individuals or offers states a genuine choice. Weak if the money at stake is large or the condition has little to do with the program funded. Fail if it orders state officials to do federal work.

Question 4: Did Congress delegate too much?

Article I, Section 1 vests "all legislative Powers herein granted" in Congress. The fourth question asks whether Congress wrote the law or handed the writing to somebody else. The traditional test comes from J.W. Hampton v. United States (1928): Congress may delegate so long as it supplies an "intelligible principle" to guide the agency. The Court has struck down delegations only twice, both in 1935, in Panama Refining v. Ryan and A.L.A. Schechter Poultry Corp. v. United States. In Schechter, the Court unanimously rejected a scheme that let the President approve industry-written "codes of fair competition" with almost no standards. The Court has not struck down a statute on this ground since, though several justices have signaled interest in tightening the rule. A related brake is the major questions doctrine; see Chevron Is Gone, and Here Is What Loper Bright Changed for Everyone.

How to run it. Look for phrases like "as the Secretary deems appropriate" or "shall issue such regulations as necessary" without any standard. Ask: what has Congress actually decided, and what has it left to be decided later by someone no voter can fire?

Scoring. Pass if the bill states the policy and sets limits. Weak if broad discretion is paired with big consequences. Fail if the agency can write any rule it likes about anything.

Question 5: Who enforces it, and who can remove the officers?

Article II vests the executive power in a President, who must take care that the laws are faithfully executed. Officers of the United States must be appointed under the Appointments Clause, by the President with the Senate's advice and consent, or, for inferior officers, by the President, the courts or the heads of departments if Congress so provides. The fifth question asks who runs the thing and whether the President can remove them.

The cases here are collected in Who Can Fire the Regulators? A Timeline From Myers to Seila Law. Two matter most. Myers v. United States (1926) held that the President can remove executive officers without Senate approval. In Seila Law v. CFPB (2020), the Court held, 5 to 4, that Congress could not insulate the single director of the Consumer Financial Protection Bureau from removal except for cause. The Court left in place the 1935 Humphrey's Executor decision for traditional multi-member expert commissions, though its reach is debated, so check the latest rulings.

Scoring. Pass if officers are appointed properly and answer to the President. Weak if the structure is novel and shields officers from removal. Fail if a single powerful official cannot be removed by anyone elected.

A worked example: the Home Heat Safety Act

Time to put the test to work on a bill. This is a hypothetical, invented for this worksheet and not a real or pending bill. Here is what it says.

• Section 1 sets a safety standard for any space heater sold across state lines.
• Section 2 requires every household to buy and install a federally certified heater alarm, with a fine for refusing.
• Section 3 requires county sheriffs to inspect every home each year.
• Section 4 withholds 10 percent of a state's federal highway money unless the state adopts a federal home-heating code.
• Section 5 lets the Secretary of Home Safety write "any rules the Secretary finds in the public interest" for any home product.
• Section 6 creates a Home Safety Bureau run by a single director who serves a five-year term and can be removed only for cause.

Now score each section against the five questions.

Tally it. Out of seven rows, that is one Pass, five Weak and one Fail. A law with that scorecard has a lot of work to do. And here is the useful part: nearly every defect has a fix. Drop Section 3 or make it a state option. Make the inspection voluntary or warrant-based. Cut the funding condition to something small and related, or remove it. Replace Section 5 with a list of products and a standard. Put the director under the President or use a commission with proper appointments. A bill that passes the five questions is a better bill.

How to use this at the kitchen table

Run the test on bills you like first. Be honest with yourself. A conservative who wants the Constitution enforced against the other party's bills must apply the same rule to his own party's. That is the whole difference between a principle and a preference. For the broader practice of reading rulings, How to Read a Supreme Court Opinion Without a Law Degree helps, and Congress Should Write the Laws, and Other Radical Ideas From Article I explains why the structure matters.

Then write to your members of Congress. A short letter asking "what clause of the Constitution authorizes this bill?" gets read. It's the kind of specific question that is hard to answer with a talking point.

The bottom line

• Five questions: What enumerated power supports the law? Does the Bill of Rights or another limit block it? Does it commandeer or coerce the states? Did Congress delegate too much? Who enforces it and who can remove the officers?
• Each question is tied to text or case: Article I, Section 8; the Bill of Rights; Printz and Dole; Schechter; Seila Law.
• Score each Pass, Weak or Fail, with one sentence of reason. It tells you where the lawyers will fight, not how the Court will rule.
• Apply it to your own side's bills first. A principle that applies only to the other party is a weapon, not a principle.
• Next time a politician unveils a plan, ask in writing: "Which clause of the Constitution authorizes this?" and keep the answer.