Michael Ioane

Article III

Practical Article

Structural Legal Arguments in Constitutional Law

Constitutional arguments fall into two broad categories: rights-based arguments, claiming a specific individual protection has been violated, and structural arguments, claiming a government action exceeds the authority properly allocated to the branch or level of government that took it, regardless of whether any individual right is separately implicated. Structural arguments are frequently underused relative to rights-based claims, despite often being the more direct and more successful path to challenging a given government action.

Michael Ioane treats structural arguments as a distinct and often underutilized category of legal reasoning: rather than asking whether a government action burdens a specific right, a structural argument asks whether the actor taking the action ever had the authority to take it at all.

Separation of Powers Arguments

A separation of powers argument contends that one branch of government has exercised authority constitutionally reserved to another, for example, an executive agency issuing a rule that functions as legislation without a sufficient underlying statutory delegation, or a legislative body attempting to exercise a function reserved to the judiciary. These arguments succeed by showing the actor lacked the constitutional authority to act in that capacity, independent of whether the resulting substantive rule would otherwise be permissible if adopted by the proper branch.

Federalism and Enumerated Powers Arguments

A federalism argument contends that the federal government has exercised authority not actually granted to it under Article I’s enumerated powers, or has intruded on authority reserved to the states under the Tenth Amendment. These arguments require careful tracing of the specific enumerated power the federal government claims to be exercising and a demonstration that the claimed authority does not, in fact, support the specific action taken.

Non-Delegation Arguments

A non-delegation argument contends that Congress has delegated legislative authority to an executive agency without supplying a sufficiently intelligible principle to guide and constrain how that authority may be used, effectively allowing the agency to legislate on its own. While the non-delegation doctrine has historically been applied narrowly by federal courts, it has seen renewed attention in recent years as a distinct structural avenue for challenging expansive agency rulemaking.

Why Structural Arguments Are Strategically Distinct

Structural arguments often avoid the demanding standing and scrutiny analysis that accompanies many rights-based claims, since the question is whether the actor had authority at all, not how heavily a specific right was burdened. This can make a well-supported structural argument a more direct route to invalidating a government action than a comparable rights-based claim, particularly where the underlying authority question is clear-cut even if the rights question would be closely contested.

Anti-Commandeering as a Federalism-Based Structural Argument

A specific and well-established federalism argument, the anti-commandeering doctrine, holds that the federal government may not compel state legislatures to enact specific legislation or compel state executive officials to administer a federal regulatory program directly, established in New York v. United States (1992) and extended to state executive officials in Printz v. United States (1997). This doctrine illustrates how a structural argument can succeed even where the underlying federal policy goal is otherwise constitutionally permissible, because the specific mechanism used to implement it exceeded the federal government’s structural authority over the states.

Distinguishing Legitimate Structural Arguments from Frivolous Ones

It is important to distinguish legitimate structural arguments, grounded in recognized doctrines like separation of powers, federalism, anti-commandeering, and non-delegation, from a separate category of pseudo-legal theories that superficially resemble structural arguments but have no accepted legal basis, including claims that an individual can unilaterally opt out of government jurisdiction through specific wording, or that ordinary court proceedings lack authority based on flag fringe or commercial law theories. Courts have uniformly rejected this second category as frivolous, and structural legal arguments only carry weight when grounded in the actual, recognized doctrines federal courts have developed and applied.

Conclusion

Structural legal arguments, separation of powers, federalism, anti-commandeering, and non-delegation among them, offer a distinct and often more direct avenue for challenging government authority than rights-based claims alone, by asking whether the acting branch or level of government had valid authority in the first place rather than whether a specific right was burdened. Recognizing when a legitimate structural argument is available, and distinguishing it from frivolous pseudo-legal theories, is an essential complement to any rights-based constitutional strategy.

The information in this article reflects general constitutional and legal principles and is provided for educational purposes only. It should not be interpreted as individualized legal advice.

Michael Ioane | MichaelIoane.com