U.S. Legal System
To understand U.S. laws, it is helpful to understand the U.S. legal system; that is, the process by which U.S. laws are developed and enforced. This understanding also helps U.S. citizens recognize how they can influence the law. This discussion begins with an overview of the structure of the U.S. federal government.
The ultimate source of the law is the people -- this is an absolutely critical point. The law is not determined by a king, monarch, or dictator. It is determined by elected officials, and if voters do not agree with their decisions, the voters can elect other representatives at the next election.
- Some states also allow voters to decide about specific laws; these processes are referred to as initiative and referendum; for example, see Art. III, Section 1 of the North Dakota Constitution. Initiative and referendum are discussed again in a subsequent section on this page.
The following table summarizes the U.S. structure of government. The subsequent list of points expands on that summary.
Table. Summary of U.S. Federal Government
The ultimate source of legal authority in the United States
The Constitution indicates what government is empowered to do and what government is prohibited from doing.
|Legislative Branch||Executive Branch||Judicial Branch|
Congress (all members are elected)
|President and agencies (only the president is elected; all others are appointed by the president and confirmed by the Senate, or hired)||
Federal judges are appointed by the president and confirmed by the Senate
|Enacts statutory law that sets policy||
|Limited by the Constitution||Limited by the Constitution and statutes||Limited by the Constitution|
|Enacts statutes||Promulgates regulations that describe how the executive agencies will administer the law to achieve the goals set forth by the Congress in the underlying statute||Creates common law by rendering court decisions/legal opinions|
- The Constitution is the document in which "the people" describe the processes by which they will interact with one another. The Constitution also is the document in which the people explain (agree) how they will accomplish some of their interactions through a government (see the Preamble to the U.S. Constitution).
- We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
- Note the six collective goals for government set forth in the Preamble.
- Every aspect of our legal system and government must be consistent with the Constitution.
- The U.S. Constitution is the supreme legal authority in our nation -- all statutes, regulations and court decisions at the federal, state and local government levels must be consistent with (cannot conflict with) the U.S. Constitution.
- The government cannot enact any law or take any action that conflicts with the authorities and responsibilities the people have granted to the government. These authorities and responsibilities are delineated in the Constitution.
- The Constitution belongs to the people; for example, it can be amended only by the people. It cannot be amended by Congress.
- The U.S. Constitution is changed (amended) only with the approval of the states.
- A constitutional amendment is proposed by either Congress or 2/3 of the state legislatures.
- An amendment is approved by either 3/4 of the state legislatures or state conventions called for the purpose of considering the proposed amendment.
- See Article V of the Constitution.
- States specify the process for amending their state constitution.
- In North Dakota (and many other states), voters have reserved the right to directly vote on law; see North Dakota Constitution, Article III, Section 1:
- "the people reserve the power to ... propose and adopt constitutional amendments by the initiative"
- An initiative involves citizens circulating petitions for voters to sign indicating that they want the proposed amendment placed on the ballot for the next election, and thereby allowing citizens to vote on whether to amend the state constitution.
- The Constitution delineates the authorities/powers that have been granted (by the people) to government. The Constitution also states what that people prohibit the government from doing.
- For example, the Constitution specifies the rights held by society through government
- Example -- "The Congress shall have power to ... to regulate commerce with foreign nations, and among the several states, and with the Indian tribes" Article 1, section 8.
- The assumption is that legal rights are held by individuals, unless we have agreed that they should be held collectively, and we use government to administer the rights we want collectively held.
- The Constitution also specifies limits on government
- Example -- "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances" Amendment I.
- Note: this amendment prohibits government from establishing a religion, but it does not prohibit citizens from using their values -- including their religious values -- to shape personal ideas that can then be presented to elected officials as they shape public policy.
- Example -- "No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation" Amendment V.
- Ideally, government acts on behalf of society. This is consistent with the idea that law reflects society's values. Our government is not "they;" it is "we" acting collectively.
- The Constitution establishes procedures for resolving disputes among individuals (i.e., the judicial system).
- The Constitution establishes three branches of government:
- Legislative -- Congress (legislature at the state level),
- Executive -- President and agencies (governor at the state level), and
- Judicial -- trial and appellate courts.
- The legislative branch is comprised of elected representatives who consider proposed policies; if a majority of the representatives support the proposed policy, the group enacts a statutory law.
- The legislative branch debates and establishes public policy.
- This course does not focus on policy issues; that is, "what should be the law." Instead, this course focuses on legal issues; that is, "what is the current law."
- Statutes generally describe a program or direction the legislature wants the government to pursue. Restated, the legislative branch of government directs public policy by enacting statutes.
- North Dakota Constitution (Article IV, section 13) states "The legislative assembly shall enact all laws necessary to carry into effect the provisions of this constitution."
- However, it is generally the responsibility of the executive branch of government to implement (execute) the program.
- Example -- State Board of Animal Health
- N.D.C.C. §36-01-08 State board of animal health ... "shall protect the health of the domestic animals and nontraditional livestock of this state, shall determine and employ the most efficient and practical means for the prevention, suppression, control, and eradication of dangerous, contagious, and infectious diseases among the domestic animals and nontraditional livestock of this state, and shall prevent the escape and release of an animal injurious to or competitive with agriculture, horticulture, forestry, wild animals, and other natural resource interests. For the purpose of preventing the escape and release of an animal injurious to or competitive with agriculture, horticulture, forestry, wild animals, and other natural resource interests, the board may, by rule, quarantine any such animal, cause any such animal to be killed, regulate or prohibit the arrival in or departure from this state of any such animal, and at the cost of the owner thereof, the board may detain any animal found to be in violation of any rule or prohibition..."
- Example -- Regulation, Development, and Production of Subsurface Minerals
N.D.C.C. §38-12-02. Jurisdiction of commission. The commission has jurisdiction and authority over all persons and property, public and private, necessary to enforce effectively the provisions of this chapter ... The commission acting through the office of the state geologist has the authority: ...
- Suggestions or ideas for proposed policies come from many sources, including citizens, government agencies, and the president (or governor).
- Sometimes the proposal addresses novel policy issues; other times, the proposal revisits issues that have been previously addressed by a court or the legislature. The reason to revisit an issue is because the current legislature wants to reinforce, clarify, or change the current law.
- The following statement by the North Dakota Supreme Court clearly indicates the respective responsibilities of the legislative and judicial branches of government.
- "The legislature, not this Court, should weigh the competing policy concerns and decide whether to change the clear statutory language." Treiber v. Elmer, 1999 ND 130, ¶ 17, 598 N.W.2d 96.
- Statutes cannot conflict with the Constitution
- "states may not enact laws that discriminate against or unduly burden interstate commerce... Because we conclude that Amendment E was motivated by a discriminatory purpose, we must strike it down as unconstitutional ..." S.D. Farm Bureau v. Hazeltine (2003) striking down Amendment E of the South Dakota Constitution, which limits corporate farming.
- "The ordinance discriminates against interstate commerce [clause of the Constitution], and thus is invalid." C & A Carbone, Inc. v. Town of Clarkstown, New York
- In some states, such as North Dakota, voters have reserved the right to directly vote on statutes; see North Dakota Constitution, Article III, Section 1:
- "the people reserve the power to propose and enact laws by the initiative, ... [and] to approve or reject legislative Acts, or parts thereof, by the referendum"
- Initiatives and referendums involve citizens circulating petitions for voters to sign indicating that they want the measure placed on the ballot for the next election, and thereby allowing citizens to vote/decide whether to adopt a new statute (initiative) or repeal an existing statute (referendum).
- Description of federal procedure for enacting a statutory law.
- Description of North Dakota's procedure for enacting a statutory law.
- Federal statutes (enacted by Congress) are codified in the United States Code; state statutes (enacted by state legislatures) are codified in state codes, such as the North Dakota Century Code.
- The executive branch of government is led by the president at the federal level (governors at the state level). The executive branch of government also consists of the numerous government departments and agencies we often hear mentioned in our conversations.
- The executive branch executes (implements) the statutes that the legislative branch has enacted.
- Article V, Section 7 of North Dakota Constitution states "The governor is the chief executive of the state. The governor shall have the responsibility to see that the state's business is well administered and that its laws are faithfully executed."
- The agencies of the executive branch sets forth (promulgates) and enforces regulations that have the force of law; regulations add details to the broad concepts that the legislative branch described in the statutes.
- The legislative branch may not have the expertise nor the time to set forth all the details needed to implement a policy; nor may the legislative branch want to develop such a structured approach to address social needs. For this reason, the Constitution empowers the executive branch to create the details (the regulations) as to how a program will be implemented. Certainly, these details have to be consistent with the goals set forth by the legislature in the underlying statute.
- A site prepared by a federal agency that briefly explains statutes and regulations.
- The general procedure a federal agency will follow when promulgating a regulation:
- Publish "Advance notice of proposed rulemaking; invitation to comment" (optional); published in Federal Register.
- Publish the proposed regulation in the Federal Register,
- Allow time for comment and public hearing (opportunity for concerned or interested person or group to comment on the proposed regulation),
- Allow time for the agency to review and consider the comments, and
- Publish the final regulation in Federal Register.
- Visit Regulations.gov at http://www.regulations.gov/#!home to search for proposed regulations that are currently open for public comment.
Examples of the process of promulgating federal regulations.
- "The Transportation Department proposed Thursday that airlines be required to carve out more space near emergency exits... The proposed rule would give airlines the choice of removing the seat next to the window exit or expanding the space between the rows at the window exits... But Rep. Barbara Boxer ... said the FAA action comes "far too late for far too many lives..." She said the FAA acted only days before a hearing of her House Government Operations transportation subcommittee was scheduled to examine FAA's alleged footdragging on the issue. "It is evident that the FAA acted because the world was about to learn of its shocking behavior..." The FAA proposal calls for a comment period in which the proposal could be altered." (from an AP article that appeared in The Forum several years ago). This example also illustrates how the legislative branch may react if it feels the executive branch is not implementing a statute.
- "... cheese makers have asked the Agriculture Department to change its standards to allow for smaller holes -- or "eyes" -- in Grade A Swiss. Although the standards are technically voluntary, they are used throughout the industry to ensure consistency and determine pricing. While it may seem trivial to some consumers, ... it is a significant issue for cheese makers. The department is taking comments on the cheese standards through Monday." (from an AP article that appeared in The Forum, September 2000).
- Another example of implementing a Congressional mandate -- USDA and country of origin labeling.
- An example of the legislative branch trying to impact rule making (i.e., promulgating a regulation) by the executive branch (excerpt is from May 29, 2014 Fargo Forum):
- "A bipartisan group of U.S. senators wants the Environmental Protection Agency to allow extra time for public comment on proposed rules expected to be released next week for greenhouse gas emissions from existing coal-fired power plants. Sens. Heidi Heitkamp, D-N.D., and Deb Fischer, R-Neb., led a letter sent by 47 senators last week to EPA Administrator Gina McCarthy calling for a 120-day comment period on the draft rules. The EPA released proposed standards for new coal-fired power plants last September and later extended the original 60-day comment period by an additional 60 days, until May 9 ... The bipartisan coalition – 32 Republicans and 15 Democrats – urged the EPA to start the comment period as soon as the proposed rule is noticed in the Federal Register..."
Regulations cannot conflict with the Constitution or the underlying statute that serves as the foundation for the regulation. The executive branch of government can do no more in implementing a program than the legislative branch authorizes it to do. Nor can the executive branch ignore the activities that the legislative branch has mandated. The following list illustrates how the North Dakota legislature mandated some expectations, while leaving other directions to the discretion of the executive agency.
Example -- N.D.C.C. chapter 23-33 GROUND WATER PROTECTION; note the legislature imposes certain requirements (e.g., "shall" in §23-33-02) but grants the department discretion on other points (e.g., "may" in §23-33-04).
- 23-33-01. Degradation prevention program - Maintenance of waters. This chapter establishes a degradation prevention program for the purpose of protecting ground water resources ...
- 23-33-02. Administration of chapter. The state department of health shall administer this chapter.
- 23-33-03. Education program. The department, the commissioner, and the North Dakota state university extension service and North Dakota agricultural experiment station shall cooperate with other state and federal agencies on the development of a ground water protection education program.
- 23-33-04. Chemical use data and confidentiality requirement. The department may require chemical use data from product registrants ...
- 23-33-05. Ground water standards. The department shall establish standards for compounds in ground water ...
- 23-33-06. Ground water quality monitoring. The department shall conduct ground water quality monitoring activities ...
- 23-33-08. Access for ground water monitoring. The department may request landowners or operators to allow access for monitoring of ground water and of soils ...
- 23-33-09. Pollution prevention criteria. The commissioner, in cooperation with the department, North Dakota state university extension service, and the North Dakota agricultural experiment station, may develop pollution prevention criteria for areas utilized for mixing and storing of agricultural chemicals at the retail and end use levels.
- 23-33-10. Wellhead protection program. The department in cooperation with the state engineer and state geologist shall assist in implementing a public water supply wellhead protection program ...
- 23-33-11. Rules. The department, with the approval of the commissioner and the state engineer, shall adopt rules necessary for implementation of this chapter.
For a brief description of executive orders, see Relyea Harold. Presidential Directives: Background and Overview. CRS Report for Congress, Congressional Research Service, The Library of Congress, Updated April 23, 2007 at http://www.fas.org/irp/crs/98-611.pdf
- For several years (e.g., 2013-2014), President Obama has been criticized as overusing executive orders to circumvent Congress. The executive branch replies that executive orders is the only way for it to make any changes when Congress has been "slow" in enacting the desired underlying statutes. Usually executive orders have been a "non-issue" within the U.S. federal government, but their recent use by President Obama has brought their use into the public eye and has reminded all of us of the respective roles of the branches of government.
The judicial branch of government is the court system. It is comprised of trial courts (to determine the facts) and appellate courts (to interpret or clarify the Constitution, statutes, regulations and common law).
- For example, North Dakota Constitution, Article VI, sections 2 and 8 state "The supreme court shall be the highest court of the state. It shall have appellate jurisdiction . . ." and "The district court shall have original jurisdiction of all causes ..."
The court system is our mechanism for resolving disputes (it is better than using force or resorting to violence to resolve disputes).
- "Litigation is civilized war." Doug Nill, attorney and '81 NDSU graduate, BS Ag Economics, quoted in AGWEEK , May 10, 2004, page 30.
Types of Court Cases
- Criminal -- state charges a person with a crime; penalty will be either imprisonment or a fine. This course will NOT address criminal law.
- "A criminal action is one prosecuted by the state as a party against a person charged with a public offense for the punishment thereof." N.D.C.C. §32-01-05 .
- Civil -- Dispute between two parties (e.g., dispute a buyer and a seller, dispute between a landowner and a tenant, dispute between two neighbors); not a crime. Solution generally will be a court order to compensate the injured party and/or to stop an illegal act .
- "As a general rule compensation is the relief or remedy provided by the law of this state for the violation of private rights and the means of securing their observance. Specific and preventive relief may be given in no cases other than those specified in this title." N.D.C.C. §32-01-11.
- In a civil lawsuit, the party who files the lawsuit (also stated as "commences the action" or "brings the action") is the plaintiff; that is, the party who is complaining that they have been injured or treated wrong. The party being sued is the defendant; that is, the person or persons who have to defend themselves against the accusations being made by the plaintiff.
- A court case is sometimes referred to as litigation, and the plaintiff and defendant are called the litigants or litigating parties.
- The court cases studied in this course are primarily civil cases; this course devotes very little attention to criminal cases/criminal law.
- Courts also decide whether there is a conflict among a regulation, statute, and Constitution; if there is a conflict, the Constitution prevails and the conflicting portion of the statute or regulations will not be enforced.
- Excerpts from a previous EPA web page.
- "Congress passed the Federal Water Pollution Control Act (1972), also known as the Clean Water Act (CWA), to ‘‘restore and maintain the chemical, physical, and biological integrity of the nation’s waters’’ (33 U.S.C. 1251(a)). Among the core provisions, the CWA establishes the NPDES permit program to authorize and regulate the discharge of pollutants from point sources to waters of the U.S. 33 U.S.C. 1342.
- "The CAFO industry organizations argued that the EPA exceeded its statutory authority by requiring all CAFOs to either apply for NPDES permits or demonstrate that they have no potential to discharge. The court agreed with the CAFO industry petitioners on this issue and therefore vacated the ‘‘duty to apply’’ provision of the 2003 CAFO rule.
- "The court found that the duty to apply, which the Agency had based on a presumption that most CAFOs have at least a potential to discharge, was invalid, because the CWA subjects only actual discharges to permitting requirements rather than potential discharges. The court acknowledged EPA’s policy considerations for seeking to impose a duty to apply but found that the Agency lacked statutory authority to do so."
Excerpt from an agency news release; item is no longer available on the WWW. In this case, a federal court reversed the recent action of U.S. Fish & Wildlife Service (an executive agency under the authority of the President). This case illustrates that a court will order the executive branch (the President) to implement the law as Congress intended the statute to be used (as interpreted by this particular judge).
Civil lawsuits are initiated in a trial court. The task is for the jury (or in some cases, the judge) to listen to the evidence presented by the litigants, decide what happened, and determine a solution to the dispute. The judge oversees the trial process to assure all litigants are given an opportunity to present their information and to assure the jury appropriately applies the law to the facts of the case.
An appellate court reviews the action of the trial court; a litigant will initiate an appeal if the litigant feels the trial judge made a mistake in overseeing the trial process or in interpreting and applying the law. The appellate court does not determine the facts of the case (that has already been done by the trial court); the appellate court focuses on whether the law was correctly interpreted and applied during the trial process.
Reading a court opinion can sometimes be confusing because the justices have to address several legal issues; this is especially difficult if the reader is interested in only one of the legal concepts the court addressed in making its decision. Therefore, as you read a court case, there will be times when much of the opinion may not be of interest to you. Focus on the part of the decision that applies to your question but do not overlook the remainder of the opinion to such an extent that you are unable to understand the overall situation.
"Summary judgment is a procedure for the prompt and expeditious disposition of a controversy without trial if either party is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving factual disputes would not alter the result." Steiner v. Ford Motor Co., 2000 ND 31, 606 N.W.2d 881.
If the judge of the trial court concludes, based on the information presented by the litigating parties, that one party will prevail and there is no reason to continue the trial on that point, the judge can issue a summary judgment on that point. It is not uncommon then for the party who lost on summary judgment at the trial to appeal to an appellate court to argue that the trial judge made an error and the trial should have been completed. It is this appeal of the summary judgment that is then being explained in the decision of the appellate court.
Although the question of granting a summary judgment may appear in many of the court opinions we will read, you will often focus on the part of the opinion that discusses the legal concept we are studying at the time.
Please allow me to offer an opinion. Our nation, and to some extent the world, focuses much attention on the President and offer statements about what the President can do. Although this attention is warranted, it also can be misconstrued.
As explained in the previous sections, the President can do no more than Congress authorizes and the President must do as Congress mandates.
- The President can lobby Congress, just as you and I can (but obviously, the President will most likely receive more consideration than suggestions by you or me).
- The President can veto legislation that Congress has passed, but Congress can override a veto. For example, the Farm Bill in 2008 was enacted twice, vetoed by President Bush twice, and the vetoes were overridden by Congress twice. Guess what? Congress still prevails.
- The President can direct agencies of the executive branch to exercise their discretion and not fully implement Congressional mandates. This is based on the assumption that the language of the statute had room for interpretation. But that is where the judicial branch assumes a role. An individual, even you or me, can sue the agency and argue that the agency is not abiding by the law by not fulfilling the Congressional mandate. If the court agrees, the executive agency will need to change its practices. Guess what? The president does not always prevail.
- Congress also can respond to action or inaction of the executive branch by enacting another statute to clarify what Congress intended to accomplished with the first statute that the executive branch is not administering. Again, the executive branch (ie., the President) is limited as to what it can do.
President Nixon (and other presidents) occasionally think they can do more than the law authorizes them to do. President Nixon did not finish his term in office. Other presidents were effectively rendered powerless because Congress would not pay any attention to the presidents' suggestions. Guess what? Congress prevails.
Bottom line -- despite all the international attention paid to the office of the U.S. President, NEVER forget that it is Congress that sets the direction or policy. The media sometimes misleads us by giving all the credit or blame to the president. We need to understand the structure of the U.S. government and to follow current events close enough to understand who is doing what and who ultimately prevails. A presidential suggestion will only become law if a majority of Congress agrees. Without Congress' approval, no one's suggestions (including the president's suggestions) will ever become law.
Summary of Key Points
- The purpose of this page was to overview the U.S. legal system and to emphasize the type of law that is created by each branch of government (legislative branch enacts statutes, the executive branch promulgates regulations, and appellate courts within the judicial branch render legal opinions that collectively form the common law).
- A second emphasis was on describing the relationship among the three branches of goverment -- that is, the legislative branch debates and establishes policy, the executive branch executes or implements the policies set forth by the legislative branch, and the judicial branch interprets the Constitution, statutes, and regulations.
- The word "law" encompasses statutes, regulations, and the common law. HINT -- clarify your communication by stating whether you are describing a statute, a regulation or a court decision, rather than generally referring to "the law".
- A third point in this discussion is that the Constitution specifies what government is authorized to do and what government is prohibited from doing.
- Perhaps the most confusing parts of these materials are 1) the relationship among the Constitution, statutes, regulations and court decisions (because your earlier studies of US government may not have emphasized that point) and 2) the process by which government agencies in the executive branch promulgates regulations.
- This course focuses on concepts that generally arise as civil matters or civil court cases; criminal law is NOT the focus of this course.
Also see Overview of U.S. Government
The next page introduces how to research law.