D. LIMITS ON LEGISLATIVE ACTION
There are a variety of constitutional, statutory and other limits on the Legislature’s power. The following
discussion provides a very brief overview of some of the various types of limitations. Legislative attorneys in
the Office of Policy and Legal Analysis can provide specific analysis of limitations that may affect particular
legislative proposals.
1. Constitutional Limitations
The Legislature must operate within the limits of the United States Constitution and the Constitution of Maine.
There are many limits on legislative power, and, in many instances, there are significant amounts of case law that
define those constitutional limitations. Consequently, a comprehensive discussion in this handbook is not possible.
What follows is a brief overview of a few of some of the more commonly encountered constitutional limitations;
there are other constitutional limitations that are not discussed here. When constitutional issues arise, a detailed
legal review and analysis may be required.
a. Equal protection. The United States Constitution, Amendment XIV, Section 1 (“Equal Protection Clause”),
forbids the State to deny to any person the equal protection of the laws (see also Constitution of Maine, Article
I, Section 6-A). Courts have developed a series of judicial tests that are applied when laws are challenged under
this section. It is a very complex area of constitutional law. In general, however, it may be said that laws that
treat persons differently based on race or national origin or the exercise of fundamental constitutional rights
are presumed to violate the Equal Protection Clause and will be found unconstitutional unless the State has a legitimate
and very compelling justification for exceptions. Laws that treat persons differently based on gender, alienage
or illegitimacy, while not presumed to be unconstitutional, must serve important and legitimate governmental objectives
in order to withstand constitutional scrutiny. Laws that treat persons differently based on other characteristics
or in the exercise of nonfundamental rights are generally presumed to be constitutional, unless there is no rational
basis for the differing treatment.
b. Interstate commerce. The United States Constitution, Article I, Section 8, clause 3 (“Commerce Clause”)
grants to Congress the exclusive power to regulate interstate commerce. This provision has a number of important
ramifications. One of the more important provisions is the fact that it severely limits state action that burdens
interstate commerce. Congress can, and sometimes does, specifically permit state regulation of interstate commerce.
Without congressional permission, state regulation that burdens interstate commerce is generally impermissible.
There are a number of types of regulation that can burden interstate commerce, e.g., restrictions on access by
out-of-state suppliers to local markets; restrictions on access by out-of-state buyers to local commodities and
resources; restrictions on interstate transportation; restrictions on personal mobility across state lines; and
state taxation of interstate commerce. It is important to note that state regulation in these and other areas affecting
interstate commerce is not necessarily unconstitutional; detailed analysis is often required to determine whether
the regulation actually violates the Commerce Clause.
c. Due process. The Fourteenth Amendment to the United States Constitution prohibits the State from depriving
any person of life, liberty or property without due process of law (see also the Constitution of Maine, Article
I, Section 6-A). There are a variety of limitations that this clause imposes on state activities. Some important
limitations to the Legislature fall under the branch of due process constitutional law called “substantive due
process.” In general, substantive due process requires the State to have a legitimate and very compelling need
for enacting any law that affects people’s exercise of certain fundamental rights, such as the right to freely
associate, the right to vote, the right to interstate travel and the right to privacy. This is a highly complex
area of constitutional law; a detailed legal analysis may be required to determine whether a law would actually
violate the Due Process Clause.
d. Free speech. The First Amendment to the United States Constitution (interpreted to apply to state actions
through the Fourteenth Amendment) forbids laws that abridge the freedom of speech or of the press (see also the
Constitution of Maine, Article I, Section 4). While the prohibition appears on its face to be absolute, there are
certain types of speech that may be regulated and, in some limited cases, prohibited. For instance, speech that
is protected (most speech) may be restricted to some extent with regard to the time, place and manner in which
the speech occurs. Additionally, courts have held that defamatory statements, statements creating a clear and present
danger, fighting words and obscenity are not protected under the First Amendment. Of course, determining what actually
falls within these categories of “unprotected” speech is not a simple matter. This is a highly complex area of
constitutional law; a detailed legal analysis may be required to determine whether a law actually violates the
First Amendment.
e. Delegation of legislative authority. The constitutional prohibition on the delegation of legislative
authority is not found in a single constitutional provision. Relevant provisions of the Constitution of Maine include
Article III, Sections 1-2; Article IV, Part Third, Section 1; and Article IX, Section 9. The basic principle is
that the Legislature may not delegate to other entities powers assigned to it under the Constitution of Maine.
Situations in which the issue may arise include the following: granting to an executive agency unbounded discretion
in adopting rules to implement broad legislative policies; making the effectiveness of legislation dependent upon
some event that has no independent significance; delegating to a subunit of the Legislature the functions of the
full Legislature; surrendering the power to tax. The doctrine of delegation of legislative authority is complex;
a detailed legal analysis may be required to determine whether a law violates the prohibition on delegation of
legislative authority.
f. Binding future Legislatures. It is a commonly accepted principle of law that one Legislature may not,
by enactment of a law, restrict the actions of a future Legislature. Such restrictions, if they are to be binding,
must be found in the Constitution of Maine, the Constitution of the United States or federal law. That does not
mean an attempt to bind may not be enacted; only that it lacks a legal mechanism for enforcement. Enactment of
a statute purporting to require a future Legislature to take a specific action is no more than an advisory expression
of legislative intent. A future Legislature is free to notwithstand, repeal, or, in some cases, ignore the law.
g. State mandates. The Constitution of Maine, Article IX, Section 21, prohibits the State from requiring
any local unit of government to expand or modify the unit’s activities so as to necessitate additional expenditures
from local revenues unless the State annually provides 90% of the funding. This provision was approved in 1992.
It authorizes the Legislature to override the provision with a two-thirds vote of all members elected to each chamber.
h. Property tax exemptions. The Constitution of Maine, Article IV, Part Third, Section 23, provides that the
Legislature must annually reimburse each municipality for not less than 50% of the property tax revenue loss suffered
by the municipality as a result of statutory property tax exemptions or credits enacted after April 1, 1978.
i. Equal taxation. The Constitution of Maine, Article IX, Section 8, prohibits the establishment of different
rates of assessment for real and personal property within the same property classes.
j. Opinion of the justices. The Constitution of Maine, Article VI, Section 3, provides that the Justices
of the Maine Supreme Judicial Court must give their opinion on "important questions of law, and upon solemn
occasions" to the Senate, the House or the Governor. Typically, such opinions interpret provisions of the
Constitution of Maine as they apply to pending legislation or other proposed legislative action. Though opinions
of the justices are only opinions, have no legal force or effect and are not binding on the requesting body or
on the court in future cases, they are commonly relied upon by the Legislature in assessing the appropriate course
of action.
2. Federal Laws
Congressional acts limit the actions of state legislatures in two ways. Under the “Supremacy Clause” of the United
States Constitution (Article VI, Section 2), the State may not pass a law that contradicts or interferes with the
operation of legislation passed by Congress. In case of a conflict, the federal law is said to pre-empt state law.
Also, Congress may place limits on how the State administers federally funded programs. The spending power is perhaps
the most frequent and powerful source of federal limitations on state action.
Examples:
· (Supremacy Clause) Congress has established a comprehensive regulatory framework governing the
safety of nuclear power plants. As a consequence, the State is pre-empted from establishing safety regulations
for nuclear power plants.
· (Spending Power) Congress provides funds for the national unemployment insurance program. If, for
example, the State made certain employees of nonprofit organizations ineligible for coverage, Maine could be found
to be “out of conformity” with federal program requirements. If it were, the State could lose substantial federal
funds, and Maine employers could lose an important tax credit.
3. Legislative Rules
Legislative rules govern the legislative process, establish certain duties of certain legislative officers, establish
and govern the conduct of legislative subunits, such as the joint standing committees, and otherwise provide for
the orderly undertaking of the Legislature’s business. There are four sets of rules with which each legislator
should be familiar: Senate or House Rules, Joint Rules, Mason’s Manual of Legislative Procedure and committee rules.
Each Legislature adopts its own versions of these rules (other than Mason’s rules) at the beginning of the legislative
biennium. Since the current Legislature had not finalized its rules when this handbook was prepared, some references
to rules and rule numbers may change. Legislators should seek the advice and guidance of presiding officers, the
Secretary of the Senate, the Clerk of the House, party leaders and committee chairs on issues relating to the rules.
Copies of rules can be obtained from the Offices of the Secretary of the Senate and the Clerk of the House.
a. Senate and House Rules. The Senate and House Rules establish procedures, offices and restrictions in
each body. Senate and House Rules take precedence over the Joint Rules in governing the procedures of the respective
bodies. A sampling of Senate and House Rules follows:
· The Senate and House Rules prohibit the introduction of amendments that are not related to the original
bill (Senate Rule 504, House Rule 506).
· Senate Rule 301 establishes certain duties of the Secretary of the Senate. House Rule 301 establishes
certain dues of the Clerk of the House.
· House Rule 201 describes certain duties and powers of the Speaker of the House. The authority of the President
of the Senate is established in Senate Rule 201.
· The precedence of motions during debate is set forth in Senate Rules 502 and 506 and House Rule 503.
b. Joint Rules. The Joint Rules establish procedures and restrictions governing the transactions of business
by both chambers. For example, the Joint Rules:
· establish cloture deadlines by which legislators and others must submit bill requests (Joint Rules
202, 203 and 204);
· establish the joint standing committees, establish committee membership among senators and representatives,
outline procedures for the hiring of committee clerks, and impose requirements for public hearings (Joint Rules
301 through 305);
· establish committee reporting requirements and define the types of reports that may be issued by committees
(Joint Rules 309 and 310);
· outline the procedures for confirmation of gubernatorial appointments (Joint Rules 501 through 508);
· prohibit the reintroduction of measures in any biennium in which they have already been rejected, except
on approval of two-thirds of both chambers (Joint Rule 217); and
· require that all expressions of legislative sentiment conform to guidelines issued by the President of
the Senate and the Speaker of the House (Joint Rule 213).
c. Mason’s Manual of Legislative Procedure. Mason’s is a standard text of parliamentary rules and is
published by the National Conference of State Legislatures under the auspices of the American Society of Legislative
Clerks and Secretaries. The rules address all aspects of legislative procedure. These rules come into play only
if the body’s own rules or the Joint Rules do not cover the issue raised.
d. Committee rules. The Joint Rules require that, at the beginning of each legislative biennium, committees
adopt procedures to govern public hearings, work sessions and confirmation hearings. Committee rules may not conflict
with Senate or House Rules or the Joint Rules. Questions regarding committee procedures should be discussed with
committee chairs.