Show 01 - Government Part One

Welcome to the Disability Law Lowdown Podcast. Here's your host, Jacquie Brennan.

Jacquie Brennan: Welcome to our podcast. This podcast is brought to you by the Disability Business Technical Assistance Center, DBTAC, which is part of a network of ten centers funded through NIDRR that offer technical assistance and training regarding the Americans With Disabilities Act and other disability related laws. Today's podcast is called Government 101 and the presenter is me, Jacquie Brennan. I am an attorney who works with the DBTAC Southwest ADA Center.

The podcast is a new technology for us and so we are starting off the podcasts with a three-part legal series. The purpose of this legal series is to provide a framework for you of how our government, law, and legal system all work together so that when we get to describing other laws later you will have a foundation to understand the environment in which the ADA functions and thrives. I usually describe this as what you probably learned in high school government class and maybe forgot as soon as the final was over.

I am an attorney and I teach people about the Americans with Disabilities Act and other disability laws as part of my job. I also teach paralegal students about all different kinds of laws. One thing I've discovered is that it's a lot easier to understand specific laws and how they work if you understand the system of government, how laws get made, and a little about he judicial system in our country before you tackle the specific law. Today's podcast is Government 101 and we will just discuss the basics of our federal government and the United States Constitution. So here we go.

All governments have what is called a fundamental law. The fundamental law is the law on which all future laws for that government are based or at least the future laws must not conflict with the fundamental law. For our federal government, the federal fundamental law is the United States Constitution. For state governments, the state's fundamental law is the constitution of that particular state. For municipalities, the fundamental law is usually called a charter. So, when future laws come along they must be based on, and cannot conflict with, the fundamental law of the government entity.

Since I am probably not in your state or city, I am not going to attempt to discuss fundamental state and local law where you live, but I can talk about the United States Constitution. Now we definitely do not have time to talk about the Constitution in great detail but we will talk about some of the parts of the Constitution that provide the basis for many of our laws and court decisions. Most of these you've probably heard of but may not really be able to explain so I hope that this explanation will help.

First, there's the Supremacy Clause. This is in the Constitution and it basically says that the Constitution and the laws of the United States shall be the supreme law of the land. And if federal law conflicts with anything in the constitutions or any laws of any state, then federal law trumps state law. So, that means that federal law, and that include statues, regulations, treaties, case law, and we'll learn more about the different kinds of laws and how they are created in the second podcast in this series, that any federal law will trump any state law that conflicts with the federal law. It's important to get the nuance of this. Sometimes people say, well federal law trumps state law as if that were the end of the sentence, but it isn't. Federal law trumps state law only where state law conflicts with federal law.

This brings us to another concept called federalism. Under federalism, power is shared between two separate government entities, the federal government and the state government of the fifty sates. The powers of the federal government are established by the Constitution which, remember, under the Supremacy Clause, is the supreme law of the land. The federal government is known as a limited government because its powers are restricted to those that are stated in the Constitution. Article One, Section Eight of the Constitution actually lists the fed government's explicit powers. Some of those powers are, the power to collect federal taxes, to regulate interstate commerce, to establish post offices, to declare war, to print and coin money. If a power is not given, either explicitly or implied at least, to the federal government then it belongs to the states.

Some powers of the federal government are exclusive; only the federal government may exercise them. For example, only the federal government can print money or raise an army. But other powers are called concurrent powers and they can be exercised by both the state and the federal governments. Like, both governments may collect taxes. Article One, Section Ten of the Constitution provides a list of powers which the states may not exercise. For example, the states cannot tax goods that are transported from one state to another and a state cannot enter into a treaty with another country.

State laws, those that the Constitution says are within the power of the state usually have the most direct impact on peoples' lives. They touch upon such diverse subjects as traffic regulations, insurance, divorce, workers' compensation, licensing and of course many others. So, if for example, Florida decided it would declare war on Cuba, well, such a declaration would be unconstitutional because the power to declare war is a power delegated only to the federal government. If the United States Congress decided to pass a law that said, in order to get a divorce, all anyone in the United States needed to do was fill out a form and send it to a post office in Washington, DC that, too, would be unconstitutional because the federal government is not given the power, under the Constitution, to make laws that regulate marriage and divorce. Those laws are for the states to make.

The Commerce Clause in the Constitution gives Congress the power to regulate commerce with foreign nations and among the states. This clause has greater impact on business than any other part of the Constitution because it authorizes the federal government to regulate commerce. Originally it was meant to foster the develop a national market and free trade among the states. It gives Congress the authority to regulate both actual interstate commerce and even activities that affect interstate commerce.

That last part is important because when you first hear 'commerce clause' you probably immediately get a little bored because 'commerce clause' just sounds like it's going to be all about business and maybe not anything that directly impacts you. But because it gives the Congress the power to regulate activities that regulate interstate commerce, it actually can affect even civil rights laws. In a famous case back in 1964, Congress had passed the Civil Rights Act of 1964. It said among other things the motels and hotels,

places of public accommodation, could not discriminate against guests based on their race. Now prior to the enactment of the Civil Rights Act of 1964, the Heart of Atlanta Motel had always refused to rent rooms to African Americans. The owner of the Heart of Atlanta Motel actually brought an action to have the Civil Rights Act of 1964 declared unconstitutional. He said that Congress, in passing the Civil Rights Act, had exceeded its power to regulate commerce under the Commerce Clause of the Constitution.

The Supreme Court disagreed and said that this was indeed an interstate matter because this hotel was on an interstate, was near two interstates in fact, advertised to travelers. Clearly motels serve the purpose in fact of interstate commerce in that they typically rent rooms to people from other states. So, the Supreme Court held the Civil Rights Act of 1964 was constitutional under the authority given to Congress to regulate interstate commerce.

You probably remember that the first ten amendments to the Constitution are known as the Bill of Rights. One of the most honored and most misunderstood rights in the first amendment is the right to freedom of speech. What is really misunderstood about the freedom of speech is that it applies to governments and only to governments. By that I mean the government is not allowed to limit protected speech, but individuals and private businesses can limit speech without violating the Bill of Rights. Let's say for example, if I have a business and it's open to the public and I have a sign on the door that says 'no one may use the word 'dug' or any other word that starts with D inside this business. If you do, you must leave immediately.' Even thought that limits your free speech in that I'm not letting you use lots of words you might want to use, I'm not violating your freedom of speech because I am not a government entity.

Even for governments, though, not all speech is created equally. The Supreme Court decided there are three different categories of speech and each of those have different protections. There is fully protected speech which the government cannot prohibit or regulate, and this includes speech which does not fall into any other categories. An example would be that the government could not enact a law forbidding the citizens from criticizing the current administration.

There is limited protected speech, meaning that the government cannot forbid the type of speech but it can restrict this type of speech in terms of time, place, and manner. Examples of this include offensive speech which offends many members of society and commercial speech such as advertising.

Then there's unprotected speech which actually can be totally forbidden by the government without violating the Free Speech Amendment. Included in this category, things like dangerous speech which is like yelling 'fire' in a crowded theater when there is no fire, or fighting words that are designed to provoke a hostile or violent response, or speech that incites the revolutionary overthrow of the government, defamatory language, child pornography, and obscene speech. So that covers free speech.

Another well-known freedom in that First Amendment is the freedom of religion. There are actually two separate religion clauses in the First Amendment. The first is the Establishment Clause which prohibits the government from either establishing a state religion or from promoting one religion over another. The second is the Free Exercise Clause which prohibits the government from interfering with the free exercise of religion in the United States. It also prevents the government from enacting laws that prohibit or inhibit individuals from practicing their chosen religion.

For example, in a Supreme Court case in 1993, the Court ruled that a city ordinance that prohibited ritual sacrifice of chickens during a church service violated the Free Exercise Clause. But obviously this right to be free from government interference is not absolute, even in religion. For example, if I say my religion requires human sacrifices, those are unlawful and they are not protected by the First Amendment.

The last Constitutional clause that I want to cover in this podcast is the Due Process Clause. It says that no person shall be deprived of life, liberty, or property without due process of the law. This is found in both the Fifth and the Fourteenth Amendments. The Fifth Amendment applies to the federal government and the Fourteenth applies to state and local governments.

There are two categories of due process, substantive and procedural. Substantive due process demands that laws be clear and not overly broad. In other words, a reasonable person must be able to understand how to comply with the law. Otherwise the law would be declared void for vagueness. So for example, if the city passed an ordinance that said no one may exhibit facial hair, that would be declared unconstitutional as void for vagueness because a reasonable person could not clearly determine whether his or her conduct violates that law.

Procedural due process demands that the government give a person proper notice and hearing of a legal action before a person is deprived of life, liberty, or property. The government action must be fair. If the government wants to build a municipal airport, for example, where your house is, it can't just bulldoze your house while you're at work one day. It must give you notice and it must provide you the opportunity to have a hearing. And under the Just Compensation Clause of the Fifth Amendment, it must also pay you just compensation before it can take your property.

Most of you probably remember that there are three branches of government. Our Constitution came up with this scheme and part of the idea was to give different powers to different branches so that a system of checks and balances could emerge that would keep any one branch from getting too much power. So, can you name the three branches' If you said Executive, Legislative, and Judicial, then give yourself a prize. Now, do you remember what goes on in each branch' Okay, we're going to go over that.

First, I want to say that law is made in each of the three branches of government, but we're going to focus more on law in the next podcast in this series so we won't be talking about that right now. This discussion of the branches will focus more on what is part of each branch and how the system of checks and balances works.

The legislative branch is what is called bicameral which means it has two chambers, the Senate and the House of Representatives which is collectively referred to as Congress. The Senate is smaller than the House because each state gets two Senators, so there are a hundred Senators. The number of Representatives in the House is determined by the population of each state. There are currently 435 Representatives in Congress. The executive branch consists of the President, the Vice President, the Cabinet, and all of the administrative agencies. The judicial branch consists of the entire federal court system which we'll go into in more detail in the third part of this podcast series.

Some checks and balances are built into the Constitution to ensure that no one branch of the federal government becomes too powerful. Some of the checks and balances are: the judicial branch has the authority to examine what the other two branches do to determine whether the acts are constitutional, the executive branch can enter into treaties with foreign governments but only with the advice and consent of the Senate which is part of the legislative branch, the legislative branch is authorized to create federal courts and to enact statues that change the law that is made by the judicial branch. The judicial branch is full of judges, but in the federal system the executive branch appoints the judges and the appointments then have to be confirmed by the legislative branch. The legislative branch passes laws but many of these laws are statues that require administrative agencies which are part of the executive branch and they create implementing regulations.

So how does the system of checks and balances work' There are lots of examples. Let's go through one. Congress passes a bill, and let's just say that it is unconstitutional because it is void for vagueness. Let's say it says something like 'it is against the law to have your animals in or around your property unless they are licensed.' Clearly this is going to be void for vagueness because what about the squirrels who come onto my property' Do the fish in my pond count as animals? How about the raccoon that found its way into my attic the other night or the occasional mouse? So, this law is going to be void for vagueness, but for this example, we're just going to say Congress passed that law. Which other branch might provide the checks and balances?

Well, it could be the executive branch because the President can veto the bill, so that's one check. But suppose the President vetoes it. Is it all over then? No, of course not because there's a check for that, too. The bill goes back to Congress and it can override the veto. So then is that it? They override it then we have the law like that? Nope, because there's another check by the judicial branch who can say that the law is unconstitutional which essentially voids the law. And when it comes to constitutionality, the U.S. Supreme Court gets the final word on that question. But, if Congress wanted to, they could take another look at the law and see if they could write it in such a way that it would still do what they want, like encourage people to license their pets, but pass constitutional muster with the judicial branch. That's just one scenario and how the system of checks and balances works, but it's important to remember that it was set up to work that way by the founders of our country to keep one branch from having too much power. Still, all the branches have to diligently do their jobs for this to work.

So that's a very brief overview of the branches of government and the United States Constitution. The next podcast will cover the history of American law, the sources of law and how laws get made, enforced and interpreted. In the meantime, if you have any questions about disability law, contact the DBTAC ADA center that is closest to you by calling 1-800-949-4232 or find us on the web at DBTAC.vcu.edu.

Have a dazzling day!