Branches and Levels of Government
Branches and Levels of Government and the United States
Government System
Branches of Government
Government has been defined as:
"The organized use of force to ensure Social Order. Every person is a "force" upon the government which serves us. As such, we must all take a stand that promotes fair and equal order in the lives of all citizens."[1]
The United States Government is rooted in the idea of "Federalism." Federalism is a system in which at least two separate branches of government share the responsibility for governing the same people and territory and is the basis for the three branches of the United States Governmental system. Federalism draws specific lines and delegates specific powers to different branches of government. Each branch of government has its own distinct purpose and powers. Each branch also shares some powers with the other branches. This principle is known as the "separation of powers." This separation reduces the risk that one branch of the government may act independently of the others and abuse its powers.
The Constitution of the United States provides that our system of government be divided into three branches:
A. The Executive Branch of Government
B. The Legislative Branch of Government
C. The Judicial Branch of Government
A. The Executive Branch of Government
The Executive branch of government is led by the President of the United States. The President is expressly given powers by Article II of the United States Constitution. The President is indirectly elected by a vote of all citizens, eighteen years old or older, in every state. The Electoral College then selects the President based on the vote in each state. There are 538 "electors" that correspond directly to the number of the members of the House of Representatives, 435 and the members of the Senate, 100, plus 3 additional electors from the District of Columbia.[2] The number of electors for each state is equal to the number of members each state has in the Congress of the United States. (Though not pledged to do so, the electors then make the choice of President and Vice President in accordance with the popular vote in their state. There have been very few instances where this has not occurred.)
The President and the Executive Branch are charged with carrying out the laws as passed by the Legislative Branch. The responsibilities of the President also include making sure that all laws are observed. The Executive Branch is composed of the President, the Vice President, the presidential advisors, and the Secretaries of each department in the Executive Branch. Under the direction of the President, all domestic affairs and foreign policy issues are directed and maintained. The President, not the Congress, has the power to appoint Federal Judges, Ambassadors, and Cabinet Members, subject to the confirmation of the United States Senate. Congress cannot limit or eliminate the President's power to make these appointments.
Article II of the Constitution also gives the President the power to remove executive branch officers, except where statutorily limited. Congress cannot prevent executive removal entirely but can require a showing of good cause if the position is one where some measure of independence from the President is desirable. This principle does not cover Cabinet positions. Congress does not retain the right to remove, for any cause, any Executive officer. This power remains with the President and the Executive Branch.[3]
Congress may, however, remove the President through the power to impeach. Impeachment itself does not remove anyone from office but does afford the House of Representatives the opportunity to vote "to impeach." If the vote passes the House of Representatives by a simple majority vote, the Senate is charged with holding a trial. A two- thirds majority of votes is required before the Senate can "impeach" and remove the President from office.
The President of the United States has the power to grant "reprieves and pardons for offenses against the United States, except in cases of impeachment." The President may pardon a person who is accused or convicted of a federal crime but holds no power regarding the violation of state law or civil as opposed to criminal offenses.
"Veto Power" is also vested in the President of the United States. The President can "veto" any bill passed by Congress. If the President does not sign a bill within ten days of receiving it, it automatically becomes law. If the President does not sign or veto a bill while Congress is not in session, then the bill dies by "pocket veto." Congress can still pass the vetoed bill into law if a two-thirds vote for the bill takes place in both the House of Representatives and the Senate of the United States.
Article II of the Constitution of the United States gives the President broad discretion over matters of foreign policy. The most important means of establishing foreign policy are through executive agreements and treaties. Executive agreements, though not specifically authorized by the Constitution, are vested in the President's powers. Article II, Section two, clause two gives the President the "power, by and with the advice and consent of the Senate, to make Treaties." These treaties must be ratified by a two-thirds majority vote of the Senate. The advantage of having a treaty verses an executive agreement is that only treaties can "surmount" any existing federal law.
NOTE: In no case will state law interferes with the terms of an Executive Agreement or a Treaty. States cannot "invalidate" the President's power to conduct foreign issues. States cannot nullify treaties.
Within the scope of Presidential power, not specifically named in the United States Constitution, is the President's power to issue Executive Orders. An "Executive Order" is "a Presidential policy directive that implements or interprets a federal statute, a constitutional provision or a treaty."[4] Executive Orders do not require the approval of Congress. Presidents have issued these orders to set policy, avoiding public debate and/or opposition. Most executive orders are issued under specific statutory authority and have the force and effect of law. Executive Orders often omit to cite a specific constitutional provision as an authority. Though aimed at public officials, Executive Orders often have affected private interests. Executive Order number 11,246, prohibiting discrimination in federal procurement and employment, affects private interests by directing the actions of public officials. This Order affects the interests of federal contractors and their employees.[5]
Article II Section 2 of the United States Constitution states that: "the President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several states when called into the actual Service of the United States."[6] The President has the power to commit forces to defend against sudden attacks upon the United States. NOTE: Only Congress has the authority to "formally" declare war upon another country.
B. The Legislative Branch of Government
Article I of the United States Constitution created the Congress of the United States and granted its powers. Article I Section 8 lists the powers granted to Congress, which include:
The Power to:
1. Borrow Money
2. Regulate Commerce
3. Coin Money
4. Establish Courts below the Supreme Court
5. Establish an Army and Navy
6. Tax and Spend
7. Declare War
8. Make all laws which shall be "necessary and proper."
Congress can make not act "except for the powers expressly granted in Article I or a constitutional amendment or those therein implied."[7]
The Tenth Amendment to the Constitution was intended to limit the powers granted to Congress by Article I and, thereby, protect the states. This amendment states:
"The Powers not delegated to the United States by the Constitution nor
prohibited by it to the States, are reserved to the States, respectively, or
to the people."[8]
Simply put, Congress cannot force a state to pass any regulations or legislation. Congress can, under its enumerated powers, effect change in the states by attaching conditions on the receipt of federal funds that achieve the goal of instituting policies using the power of the General Welfare Clause or the Commerce Clause.[9]
Congress is also granted power under the Due Process Clause and the Equal Protection Clause in the Fourteenth Amendment. Section Five of the Fourteenth Amendment grants Congress "the power to enforce" the provisions found inside the Fourteenth Amendment while also not allowing Congress to expand or create any new rights. Congress may also delegate legislative powers granted to it by the Constitution to other branches of the United States Government. When this is done, Congress is required to give guidance to the designated branch as to the use of that delegation.
Congress possesses the power to remove the President and other Executive officers through the process of Impeachment. An impeachment is a trial held by the Senate after the House of Representatives first passes a bill of Impeachment. The House of Representatives has the sole power to pass such a bill. If the Senate tries the Bill of Impeachment, the Chief Justice of the Supreme Court shall preside. No person shall be convicted without two-thirds of the Senators voting in favor of the bill.
C. The Judicial Branch of Government
Article III of the United States Constitution places judicial power of the United States "in one Supreme court, and in such inferior courts as the Congress may from time to time ordain and establish."[10] Article III Section 2 gives federal judicial power to "cases and controversies" in several areas. The Supreme Court maintains final jurisdiction over Constitutional issues and issues arising out of federal law.
The Constitution created the Supreme Court, the court of "final appeals".[11] The Supreme Court hears fewer than five per-cent of the cases in which a "writ of certiorari"(means the court will hear the case) is sought. These cases come to the Supreme Court from the lower federal courts in the judicial system. The lower federal court system was created by Congressional legislation in 1789.
The "first" federal courts are the District Courts. They are the courts of original jurisdiction where cases are appealed. There is always at least one district court in each state, with the highest number of district courts per state being four. The number of district courts a state has depends on the population of the state as well as the legal activity of each state. There are ninety-four Federal Districts, including the District of Columbia and Puerto Rico. These districts also include the territories of Guam, the Virgin Islands, and the Northern Mariana Islands.
The Intermediate Appeals Courts in the judicial system are the Federal Circuit Courts, also known as the Courts of Appeal. These courts are located in circuits by geographic area all over the country. In the United States, there are currently thirteen circuits.
Judges on all federal courts are appointed by the President of the United States. These judges serve on the federal courts for life. Although the President has the Constitutional authority to appoint these judges for life terms, each person appointed must be confirmed by a majority vote of the United States Senate. Federal judges can also be impeached and removed from office for "treason, bribery, and other high crimes and misdemeanors."
One of the most important functions of the federal court is to decide if acts passed by Congress are constitutional. This function is known as Judicial Review and was fully established through Marbury v. Madison, 5 U.S. 137 (1803).[12] William Marbury and others appointed to government posts were created by Congress in the final days of the Presidency of John Adams. The appointments were never fully finalized. Marbury sought to use an act of Congress, Section 13 of the Judiciary Act of 1789, to sue James Madison, newly named Secretary of State under incoming President Thomas Jefferson, to secure his appointment as well as others whose appointments were not recognized by the Jefferson Administration. The Supreme Court ruled unanimously in favor of Marbury, stating that he was entitled to his appointment. The Court further stated that it was not able to grant the appointment because:
"Section 13 of the Judiciary Act of 1789 conflicted with Article III Section Two of the United States Constitution and was therefore null and void."[13]
In this one decision, the Supreme Court established two important principles:
1. The United States Constitution is the highest law of the land, and any law conflicting with the Constitution "necessarily" must be struck down.
AND
2. The Supreme Court had claimed the right, as the highest court of the Judiciary System of the United States, to decide whether a law is in conflict with the United States Constitution.[14]
Marbury v. Madison established that the federal courts have the power to render "null and void" acts of Congress found to be unconstitutional.
The Supreme Court can review the constitutionality of an act of Congress as the court of "original jurisdiction." This means that in certain categories of cases, the parties can bring cases directly to the Supreme Court without going through the lower courts first. These cases are clearly defined in 28 United States Code 1251, which states:
a. The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more states.
b. The Supreme Court shall have original but not exclusive jurisdiction of:
(1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
(2) All controversies between the United States and a State;
(3) All actions or proceedings by a State against citizens of another State or against aliens.[15]
The filing of these cases is covered under the "Rules of the Supreme Court of the United States, Part IV-Other Jurisdiction, Rule 17"[16]
To this day, there are always differences of opinion over the role that all Federal courts should play in our government system. This is especially true for the Supreme Court. There are two distinct schools of thought which many feel should guide the courts. They are "Judicial Activism" and "Judicial Restraint."
Judicial activism concerns applying laws in new ways to suit current situations. Judicial Activists see this as the ultimate responsibility of the courts. Judicial Activists state: "What do the words in the Constitution mean in our time? They recognize that the Constitution is a document with fluid meaning, with adaptive rather than static, unchanging meaning.[17] Thus, the Constitution is applicable to current and modern legal needs.
Those who believe in "Judicial Restraint" believe that activism on the part of judges turns courts into law makers, something that should be left solely to the Legislative branch of government. Judicial Restraint calls for what many terms "strict interpretation" of the Constitution as written without regarding current and modern legal needs.
The framers of the United States could not have anticipated all of the situations that have been faced or would be faced by the ever-changing United States. They did, however, seem to give our form of government fluidity by establishing the three branches and granting each branch adaptable powers in the Constitution of the United States. The Framers provided checks and balances so that power could not be concentrated in one branch of government alone. The Branches of government provide for the continuing evolution of the relationship between the Federal government and the states while ensuring all citizens have the protections granted to them in the Constitution through our Federal government system.
Levels of Government
As stated by KaLyn Villaneda in her article "The Levels of the United States Government":
"While citizens of the United States are lucky to enjoy many of the freedoms of democracy, the belief that the U.S. government is a democracy is a fallacy. The type of government established by the U. S. Constitution is actually known as a federal republic. Under this system of government, citizens have the ultimate power given to them by the right to choose their representatives through the democratic process of voting.[18]
In the United States system of government, there are three "levels" of government:
Federal Government:
The Federal Government is the highest level of government in the United States of America. The Federal Government derives its powers directly from the United States Constitution and Federal Codes or Federal Laws. NOTE: The United States Constitution and all Federal Codes or Federal Laws are the supreme laws of the land. No State Constitutions or laws or local charters or ordinances can violate or supersede the United States Constitution and Federal Codes or Federal Laws.
State Government:
The power of the fifty states is established and granted by the Federal Government through the United States Constitution through the Tenth Amendment. The Tenth Amendment states:
Amendment 10- Powers reserved to the States or to the PEOPLE "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively, or to the people."[19]
States establish state laws and codes through the establishment of state constitutions. NOTE: State Constitutions and state laws or state codes cannot supersede nor violate the United States Constitution and the Federal Codes or Federal Laws. The United States Constitution and Federal Codes or Federal Laws are always the supreme laws of the land.
Local Government:
Local governments include counties, cities, towns, and municipalities. They derive their powers from those granted and established by the laws of the state where the locality exists. Powers granted are to exist as a local entity, as well as to govern local affairs. State constitutions can set forth the procedures under which local governments operate OR grant local governments the ability to create their own rules and ordinances. This is done by the types of charters the entities are allowed to establish under the laws of their respective states.
A charter is the "constitution" or governing document of a local government.
NOTE: Local government powers cannot violate or supersede the state constitutions and the state codes or state laws of the state where the entity is located. Local government powers cannot supersede or violate the United States Constitution and Federal Codes or Federal Laws. The United States Constitution and Federal Codes or Federal Laws are always the supreme laws of the land.
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[1] Day, Glenn, "Separation of Powers and Checks and Balances," Lesson Plan, Mooresville High School, Mooresville, Indiana, www.educationworld.com/archives, 10/3/2015 pgs.1-2
[2] "Electoral College (United States)" Wikipedia, The Free Encyclopedia, May 15, 2016, p.1
[3] "Browsher v. Synar", 478 U.S. 714, 1986
[4] "Executive Order" Wikipedia, The Free Encyclopedia, May 29,2016, pages 1-8
[5] "Executive Order 11246", Wikipedia, The Free Encyclopedia, May 29,2016, pages 1-3
[6] "The Constitution of the United States of America" ratified September 17, 1787
[7] ibid, Article I Section 8, "The Constitution of the United States of America" ratified September 17, 1787
[8] Israel, Susan, "Checks and Balances and the Three Branches of Government" National Juris University, www.nationalparalegal.edu. page 3-4
[9] ibid, page 4
[10] "Article III-Section 1, The United States Constitution as ratified, September 17, 1787 " Constitution-US Law www.cornell.edu, page 1.
[11] ibid., page 2
[12] "Marbury v. Madison" www.history.com, copyright A&E Television Networks, LLC., April 17, 2016, pages 1-3
[13] "Marbury v. Madison", ITT Chicago-Kent College of Law, www.oyez.org, Case argued February 11, 1803,
Case decided February 24, 1803, pages 1-3.
[14] ob.cit. Israel, page 10
[15] 28 U.S. Code Section 1251- Original Jurisdiction, www.law.cornell.edu/uscode/text/28/1251,April 24, 2016
[16] Rule 17"Procedure in an Original Action", www.law.cornell.edu, Cornell University, April 24, 2016
[17] ob.cit. Israel, page 12
[18] Villaneda, KaLyn, "The Levels of the United States Government"-e How Contributor, referenced January 18, 2016.
[19] "The Constitution of the United States of America".