Lecture 7- The relationship between government structure & law

Question 1

Three branches of government:

Answer 1

 Legislative branch—Congress
 Executive branch—the President
 Judicial branch—the Supreme Court and lower courts

Question 2

Two most important features of the structure of government

Answer 2

1. Separation of powers- Three branches of government are “co-equal” exert power over each other to keep each “in its proper role”
2. Federalism- Two levels of sovereign power—the national government and the governments of 50 states

Question 3

The constitution has 6 articles:

Answer 3

1. Article I establish the legislative branch—Congress
2. Article II establishes the executive branch—the President
3. Article III establishes the judicial branch—the U.S. Supreme Court and “authorizes” the creation of lower federal courts. Fourth face on credit class- one state must recognized official laws of other states. E.g. Sex marriage was prohibited by a State and admitted in other. Before the Supreme Court pronounced, it was a huge constitutional issue.
4. Article IV addresses the relationship of the states to each other – Horizontal federalism.
5. Article V sets out the procedure for amending the Constitution – States only can amend the Constitution. No federal government.
6. Article VI contains miscellaneous provisions, the most important of which is the supremacy clause. The Constitution is the supreme law.

Question 4

Legislative power

Answer 4

• Article I vest all national legislative power in Congress
• However, Congress’ legislative power is limited by:
1. The enumerated powers clause
2. The 10th Amendment

Question 5

Article 1, §8 lists (enumerates) eighteen powers that Congress can exercise – If the power is not in this list, the Congress has no power.

Answer 5

• The most important of these powers to the development of government structure today are:
1. The taxing authority
2. The ability to regulate interstate commerce
• Attempts have been made to expand the power of the national government by:
1. The general welfare clause- E.g. the Obama care was in the 18 powers?
2. The necessary and proper clause

Question 6

Two features of Congress are important:

Answer 6

1. Bi-cameral organization
   a. House of Representatives
   b. Senate
2. Two modes of representation
   a. Proportionate
   b. Direct

Question 7

Bi-cameral organization

Answer 7

• The House of Representatives
1. 435 members
2. Number of members per state is in proportion to population [approx. 1 member per 710,000 people]
3. Elected to two-year terms of office
a. All members of the House are elected every two years
4. Considered to be the body most “in touch” with, and responsive to, the people
• The Senate
1. 100 members
2. Number of Senators is allocated directly; each state has two Senators
3. Elected to six-year terms of office
a. 1/3rd of the Senators are elected every two years
4. Considered to be the “deliberative body,” more removed from the “passions of the day” than the House

Question 8

Important Congressional Powers

Answer 8

• The supremacy of federal legislation over conflicting state laws
• The taxing power
• All legislation relating to national taxes must originate in the House of Representatives

Question 9

Executive power

Answer 9

• Article II vests national executive power in the President
• The President is elected to a four-year term
1. Term limit = two consecutive terms or 10 years
• Election has direct and indirect components
1. Election is direct in the sense that individual voters cast votes
2. Election is indirect in the sense that election to office is by the Electoral College, not by outcome of the popular vote
President is not elected by popular vote. It’s made by electoral college.

Question 10

President power

Answer 10

1. “Faithfully execute the laws”
2. Conduct foreign affairs
3. Act as Commander-in-Chief of the military
4. Appoint federal judges (with advice and consent of the Senate)
5. Exercise veto power over acts passed by Congress (subject to possible Congressional override)

Question 11

Administrative agencies

Answer 11

• The President also exerts considerable power by directing federal administrative agencies
• The are 15 departments (ministries) under executive branch control
• These departments impact the legal system by:
1. Creating regulations (a legislative act)
2. Enforcing regulations (an administrative act)
3. Resolving disputes about regulations (a judicial act)

Question 12

Removing a President

Answer 12

• The only way to remove a sitting President from office is by way of impeachment
• Charges by the House; trial by the Senate

Question 13

Judicial power

Answer 13

• Article III vests national judicial power in “one supreme Court and such inferior Courts as Congress may from time to time ordain and establish.”
• Current federal court organization:
1. 1 U.S. Supreme Court
2. 13 Federal Circuit Courts (intermediate appellate courts)
3. 94 U.S. District Courts (trial courts)

Question 14

Judicial Power—Limited

Answer 14

• All courts in the U.S. are subject to the “cases or controversies” requirement
• In addition, the power of the federal courts is limited by restraints placed on their subject matter jurisdiction
o Federal court jurisdiction is restricted to:
a. Cases “arising under” a federal statute, a regulation, or the U.S. Constitution—known as “federal question jurisdiction”
b. Cases that involve citizens of different states—known as “diversity jurisdiction”

Question 15

Federal Judiciary

Answer 15

• Appointment
• All federal judges are appointed by the President, with the advice and consent of the Senate
• Tenure
• All federal judges have “lifetime appointment”
• Removal
• The only way to remove a federal judge from the bench is by impeachment
• Charges by the House; trial by the Senate

Question 16

Judicial Review

Answer 16

• The most important power of the federal judiciary is the power of judicial review
• Judicial review is the power to declare actions by Congress and the President as unconstitutional and therefore invalid
• Judicial review is not found in the Constitution; the power comes from the U.S. Supreme Court’s own decision in Marbury v. Madison [1803], which held the power was “implicit” in the structure of the Constitution

Question 17

Inefficiency: A Deliberate Design

Answer 17

• One of the outcomes of separation of powers and checks and balances is that the law-making process is inefficient—and deliberately so
• Why would we deliberately seek this result?
1. Distrust of government
2. Restraint on “fringe” ideas and movements
a. The “centering” effect

Question 18

What are the benefits of a deliberately inefficient system?

Answer 18

• prevents abuses of power
 “Power corrupts; absolute power corrupts absolutely.” Lord Acton, 1887
• minimizes opportunities for great or sudden changes of policy
 Necessity of cooperation has “centering effect”
• reflects cultural distrust of government
 “The government that governs best, governs least.” Henry David Thoreau, 1849. “Government is not the solution to our problems; government is the problem.” Ronald Wilson Reagan, 1981.