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U.S. Government & Legal System -- Introduction

This page introduces the three branches of U.S. government, their respective roles, and the types of law each creates.

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To understand U.S. law, it is helpful to understand the government structure and legal system of the United States; that is, the process by which U.S. laws are developed and enforced. This understanding also helps individuals recognize how they can influence the law. The discussion begins with an overview of the structure of U.S. government.

 

Levels of U.S. Government

Government in the United States is organized into three levels:  federal, state, and local (e.g. county and municipalities).  Each level of government has unique responsibilities.  For example, the federal government is responsible for national matters, such as international affairs and national defense.  State government is responsible for providing education and defining property rights.  Local governments often address matters such as fire and police protection and land-use regulation.  Even though these examples oversimplify the activities of government in the United States in the 21st century, they illustrate the relative roles of each level of government.

 

Role of the U.S. Constitution

A constitution defines the authorities of government.  In the United States, 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 the decisions made by elected officials, the voters can vote for other representatives at the next election.

In the late 1700s, the people of the United States, through elected representatives or delegates, created the current U.S. Constitution.  As stated in the Preamble to the U.S. Constitution, "We the people ... establish this Constitution for the United States of America."  The U.S. Constitution is described more fully in a subsequent section; but at this point, it must be understood that the Constitution is the document in which the people define the powers of the government.

The following items illustrate 1) an authority granted in the U.S. Constitution by the people to the federal government, 2) an action the people prohibit the government from taking, and 3) the process by which the people amend the government's authority, that is, amend the the U.S. Constitution.

  • Example of a federal government authority specified in the U.S. Constitution.
    • "To regulate commerce ... among the ... states"  U.S. Const. Art. 1, Sec. 8; for example, this statement empowers the U.S. federal government to regulate food that is in interstate commerce.
  • Example of an action the U.S. government is prohibited from pursuing.
    • "nor shall any person ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."  U.S. Const. Amend. V ; for example, this provision limits the government's authority to regulate food businesses.
  • Statement as to the role of the people and states in amending the U.S. Constitution.
    • "amendments to this Constitution ... shall be valid ... when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof"  U.S. Const. Art. V; this provisions clarifies that only the people can amend the Constitution and thus only the people can decide to alter the government's authority.

Each state also has a constitution, and like the U.S. Constitution, each state uses its constitution to establish its state government.

  • For example, see the North Dakota Constitution or the South Dakota Constitution or the Georgia Constitution.
  • A state constitution cannot authorize state government to do something that the U.S. Constitution prohibits government -- at any level -- from doing.
    • ...No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States... U.S. Const. Amend. XIV
  • Only the citizens of a state can amend the state constitution, for example:

If there is a conflict between federal and state law, federal law is supreme.  See U.S. Const. Art. VI and N.D. Const. Art. I, Sec. 23, for example.

 

Branches of Government

One common characteristic of the U.S. Constitution and each state constitution is that the federal government and the government of each state is organized into three branches of government:

  • The legislative branch is comprised of elected representatives who set public policy
  • The executive branch is led by an elected official:  president at the federal level and governors at the state level; the role of the executive branch of government is to implement or execute the statutes enacted by the legislative branch.
    • Most government agencies are part of the executive branch.  The agencies are staffed by government employees whose task is to assist the leader of the executive branch (e.g., the president at the federal level) implement the programs enacted by the legislative branch (e.g., Congress at the federal level; state legislatures at the state level).  For example, the Food Safety Inspection Service within the USDA is part of the executive branch of the U.S. federal government and is responsible for enforcing food safety laws enacted by Congress.
    • The leader of the executive branch of state government often is the governor, but some states (such as North Dakota) elect additional state leaders (such as the Commissioner of Agriculture) rather than having the governor hire (appoint) those agency leaders. 
    • In contrast, the leaders of U.S. federal agencies (such as the USDA or Department of Health and Human Services) are hired (appointed) by the president.  The agency leaders are referred to as "Secretary" and collectively comprise the president's cabinet (or closest advisers).
  • The judicial branch is the court system; its role is to resolve disputes and interpret the "law".

The discussion on this web page uses the U.S. federal government to illustrate the three branches of government.

 

Law Created by each Branch of Government

Each branch of government creates a type of law.

  • Statutory law is enacted by the legislative branch; these statutes set forth the public policy that the elected legislators want to pursue.  Often statutes provide general direction on how the executive branch should implement the statutory laws (public policy).
  • Regulations are promulgated by the execute branch; regulations provide details as to how the executive agencies will implement the statutes.
  • The common law are the court decisions or opinions in which the judges explain their interpretation of the Constitution, statutes, regulations and prior court decisions (i.e., the common law).  The common law (prior court decisions) will be used to guide subsequent court decisions.

 

Overall Structure of U.S. Government

The following table summarizes the U.S. structure of government.

 

People

Ultimate source of legal authority in U.S.government

Constitution

Indicates what government is empowered to do and what government is prohibited from doing.

Legislative branch Executive branch Judicial branch
Congress President and government agencies

Trial (district) courts

Appellate (circuit courts & Supreme Court)

Sets public policy

Executes or implements the programs enacted by the Legislative branch

Suggests public policy

Exercises "police power" to regulate the activities of businesses and individuals

Initiates enforcement when the law is violated 

Trial courts resolve disputes by determining the facts of a situation and applying the relevant law

Appellate courts assure that the trial court correctly applied the relevant law.

Appellate courts interpret the Constitution, statutes, regulations and common law; appellate courts are not expected to set public policy, but ...

Limited by the Constitution Limited by the Constitution and statutory law Limited by the Constitution
Enacts statutes Promulgates regulations to provide detail as to how the executive agency will implement the statutory law Appellate courts create the "common law" by issuing court opinions that interpret the law

 

The following pages discuss the role of the Constitution and the three branches of government in more detail.

 

 

Email David.Saxowsky@ndsu.edu

This material is intended for educational purposes only. It is not a substitute for competent legal counsel. Seek appropriate professional advice for answers to your specific questions.

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