Can the Government Do That?

In the United States, the government and governmental officials cannot simply do whatever they want. All government action is restrained by the U.S. Constitution, state constitutions, and other laws. This concept is called the “Rule of Law,” meaning we are governed by laws, not by officials.

The U.S. Constitution is the “supreme law of the land” and no government officials may violate it, and Congress and state and local lawmakers can’t pass laws that contradict it. This area of law is called “Constitutional Law.”

(Note: the Constitution generally only applies to the government and government officials, NOT private entities like individuals or companies. But other laws restrict the behavior of private entities in similar ways.)

See more Law Basics.

Can the government ban abortion?

See our Guide to Reproductive Rights.

Can the government force people to be vaccinated from a disease?

Yes, the government has the power to require people to be vaccinated from a disease, if it is in the interest of public health. This is based on the state’s police power, which gives state governments general power to protect safety and health. Thus, it does not violate the Constitution.¹Jacobson case (1905)

Can the government order everyone to quarantine?

States (and by extension, local governments) clearly have the power to quarantine people, even the entire population. This is also based on the state’s police power.

As for the federal government, this is less clear. They can most likely quarantine individuals, but not the entire country. But it has never been decided by the courts.

Can the military be used to carry out domestic law enforcement?

Under the Posse Comitatus Act of 1878, the U.S. military is generally not allowed to carry out domestic law enforcement tasks. However, there are several exceptions, including:

• National Guard units, state defense forces, and naval militias while under the authority of the governor of a state
• Federal troops used in accordance to the Insurrection Act (which has been invoked 23 times)
• Provide surveillance, intelligence gathering, observation, and equipment for domestic law enforcement on operations such as drug interdiction and counter-terrorism missions
• Under the Enforcement Acts of 1870 and 1871, the president may use military forces when state authorities are either unable or unwilling to suppress violence in opposition to citizens’ constitutional rights (as when President Eisenhower sent federal troops to Little Rock, Arkansas to desegregate schools under Brown v Board of Education)

What is martial law?

Martial law occurs when the military carries out civil government functions instead of the normal civilian elected government. See more at our page What is Martial Law?

What is a “state of emergency” declaration?

Executives at the national, state, and even local levels can declare a “state of emergency” for various reasons, often for the purpose of immediately diverting funds into an area of priority, such as relief after a natural or human disaster. Under the National Emergencies Act,²50 U.S.C. § 1601–1651) the President can activate various special powers, ranging from suspending laws regulating chemical and biological weapons, including the ban on human testing³(50 U.S.C. § 1515, passed 1969); to suspending the Clean Air Act⁴(42 U.S.C. (f) § 7410 (f), passed 1977) to authorizing and constructing military construction projects⁵10 U.S.C. (a) § 2808 (a), passed 1982 using any existing defense appropriations for such military constructions.

However, courts have pushed back on emergency declarations in the past.⁶Youngstown v Sawyer

Can Trump legally declare a “national emergency” to build the border wall?

It’s unclear, and 16 states are now suing the Trump administration over this declaration. The lawsuit argues that Trump’s action is unconstitutional because it violates Congress’ power to set spending priorities.

Update May 2019: A judge has blocked the Trump administration’s attempt to use emergency powers to fund the wall. The case will likely be ultimately decided in the Supreme Court.

Can the president pardon whoever he wants for any crime?

The President can pardon anyone for federal crimes, but not for crimes based on state or local laws.⁷Article Two of the United States Constitution(Section 2, Clause 1) Pardoned individuals are not required to serve any jail time or other punishment.

Can government officials be prosecuted for crimes?

Generally, yes, essentially the same as civilians. However, it is debated whether the President can be prosecuted while still in office, or if he or she must first be impeached and removed from office, and then prosecuted.

Can the government restrict freedom of speech?

The government is very limited in restricting freedom of speech, but there are some things it can do. See our Guide to Free Speech.

Can the government force someone to testify?

If prosecutors or a judge issue a “subpoena” to compel you to testify in court, then you generally must appear. However you may be able to “plead the 5th” at the hearing. See our Guide to Free Speech.

Can government officials block people from social media?

No. See our Guide to Internet Law.

Can police arrest you whenever they want?

No. See our Guide to Police Conduct.

Can the government deport anyone they want?

No, see our Guide to Immigration.

Can the government block people from certain countries from coming into the U.S.?

Yes, again see our Guide to Immigration & Travel.

Can the government collect and store records of Americans who were not suspected of a crime?

No. See our Guide to Privacy Law.

Can the government require me to register for the military?

Yes, if you are a male. Under the Military Selective Service Act, men in the U.S. ages 18 through 25 must register in case the country needs a military draft.

Currently, women do not need to register. But recently a federal judge ruled that a draft only for men violates the Constitution. See our Guide to Civil Rights for more. The government is currently considering whether to now require women to register as well.

Are military personnel always required to follow orders no matter what?

No. Although the military generally must follow orders from higher-ups, each person also has an obligation to refuse unlawful orders.

Can the government restrict my property rights?

See our Guide to Property Rights.

Can a state or city make a law that affects other states or individuals or companies in other states?

Yes, as long as the law does not favor “in-state economic interests by burdening out-of-state competitors.”⁸New Energy Co. v. Limbach, 486 U.S. 269 (1988) Most recently, the Supreme Court upheld the authority of states (and cities) to regulate what is sold within their borders, even such regulations may impact individuals or companies in other states. California voters passed Proposition 12 to ban the sale of pork from pigs that were “confined in a cruel manner.” Although this affected pork producers in other states, the Supreme Court said this fact did not mean that the law was a violation of the “dormant commerce clause.”

Can a state make a law that favors in-state companies over out-of-state companies?

No, states may not engage in such economic protectionism, as this would violate the “dormant commerce clause,” which is implied based on the interstate commerce clause. For example, Michigan passed a law allowing in-state wineries to sell directly to consumers through the mail, but prohibited out-of-state wineries from doing so. This law was found unconstitutional by the Supreme Court under the dormant commerce clause.

Resources

If the government is taking action against you that is unlawful, you should speak to a lawyer.

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