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U.S. Government & Legal System -- Closing Thoughts

This pages offers "closing thoughts" as we complete our brief study of U.S. government.

 

 

INSTRUCTOR'S OPINION

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 these pages 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 government -- 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 U.S. government may not have emphasized that point) and 2) the process by which government agencies in the executive branch promulgates regulations.

 

 

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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