Have you read the Constitution of the United States? Very few U.S. citizens have read the Constitution of the United States of America. Fewer yet have studied it and understood it as a living document. In order to understand why the Constitution was drafted in 1787, please open our companion website, read the Constitution’s Preamble, and consider both its specific and aspirational goals. From there, please move on to Article VI of the Constitution and its accompanying commentary on our website. Paragraph two is known as the "supremacy clause." The supremacy clause is of paramount importance because it declares the Constitution, which now includes twenty-seven amendments, as well as all federal laws and treaties which do not violate the Constitution to be the highest law in the United States. While every state in the union has its own (usually much longer) constitution, the provisions of state constitutions may differ from, but may never contradict, the U.S. Constitution. Whenever there is a conflict between a state constitution or a state law and either the U.S. Constitution or a constitutional federal law or treaty, state as well as federal judges must reject the state constitution or state law in favor of the Constitution and constitutional federal law. Paragraph three of Article VI requires all federal and state elected and appointed officials to take an oath or make an affirmation to support the Constitution. It is important to note that the Constitution replaced a previous document, the Articles of Confederation. All of the Framers of the Constitution were elected by their respective state legislatures. Many Founders of the United States, such as Thomas Jefferson, were not Framers of the Constitution and vice versa. Many issues divided the Framers and these were hotly debated. These debates are most clearly understood by reading the Federalist Papers written by Alexander Hamilton, James Madison, and John Jay. Madison’s essays have been the most often read and quoted because of their focus on the larger issues of government, especially federal governance, where one central authority shares power with subsidiary units (now fifty states). In Federalist No. 78, Madison argues: The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be, regarded by the judges as the fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body.” Here Madison, often considered the “Father of the Constitution,” argues for a strong third, judicial branch of government with powers of judicial review. A strong judiciary becomes a reality after Marbury v. Madison in 1803 (see Sidebar #3).
Who Determines the Meaning of the Constitution? The first sentence of Article III, Section 1 reads: “The judicial power of the United States shall be vested in one supreme Court.” The first sentence of Section 2 reads: “The judicial power shall extend to all Cases in Law and Equity, arising under this Constitution, the Law of the United States, and treaties made, or which shall be made, under their Authority…” This and the Supreme Court decision and precedent set in Marbury v. Madison in 1803 (see Sidebar #3) have established the Supreme Court of the United States (SCOTUS) as the final arbiter of the U.S. Constitution and federal laws and treaties. By virtue of its power of judicial review, the Supreme Court determines whether federal, statutes, administrative regulations, and executive orders comply with constitutional requirements. The federal courts also resolve contradictions between state constitutions or state laws and the U.S. Constitution and federal laws. What is the Bill of Rights? At present, there are twenty-seven amendments to the Constitution. The first ten of these amendments comprise the Bill of Rights. Read the first ten Amendments (on the companion website) and then compare them to the English Bill of Rights (“An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown”) enacted by the English Parliament in 1689. The English Bill of Rights established the sovereignty of parliament over all government institutions including the Monarchy. The enumeration of grievances against the Crown in the English Bill of Rights is reminiscent of the grievances listed in the Declaration of Independence. The provisions of the English Bill of Rights provide the motivation and template for the U.S. Bill of Rights as it declares “ancient rights and liberties” to include: That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal; That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal; That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious; That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal; That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal; That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law; That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law; That election of members of Parliament ought to be free; That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament; That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted; That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders; That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void…
George Mason, a Virginia delegate, lost a motion at the Constitutional Convention to add a Bill of Rights to the Constitution and then unsuccessfully fought Virginia’s ratification. James Madison, considered to be the “Father of the Constitution,” pledged to amend the Constitution by adding a Bill of Rights at the First Congress to assuage anti-federalists fears that the U.S. Constitution did not sufficiently protect individuals from government incursions. After ratification (see Article VII) Congress followed through on Madison’s promise. The Ninth Amendment (1791) states that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Ninth Amendment indicates that there may be other rights “retained by the people” that were not included in the Bill of Rights. Other rights “retained by the people” that have been recognized by the courts include the right to vote, the right to freedom of movement, and the right to privacy. The right to privacy “enumerated” through application of the due process clause of the Fourteenth Amendment was central to the decision in Roe v. Wade (410 U.S. 113, 1973, Sidebar #6), that protected a woman’s reproductive decision-making and abortion rights. It should be emphasized again that the real meaning of the Constitution and its Amendments is determined by judicial interpretation. Consider, for example, the First Amendment. The words “the freedom of speech” have been given practical meaning through decisions in cases decided by numerous courts, especially SCOTUS. First Amendment litigation, like all litigation in the United States, always involves a case or controversy arising from specific events. For example, an arrest for flag burning. Does the First Amendment guarantee the right to yell “fire” in a crowded theater? Does it permit a speaker to advocate the commission of violent acts against other persons?
The Lawmaking Branches of Government The U.S. government is one of separated powers. The first three articles of the U.S. Constitution delineate the structure of the federal government and distribute political powers among its three branches. The structure and powers of the legislative, executive, and judicial branches are described in Articles I, II, and III respectively. The following will briefly describe how the legislative branch passes statutes; how the executive branch and administrative agencies issue executive orders, create regulations, and adjudicate disputes; and how the judicial branch adjudicates cases and controversies.
Article I – The Legislative Branch and Statutory Law Visit our website and read the ten sections that comprise Article I of the Constitution along with the accompanying commentary. It is here that a republican form of government was created wherein U.S. citizens vote for individuals to represent them in the federal legislative bodies. At the federal level, there is a bi-camerallegislature known as Congress. Its chambers are called the Senate and the House of Representatives (Section 1). From a structural point of view, the composition of the two chambers is different. First, the apportionment of representatives in the House changes for each state after each census, and states with growing populations gain representation. However, each state, regardless of its population, has two senators to represent its interests in the Senate. Thus, unlike Members of the House of Representatives, who represent a specific part of their state’s constituency, each Senator represents his or her entire state. Second, while all seats in the House of Representatives are filled simultaneously by elections held every two years (Section 2), Senators are elected to hold office for six year terms, but only one-third of Senate seats are up for election in each biannual, congressional election (Section 3). Section 2 declares that Members of the House of Representatives were to be “chosen every second year by the People.” The Constitution did not delineate who actually had the right to vote for federal officials and left that decision to the individual states. Most states initially gave the franchise only to free, white men over the age of twenty-one who owned property (in New Jersey, women who owned property could vote until women were disenfranchised in 1807). By the mid-1850s all white males over twenty-one could vote. The Fifteenth Amendment (1870) prohibited the denial of suffrage…on the basis of “race, color, or previous condition of servitude.” The Nineteenth Amendment (1920) forbade states from denying the right to vote “on account of sex.” The Twenty-fourth Amendment stipulated that the right to vote could not be denied “by reason of failure to pay any poll tax or other tax.” The Twenty-sixth Amendment (1971) extended the right to vote to anyone “eighteen years of age or older.” For 125 years after the Constitution’s ratification in 1788, Senators were not elected by popular vote. Instead, Senators were elected by state legislatures as stipulated by Article I, Section 3. The Seventeenth Amendment (1913) democratized Article I, Section 3 and provided for the direct election of U.S. Senators. The Voting Rights Act (1965) strengthened the Fifteenth Amendment protections by further prohibiting practices that contributed to racial discrimination in voting. The Voting Rights Act of 1965 banned discriminatory laws and practices that were designed to circumvent the Fifteenth Amendment. The Voting Rights Act of 1965 prohibited voter qualification requirements, such as literacy tests and poll taxes, which were designed to disenfranchise African Americans. This statute has been the basis of active litigation, most notably in the Supreme Court decision in Shelby County v. Holder (570U.S. 2, 2013, sidebar #7). The actual number of Members of the House of Representatives allotted to each state was initially set using a formula that counted the number of “free men” in each state and the infamous “three fifths of all other Persons” (referring to slaves) that provided extra representation for the slave states in the House of Representatives (Section 2). The other oblique allusion to slavery (the word “slavery” was not used until the Constitution’s Thirteenth Amendment) can be found in the shockingly evil third paragraph of Article IV, Section 2, which required “free states” to return fugitive enslaved individuals to their owners. This paragraph was rendered null and void after the passage of the Thirteenth Amendment which abolished slavery. Article I, Section 2 provides that: "The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative.” To account for population growth the size of the House was regularly increased by Congress until it fixed the number at 435 in 1911. Section 2 indicates that “Representatives…shall be apportioned among the several States….” and that this “enumeration shall be made”….within every subsequent Term of ten Years, in such manner as they shall by Law direct.” So, while the total number of seats in the House is fixed at 435, they are apportioned among the population of each state as determined by the constitutionally mandated census conducted every ten years. As for not exceeding “one for every thirty Thousand,” the population of the United States was about 326 million in 2017 and dividing by 435 yields about 75,000 people for each seat in the House. From a lawmaking point of view, there are few differences between the House and the Senate. These distinctions are described in detail in Article I, Section 7. Members of each chamber can introduce a bill proposing a new law. A committee of that chamber will study the bill and reject it or recommend, with or without changes. If the bill passes out of committee, it is then brought to the floor of the entire chamber for debate. Amendments may be offered. If the bill receives an affirmative vote after debate, it is then sent to the other chamber where similar debates and vote take place. If there are proposed amendments, both chambers of Congress must agree on them. When Congress cannot agree on the content of a bill, the bill is referred to a special committee whose role is to resolve differences between the two legislative houses on the wording of a bill. Unless a bill passes both houses in the same form, it cannot be sent to the President for signing. At this point in the lawmaking process, the President has a few options. The President can sign the bill into law or the President can do nothing. If the President does not sign the bill, then, if Congress is in session, the bill becomes law automatically after ten days. If Congress is not in session when the ten-day period expires, the bill does not become law. This is known as a “pocket veto.” The President can also actively veto the bill. Then, unless Congress overrides the veto by a two-thirds vote of both Houses, the bill does not become law. However, once the bill is signed into law, it becomes binding federal statutory law. But this is just the beginning. Who will execute the provisions of this law? Here the executive branch through its administrative agencies creates regulations to carry out the specifics of the law and then adjudicate disputes that arise. Later in this book we will see that the true meaning of a statute and its regulations will be determined by the decisional law of the courts. But, amendments to and debates over bills become parts of a law’s legislative history, and this legislative history is often used by courts in determining the meaning of statutory language Article I, Section 7 begins by stating that “All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other bills.” The issue of “no taxation without representation” was one of the key motivating forces in the decision of the American Colonies to declare their independence from King George III. It is therefore not difficult to understand the sensitivity of the Framers to the issue of who had the power of the purse. Because the House of Representatives was more closely connected to the people and was elected every two years, the sole power to initiate bills to raise revenue is vested in the House of Representatives. The word “republican” appears in Article IV, Section 4 in the form of a guarantee by the federal authority that each state shall have a representative government. Each state'sconstitution establishes the structure of that state's government, including the legislatives body or bodies that can enact statutes. With one notable exception, Nebraska, both the federal and the state legislative bodies are bi-cameral. For example, the New York legislative body is composed of the New York State Senate and New York State Assembly. State lawmaking procedures are also nearly identical to the federal system. A legislator introduces a bill, and then the bill is referred to the appropriate standing committee of the chamber where it was introduced. When the bill passes both chambers of the state legislature, it is sent to the governor’s office. Like the President, a governor can sign bills into law, veto them, or take no action on them. Once a bill is signed into law, it becomes binding, state statutory law.
Congressional Powers – Article I, Section 8 The Bill of Rights was added to the Constitution in the First Congress to protect individual rights and delineate what the federal government was not allowed to do. Article I, Section 8 enumerates the many important powers granted to the Congress and is often considered the core of the Constitution. The laws passed to carry out these powers have necessitated the establishment of a huge administrative bureaucracy. This federal administrative bureaucracy has become so massive that it is often referred to as our fourth branch of government. A fourth administrative, governmental branch is something that the Framers of the U.S. Constitution never envisioned. Please read Article I, Section 8 and the accompanying commentary in the companion website. The following are some overarching, critical congressional powers: 1. the power to collect taxes with federal tax collection now the responsibility of the Internal Revenue Service, a huge, federal bureau within the Department of the Treasury that is aided by the enforcement power of the Department of Justice; 2. the power to regulate commerce “among the several states,” which has allowed the federal government to regulate many activities (including environmental protection) because of the very broad definition accorded “commerce” by the courts; 3. the power to create “[t]ribunals inferior to the supreme Court,” which has permitted the creation of the present federal court system with trial and appellate courts, known as circuit courts; and, 4. the power to declare war and raise and support armies and the navy. The “necessary and proper” clause found in the last paragraph of Section 8 is worth repeating: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by the Constitution in the government of the Unites States, or any Department or Officer thereof.” The “necessary and proper” clause has been the used to justify the creation of laws well beyond the types of legislation envisioned by the Framers, along with departments and agencies to carry out such laws. This over time has resulted in the growth of a vast and powerful federal bureaucracy within the executive branch.
Article II – The Executive Branch, Executive Orders, Agencies and Administrative Law Article II, Section 1 vests the “executive Power” in the President of the United States. Please go to the companion website and read the four sections of Article II along with the commentary. The chief executive is responsible for carrying out and enforcing the law of the land. These consist of the Constitution and federal, statutory law, as well as interpretations of the constitution and federal statutory law by the judiciary. The President may create law through executive orders or decrees. Executive orders have the full force of the law but are directed internally to the executive departments and agencies of the federal government. Executive orders, while not specifically mentioned in the Constitution, derive their authority from Article II, Section 3’s exhortation to “take Care that the Laws be faithfully executed.” Executive orders are, of course, subject to judicial review. The President is elected for a term of four years. No term limit was included in the original text of the Constitution. By deciding not to seek election for a third four-year term in 1796, George Washington established the precedent that a president should only serve two terms. The precedent was the unwritten rule until Franklin D. Roosevelt was elected to four terms. In 1951, shortly after Roosevelt’s death in office, the Twenty-second Amendment, which limited a presidency to a maximum of two full, elected terms was ratified. The election of Presidents has produced debate and consternation about the electoral college, which was mandated by the Constitution. Each state has a specific number of electors that is equal to the combined number of seats held in the House of Representatives and the Senate. In 2017 New Jersey, for instance, has twelve representatives and two senators for a total of fourteen electors. In a presidential election the winner of the popular vote in almost every state wins all the electoral votes in that state. Maine and Nebraska allocate their electors among the candidates in proportion to the popular vote. The electors subsequently meet and vote for the President. The electoral college was originally created by the Framers as a device to protect the election of the President from the unsophisticated, uneducated votes of the masses. This elitist principle required that the most knowledgeable and accomplished men would be chosen as electors by their respective legislatures and that these electors would use their own judgment in voting for the best candidate for President. The Constitution says nothing about political parties; however, by 1792 the Federalist Party led by Alexander Hamilton opposed the anti-federalist Democratic-Republican Party of Thomas Jefferson. This was the beginning of what has largely been a two-party system in the United States. The advent of political parties made it necessary to create separate groups of electors who pledged to vote for their party. This was constitutionally allowed since the creation of the electoral college was left to the states “in such Manner as the Legislature thereof may direct.” Winning a majority of electoral votes is therefore the goal of any Presidential candidate. If no candidate secures a majority of votes in the electoral college, then the election is decided by the House of Representatives with each state having one vote. Because there is a total of 538 electors, corresponding to 435 representatives, 100 senators, and the three electors for the District of Columbia (as provided by the Twenty-third Amendment), the magic number is 270. Losers of the popular vote who won the presidency by winning the electoral college vote include: John Quincy Adams (1824), Rutherford B. Hayes (1876), Benjamin Harrison (1888), George W. Bush (2000) and Donald Trump (2016). In the presidential election of 1824 John Quincy Adams was elected President but not until February 9, 1825. This election was the only one in history to be decided by the House of Representatives under the provisions of the Twelfth Amendment (1804) after no candidate secured a majority of the electoral vote. The President exercises considerable lawmaking powers. As previously discussed, the President exercises his or her lawmaking powers by signing federal bills into law or vetoing them, or by issuing executive orders. Though departments and agencies are usually created by Congress through “enabling acts,” Congress (in Chapter 9, Title 5 of the United States Code) gave the President the power to issue an executive order to establish an administrative agency if the purpose is to consolidate responsibilities and make administration more efficient. Using this power, President Nixon established the Environmental Protection Agency (EPA) in 1970 through a reorganization plan that consolidated in one agency a variety of environmental monitoring, standard-setting, enforcement and research activities that at that time were dispersed among several existing agencies. See the companion website for Reorganization Plan No. 3 of 1970, which outlines the rationale for the consolidation of these activities within the new EPA. Article II, Section 2 states that “The President shall be the Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the service of the United States…” Like the vaguely defined “executive Power” granted in Article II, Section 1, the President’s commander-in-chief power has also expanded over the course of the past 200 years. Presidents have relied on Article II, Section 2 to commence military actions. Arguably, reliance by a President on Article II, Section 2 to enter military actions conflicts directly with the power to declare war given to the House of Representatives in Article I, Section 8. The President’s lawmaking powers may be also exercised indirectly through appointments. Article II, Section 2 states that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” The Foreword to the December 1, 2016 edition of the “Plum Book” states: Every four years, just after the Presidential election, the ‘‘United States Government Policy and Supporting Positions,’’ commonly known as the Plum Book, is published, alternately, by the Senate Committee on Homeland Security and Governmental Affairs and the House Committee on Oversight and Government Reform. This publication contains data (as of June 30, 2016) on over 9,000 Federal civil service leadership and support positions in the legislative and executive branches of the Federal Government that may be subject to noncompetitive appointment (e.g., positions such as agency heads and their immediate subordinates, policy executives and advisors, and aides who report to these officials) The Plum Book, published by the Government Printing Office, is available online. Included in this throng of federal appointments are the Presidential appointments requiring Senate approval. Go to page 26 of the Plum Book and review the number of positions filled by appointments within the Department of Defense. This may give you a better sense of the huge, powerful, and unelected federal bureaucracy within the executive branch. Article II, Section 2 also provides that the President “may require the Opinion, in writing, of the Principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices.” Without using the word this language created the justification for a Cabinet (discussed in more detail below). Advice and consent of the Senate formerly required only consultation with the Senate. Now, presidential appointees are required to attend hearings before Senate committees. If the Senate committee approves the appointment, then the appointment is brought before the full Senate for a vote. An affirmative vote by a simple majority confirms the appointment. Section 2 of Article II provides that the President “shall have the Power, by and with the advice and consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” The Obama Administration negotiated on behalf of the United States in helping to draft the Paris climate accord in 2017. This agreement has been signed by 195 countries of the United Nations Framework Convention on Climate Change and ratified by 145 countries. The United States Senate never ratified the Paris Climate Accord; therefore, it does not have the force of law in the United States. Article II, Section 3 provides that the President “shall from time to time give to Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may on extraordinary Occasions convene both Houses, or either of them…” The Constitution does not specifically require the President to deliver a speech to Congress for such purpose; however, every President since Woodrow Wilson in 1913 has addressed a joint session of Congress. Presidents Washington and Adams also gave their annual, constitutionally mandated reports in the form of addresses to joint sessions of Congress. President Jefferson discontinued this practice and, instead, transmitted his annual report in writing. Presidents continued to furnish annual, written reports until 1913.President Roosevelt established two traditions by calling in 1934 what was known as the “President’s Annual Message to Congress” the “State of the Union Address” and by making the first address at night in 1936. This address has evolved from radio (President Coolidge in 1923) to television (President Truman in 1947) and now into a major media event. By tradition the address is made in January or February. Since the development of nuclear weapons, a designated survivor is chosen to be absent from the State of the Union Address and to be secured in a safe location. This person is usually a cabinet member that, according to the Presidential Succession Act of 1947, is in the direct line of succession. The actual line of succession provided for in this statute is: Vice President, Speaker of the House of Representatives, President pro tempore of the Senate, the Secretary of State, and then the rest of the members of the U.S. Cabinet. Article II, Section 1 dictates that the Vice President shall be “chosen for the same Term” as the President. Article I, Section 3 states that the “Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided”. The most important responsibility of the Vice President is stated in Article II, Section 1 that makes the Vice President first in the line of succession if the president dies, is disabled, or is impeached and convicted. Article 1, Section 3 also states that the Congress can provide by law for cases in which neither the President nor Vice President can serve. The Twenty-fifth Amendment (1967) restated and clarified Article II and also provided for Vice Presidential succession, by requiring Vice Presidential vacancies to be filled by the President and confirmed by both houses of the Congress. Previously, whenever a Vice President had succeeded to the Presidency or had otherwise left the office empty (through death, resignation, or removal from office), the Vice Presidency remained vacant until the next Presidential and Vice-Presidential terms began. Article II, Section 4 states that "The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Impeachment is the equivalent to an indictment. The understanding of the Framers was that “High Crimes” were those committed by those who have taken an oath of office and have special responsibilities because of their position of authority and public trust. These “Crimes and Misdemeanors” cover a wide range of abuses and illegal behavior. Article I, Section 2 provides that the House of Representatives “shall have the sole power of impeachment.” Only officers of the U.S. federal government may be impeached. As previously mentioned, Article II, Section 2 gives the power (subject to the "advice and consent" of the U. S. Senate) to appoint "Officers of the United States" to the President. “Officers of the United States” are, therefore, appointed members of the executive or judicial branch of government. They are numerous (see the Plum Book above) and include, for instance, all the heads of executive departments and agencies, all federal judges, and all officers of the U.S. military. Members of Congress are not and cannot be "Officers of the United States." The “ineligibility clause” of Article 1, Section 6 states that “No Senator or representative shall, during the time for which he was elected, be appointed to any civil Office under the Authority of the United States” and “no Person holding any Office under the United States, shall be a member of either House during his continuance in office.” While members of Congress cannot be impeached, the Constitution explicitly states in Article I, Section 5 that “each House may determine the Rules of its Proceedings, punish its members for disorderly Behaviour, and, with the Concurrence of two-thirds, expel a Member.” The procedure for impeachment of an “Officer of the United States” requires that the House Judiciary Committee by majority vote send the “Articles of Impeachment” to the floor of the House, where there is a hearing. By a majority vote, the House can confirm the impeachment. An impeachment is not a conviction but is a formal allegation and is analogous to an indictment in a criminal trial. Article I, Section 3 states that “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.” Presidents Andrew Johnson and William Jefferson Clinton are the only two Presidents to have been impeached. Neither was convicted by the Senate. One Cabinet member, William Belknap, the Secretary of War, was impeached in 1876 for taking kickbacks. He was not impeached until after he resigned from office. The Senate could not muster the two-thirds supermajority needed to convict Belknap because many Senators felt that they could not convict someone who had resigned. Fifteen federal judges have been impeached, and eight were convicted by the Senate. This started in 1803 with the impeachment and conviction of Judge John Pickering of New Hampshire for excessive intoxication and, most recently, included Judge Thomas Porteous of Louisiana convicted of bribery and perjury in 2010. The penalty for impeachment is stated in Article 1, Section 3 where “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
The Cabinet and Administrative Agencies and the Rise of a Fourth Branch of Government The Constitution does not mention a Presidential cabinet; however, the authority to create the Cabinet has been inferred from Article II, Section 2. This section states that the President “may require the Opinion, in writing, of the principal Officer in each of his executive Departments, upon any subject relating to the Duties of their respective Offices.” The “executive Departments” are created by Congress. The President appoints the “principal Officer in each of his executive Departments” subject to the “advice and consent of the senate.” The Cabinet includes the Vice President and the heads of the executive departments, who are called Secretaries, with the exception of the head of the Department of Justice, who bears the title Attorney General. Again, the idea for a Cabinet comes from England where the Secretaries are called Ministers and the Cabinet is called the Privy Council. The Privy Council is assembled as a formal body of advisors. During George Washington’s Presidency, there were only five Cabinet members: the Vice President, the Secretary of State, the Secretary of Treasury, the Secretary of War, and the Attorney General. At one time there was a Department of War and separate departments for the Army, Navy, and Air Force but these have been merged into the Department of Defense. There was also a separate Post Office Department, but the Post Office Department is now a separate, non-Cabinet level agency. Today, there are sixteen Cabinet members. Members of the Cabinet departments are listed below (with their dates of creation by Congress) in the order in which they would succeed to the Presidency in the event of a vacancy. Remember that the Speaker of the House and President pro tempore of the Senate follow the Vice President in order of succession, then the Secretary of State. Vice-President Secretary of State (1789) Secretary of Treasury (1789) Secretary of Defense (1947) Attorney General (1870) Secretary of Interior (1849) Secretary of Agriculture (1889) Secretary of Commerce (1903) Secretary of Labor (1913) Secretary of Health and Human Services (1953) Secretary of Housing and Urban Development (1965) Secretary of Transportation (1966) Secretary of Energy (1977) Secretary of Education (1979) Secretary of Veterans Affairs (1989) Secretary of Homeland Security (2003) In addition to the Vice President and heads of executive departments, there are a number of Cabinet-level officials, who, though they are not officially members of the Cabinet do attend Cabinet meetings. These presently include: White House Chief of Staff U.S. Trade Representative Director of National Intelligence Representative of the United States to the United Nations Director of the Office of Management and Budget Director of the Central Intelligence Agency Administrator of the Environmental Protection Agency Administrator of the Small Business Administration The Cabinet meets when the President calls a meeting. These meetings were often weekly but meetings of the entire cabinet have become more of a rarity recently. Now, Cabinet meetings are typically conducted with only a few Cabinet members, advisers, and other officials concerned with a particular issue. The Cabinet has nearly doubled in size since the end of WWII. This has been the Congressional response to the growing demand for government action on a growing list of national social, political, and economic needs. The return of members of the armed forces, many of whom were injured, from the Vietnam War, following WWI, WWII, the Korean War, and other military actions, created the pressing need for the elevation of the Veterans Administration (created in 1930) into a Department of Veteran Affairs (1989). Cabinet-level departments and most federal agencies are created by Congress through statutes called "enabling acts" that define the scope of the department or agency's authority. Congress must designate a department as having Cabinet-level rank. The creation of a cabinet-level department, which confers prestige, is made when the mission of the department is considered to be broad and significant to the nation. Once a department is created, Congress must provide funding for employees to support the Department’s mission. The four departments in Washington’s Cabinet had approximately 1000 nonmilitary employees. Today, the fifteen departments of the Cabinet have over 4.2 million employees, with 3 million of these in the Department of Defense. While the budget for the Department of Defense is over $600 billion per year, the Department of Health and Human Services with approximately 70,000 employees had an authorized budget of $1.020 trillion in 2015. Unlike “executive Departments,” federal administrative agencies are never mentioned in the Constitution. Congress has, through a series of “enabling acts,” created a host of independent administrative agencies. These agencies are independent only in that they are not subordinate to one of the executive departments. These agencies are not to be confused with a host of offices, bureaus, institutes, councils, and the like that are subordinate to and organizationally part of a Cabinet-level department. For instance, the Internal Revenue Service is a bureau within the Department of the Treasury; Food Safety and the Forest Service are within the Department of Agriculture; and the National Nuclear Security Administration and the Energy Information Administration are within the Department of Energy. See the companion website for the organization chart of the Department of Interior. Note that almost all of the subagencies attached to the Department of Interior have an environmental focus. The U.S. Fish and Wildlife Service will play a prominent role in the detailed analysis of the Endangered Species Act later in this book. All of the executive departments and almost all of the independent administrative agencies are part of the executive branch. A few, such as the Congressional Budget Office, the Government Accounting Office, and the Library of Congress, are located within the legislative branch of government. The U.S. Sentencing Commission and the Judicial Conference of the U.S. are two of a handful of agencies of the judicial branch. An internet search for “list of Federal Agencies” will reveal a mindboggling number of federal administrative entities. In addition to the fifteen executive departments with 1.2 million nonmilitary employees, you will find over 450 independent administrative agencies and subagencies with over 1.6 million nonmilitary employees. You will discover among many, many others the Environmental Protection Agency, the Nuclear Regulatory Commission, the Central Intelligence Agency, the Federal Communications Commission, and the National Aeronautics and Space Administration. It is clear that the Framers with their three branches of government and their checks and balances did not envision the exponential growth of a federal administrative bureaucracy. This “fourth” or administrative branch now has more authority and power over nearly every detail of the lives of the people than the three other branches combined. The administrative branch affects the lives of U.S. citizens and residents in two main ways: regulation-making and adjudication. The process of making rules and regulations (both words are used interchangeably here) and adjudicating claims and disputes is governed by the Administrative Procedure Act (APA). The APA was enacted in 1946 to ensure fairness in rulemaking and due process in adjudication, and to establish a means to oversee government agency action. The APA established uniform administrative law procedures for a federal agency's promulgation of rules and adjudication of claims. The APA also sets forth the process for judicial review of agency action. Each time a law is passed, the authority for effectuating the law is given to a department or agency, or usually to several. Congress passed the Clean Water Act (CWA) in 1972. Section 404 of CWA helps to protect wetlands by regulating the discharge of dredged or fill material into wetlands adjacent to “waters of the United States.” Congress decided that the EPA and the U.S. Army Corps of Engineers would share enforcement authority of Section 404. While Section 404 is a small part of the Clean Water Act, it is illustrative of the regulatory process. In order to carry out the provisions of Section 404, the EPA and Corps of Engineers needed to promulgate regulations that would provide definitions and procedures for doing so. For starters, in order to regulate the discharge of dredge and fill material in wetlands, it is important to define what a “wetland” is and be able to physically delineate where they are. In order to create a definition for a “wetland” the EPA and Corps of Engineers must follow the procedures described in the APA. The APA requires that all proposed rules (including the definition of words used in rules) or changes to existing rules be published in the Federal Register (FR). This “Notice of Proposed Rulemaking” (NPRM) lists the department or agency issuing the proposed rule and provides the language of and a rationale for the new rule. The APA also provides a means for the public to comment on the proposed rule. Typically, the NPRM gives the timeframe for written comments (usually sixty days) on the proposed rule and gives the date, time, and location of the any required hearing on the rule and the nature and extent of public participation. Departments and agencies are required to consider the concerns expressed in this period for comment. Participation in the process is important, but often overlooked by citizens, because it provides a unique opportunity for citizens to influence and shape their laws directly. When the text of a final rule is published in the FR, it must contain a discussion of the comments as well. These final rules or regulations are then organized into fifty subject-matter categories, known as titles, and published in the Code of Federal Regulations (CFR). The Federal Register is published daily, except for holidays, and is the official record of the proceedings of the executive branch of the U.S. government. As required by the APA, the FR publishes all executive orders and Presidential proclamations, all proposed new rules and final rules, all changes to existing rules, and all notices of hearings, adjudicatory proceedings, and grant applications. Changes to the CFR are published online daily and all regulations old and new are published in an annual edition of approximately 200 volumes. Most significantly, the CFR codifies the administrative law that directs the activities of the fourth branch of government. 2016 was a record-setting year for the FR with 81,640 pages of proposed rules and notices surpassing the previous record set in 2010 by 235 pages. The number of proposed new rules and the number of final rules published annually has hovered between 3400-4100 and 2000-2900 respectively. These are the bricks and mortar of the federal administrative state. In addition to the federal bureaucracy, there are state and local bureaucracies making and enforcing their own rules. In order to adjudicate disputes or violations of these regulations, a system of federal administrative law courts has evolved. These courts are part of the departments or agencies they serve and are, thus, part of the executive branch and are distinct from judicial courts. Authorized by statutes, regulations (sometimes called rules or administrative laws) have the effect of law. Someone violating a regulation is, in effect, violating the statute that allowed its creation. All U.S. federal departments and agencies have the power to adjudicate and enforce laws within their specific areas of delegated power. In order to adjudicate and enforce administrative regulations the APA created the position of the Administrative Law Judge (ALJ). The Office of Personnel Management (OPM) administers the selection of ALJs, but the ALJs are hired by the specific agencies that require their service. Thus, all ALJs are employees of the executive branch. The APA does have protections in place to safeguard the independence of these ALJs and to ensure that they conduct trial-like hearings free from agency coercion or influence and that they objectively weigh the evidence and make factual determinations in making decisions. Over 1400 ALJs work for thirty-four separate agencies. Most federal agencies have a few to several dozen ALJs but the Social Security Administration alone has 1400 ALJs that handle approximately 700,000 cases a year. In addition, there are nearly 3000 non-ALJ personnel hired directly by their respective agencies that conduct administrative adjudication and preside at formal proceedings in the same manner as ALJs. The independence of non-ALJs is a matter of controversy since they report directly to the agency that hired them. In addition, many non-ALJs are not attorneys and come from varied backgrounds. Whether an agency uses ALJ or non-ALJ hearing officers depends on the statutory language that created the agency in the first place and, thus, some agencies are required to use ALJs, but many are not. Agency proceedings, for instance, that are required to be on the record are required to use ALJs. It is important to note the ALJs are considered Article I judges because they were created by the legislative branch through an act of Congress. These judges were at first called “hearing officers.” They do not have lifetime appointments. Article I courts are often called legislative courts or tribunals to distinguish them from the Article III courts (the Supreme Court and the federal inferior courts) to be discussed in the next section. There are also Article IV tribunals, the territorial courts established under Article IV of the Constitution. The power of Article I tribunals has been challenged in Article III courts with the Supreme Court allowing the existence of these tribunals but limiting their power, especially when life, liberty, or property interests are at stake. Tribunal decisions as well as rulemaking are often subject to judicial review in an Article III court, that is, a party aggrieved by an agency action can sue. The basis for judicial review is also governed by the APA. It should be emphasized that the rulemaking and adjudication processes governed by the APA are considerably more complex and are strongly influenced by case law. This will be discussed in detail in the chapter on administrative law. After following all procedures required by the APA, the CFRs for §404 of the Clean Water Act (CWA) and the definition of a “wetland” were published. See 40CFR Ch. 1, PART 230-SECTION 404(b)(1)-GUIDELINES FOR SPECIFICATION OF DISPOSAL SITES FOR DREDGED OR FILL MATERIAL on our companion website and read section 230.3(t). In order to regulate the discharge of dredge and fill material into wetlands adjacent to “waters of the United States,” the EPA and Corps of Engineers must use definition of what a “wetland” is to physically delineate where they are. The 1987 Corps of Engineers Wetlands Delineation Manual and Regional Supplements, posted on our companion website, is used to do exactly that. But, Section 404 of the CWA only protects those wetlands “adjacent to waters of the United States.” To learn what “waters of the United States” means we must seek another CFR definition. See our companion website again for 40CFR Ch. 1, Part 230.3. Read here §230.3(s). Now, when dredged or fill material is deposited in a wetland adjacent to waters of the United States, the EPA/Corps of Engineers will have basis for taking the appropriate enforcement action. Finally, at the state level the executive branch is in charge of implementing state legislation. The federal government model (agencies, rulemaking, adjudications) for carrying out legislation has been copied to varying degrees on the state level.
Article III and the Judicial Branch
The United States Judicial System In the hierarchy of authorities, statutory law outranks case or decisional law created by the judicial system. The application of a statute or its regulations to specific circumstances is often the subject of litigation, and the courts interpret and give meaning to the statute and its regulations in these cases, but case law can always be overturned by statutory law as long as the statute is constitutional. Yet, because of its common law foundation, the judiciary is still the preeminent source of law in the U.S. and, because of its unique form of federalism, the judicial system has evolved into a parallel system of federal and state courts.
Federal Courts Article III, Section 1 stipulates that the “judicial Power of the United States shall be vested in one supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” With the Judiciary Act of 1789, Congress established a six-member Supreme Court composed of one Chief Justice and five Associate Justices. This statute also created our tri-level federal court system by adding trial courts and intermediate appellate courts to the national judiciary. Each of the thirteen states became a federal judicial district. Each of the thirteen federal judicial districts was given its own trial court. The thirteen federal district trial courts were then grouped into three geographically-based judicial circuits. The federal judicial circuit courts were granted appellate jurisdiction over the decisions of the federal district trial courts within their geographic circuits. Judges on the circuit courts initially consisted of one district judge and two Supreme Court Justices who literally “rode the circuit” on horseback. Eighty years later, the Judiciary Act of 1869 set the number of Supreme Court Justices at nine, which is the number of Justices on the Court today (though at various times during the intervening years the number fluctuated with seven, eight, nine, and even ten Justices). As states were admitted to the union, new district and Circuit Courts were added to the federal judiciary so that today there are twelve circuits covering the fifty states and the District of Columbia and ninety-four district courts within these eleven circuits. The courts for theses circuits are officially referred to as United States Courts of Appeals for their respective circuits. Hence, for example, the federal appellate court for the Second Circuit, which includes New York, bears the title “United States Court of Appeals for the Second Circuit.” The District of Columbia also has a Circuit Court. It is sometimes referred to as the “Little Supreme Court” because it is the second most powerful court in the United States due in large measure to the influence it yields in overseeing the federal bureaucracy. In addition to hearing appeals of federal district court rulings on administrative agency regulations and actions, either under a specific congressional enabling act or pursuant to the APA, many cases involving the review of federal administrative agency rule-making or decisions are sent directly to the D.C. Circuit Court because the agency in question is headquartered in Washington D.C.. Please view the map of United States Circuit and District Courts on our companion website. The United States Court of Appeals for the Fourth Circuit is located in Richmond, Virginia. The Fourth Circuit consists of nine federal district courts. Locate the following: the Eastern, Middle, and Western Districts of North Carolina; the District of South Carolina; the Eastern and Western Districts of Virginia; the Northern and Southern Districts of West Virginia; and the District of Maryland. There are five judges authorized by Congress for the Northern District of West Virginia. But the thirty-two counties that it serves are divided into four divisions with courts located in Clarksburg, Elkins, Martinsburg, and Wheeling. In the District or trial courts a single judge usually presides over both jury and non-jury trials. The Court of Appeals for the Fourth Circuit is authorized by Congress to have fifteen active judges. The number of judges in each Circuit is different, but appeals are usually heard by a group of three judges. For the ultimate federal court system resource see www.uscourts.gov. The Circuit Courts hear appeals from the district courts and from decisions of federal administrative agencies located within their circuits. For example, appeals of matters relating to the federal administrative agency called The National Labor Review Board (NLRB), will be heard either by the Court of Appeals of the place of the violation or by the United States Court of Appeals for the District of Columbia, where the NLRB is headquartered. The federal judiciary now also includes specialized courts charged with hearing appeals in specific types of cases. For example, the thirteenth federal circuit court, the Court of Appeals for the Federal Circuit, handles appeals that involve patents as well as appeals from the Court of Federal Claims and the Court of International Trade. Federal district courts are courts of general jurisdiction that can hear both civil and criminal cases under the federal Constitution or a federal statute and controversies between citizens of different states. They are not restricted by law to hearing only disputes limited to a specific subject matter. District courts are the tribunal where a lawsuit is brought and tried. In 2016, just under 370,000 cases were filed in federal district courts. In civil actions, aggrieved parties, who may be persons, corporations or other legal entities, rather than government prosecutors commence the case by filing a complaint. It is the responsibility of the party filing the civil action, referred to as the plaintiff, to assert both the factual and legal bases that would entitle them to the legal or equitable relief they are seeking. The party against the lawsuit, the defendant, attempts to contradict the plaintiff’s narrative. The defendant joins the plaintiff in court and presents evidence to persuade the fact finder, either the jury or the judge, about the factual issues at hand in the lawsuit. Upon hearing the evidence and the arguments made by each party’s lawyer, the jury or judge as finder-of-fact renders a verdict in favor of one of the parties. When a jury serves as the finder-of-fact, the juror must reach their factual verdict according to the instructions about the applicable law given them by the judge. District court decisions are open to changes on appeal. The appeal stage may involve two levels of scrutiny: one from an intermediary court and another from the court of last resort. At the federal level, the court of last resort is the Supreme Court. However, unlike in civil law countries, the appeal in the American legal system involves only a review of the application of the law by the lower court or courts and not of the facts of the case itself. Thus, except in cases of reversible error, the district court has the last word in factual matters. Additionally, in light of the very small number of appellate courts and the finite number of cases each can take on at any given time, it is obvious that only a small percentage of the district court decisions are appealed. In 2016, approximately 60,000 district court decisions were taken on appeal by the Circuit Courts. This may seem like a large number, but it represents just over 15% of the number of cases initiated in federal district courts in that year. A party who wants to appeal a decision of a Federal Court of Appeals or of a state court files a "petition for writ of certiorari" with the Supreme Court. A minimum of four of the nine Justices is required to grant a writ of certiorari. This is referred to as the "rule of four". If the Supreme Court grants the petition, a writ of certiorari is issued to the lower court. “Certiorari” is a Latin word meaning “to be informed”. The writ received by the lower court acts as an order to provide a record of the legal proceedings in the case and to send them to the Supreme Court for their review. When the Supreme Court “grants cert”, the case is then scheduled for the filing of briefs and for oral argument. Approximately 7,000 petitions for a writ of certiorari are received by the Supreme Court each year, but the Supreme Court grants certiorari in only an average of 70 cases. Cases decided by a Federal Courts of Appeals contain important questions of law. The fact that Supreme Court reviews so few cases each year means that in term of important precedents most federal law is appellate law. The significance of the denial of certiorari by the U.S. Supreme Court has been debated but the Supreme Court has explained that there are many reasons for the denial of certiorari and that a denial contains no implicit approval or disapproval of the rationale for the lower court decision. When the Federal Court of Appeals for two or more circuits disagree on a similar set of facts or issue, then the Supreme Court has discretion to intervene in order to resolve their conflicting holdings. It often takes several years for the Supreme Court to grant certiorari to cases involving an issue on which the circuit courts are split.
State Courts Each of the fifty states of the United States has its own system of courts, the structure of which now mirrors the federal court system. While the court nomenclatures differ from state to state, they follow the same common law principles as the federal court system. “Lower” trial courts have to follow precedents established by decisions of higher appellate courts, both intermediate level appellate courts and courts of last resort, in cases involving similar facts. Likewise, intermediate appellate courts must adhere to precedents set in similar cases by courts of last resort. In New York, most disputes that involve state law-either statutory or case law-will be tried in trial courts, which, in New York, are known as the “Supreme Court.” These decisions can be appealed to the Appellate Divisions of the Supreme Court. The court of last resort in New York, unlike in most other states, is known as the Court of Appeals. Information about the court system in each state can be found on the National Center for State Courts’ website at www.ncsu.org. The highest court in the state of New York is called (with some confusion) the Court of Appeals. According to the 2016 Annual Report of the Clerk of the Court to the Judges of the Court of Appeals of the State of New York, “the Court and its Judges disposed of 3,954 matters, including 225 appeals, 1,232 motions and 2,497 criminal leave applications. Add to this caseload the caseload of the highest courts of the forty-nine other states and remember that the Supreme Court of the United States disposes of about 70 cases a year. It is abundantly clear that the overwhelming majority of lawmaking occurs in the states.. In addition to the system of state courts that parallels the federal system, the trial appellate and, court of last resort, each state judicial system contains a host of its own of special courts, courts of limited jurisdiction. These include criminal courts, family/divorce courts, juvenile courts, and probate courts. There are also county and municipal courts as well as small claims, traffic, and police courts. These latter courts get little attention but this is where the majority of the U.S. population has contact with judges and the law.
Jurisdiction Jurisdiction refers to the power or right of a court to hear and decide a lawsuit. The Tenth Amendment to the Constitution states: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, or to the people. Thus, the judicial jurisdiction of the federal courts consists only of the power given to it by the Constitution or by federal legislation. Jurisdiction for any other type of litigation remains in the state courts. Article 3, Section 2, Clause 1of the Constitution states: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. Section 2 of Article III establishes the jurisdiction of the federal courts. Federal courts can decide all cases involving the Constitution, the laws of the United States or its treaties. Federal courts also decide all cases concerning U.S. ambassadors, and public officials and consuls, all cases involving national waters and international seas (admiralty and maritime), all cases in which the United States is a party, all cases between citizens of the same state who are claiming land under grants from other states, and all cases that involve one or more states, or the citizens of different states. The parts of Article 3, Section 2, Clause 1 in bold letters were rendered null and void by the 11th Amendment that states: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. This simply means that no state can be sued in federal court by a citizen of another state or by anyone from another country. It is an example of sovereign immunity for states. In another example of how case law defines the Constitution, this sovereign immunity was extended in Hans v. Louisiana, 134U.S.1 (1890) to suits by residents of the same state. This decision left open the question of whether a state can be sued in state court by a citizen of that state. In Alden v. Maine, 527 U.S. 706 (1999) the Supreme Court ruled that a state’s sovereign immunity did not allow suits against a state in state court. Thus, case law has fully defined the meaning of the 11th Amendment. Article 3, Section 2 Clause 2 states: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. "Original jurisdiction" means that the Supreme Court serves as the trial court and hears the case first before any lower court. This original jurisdiction has been limited to cases between states and cases involving ambassadors and the Supreme Court has consistently ruled that the Constitution prevents congress from expanding the Supreme Court’s original jurisdiction. Since President Washington appointed the first two justices of the Supreme Court two days after Congress passed the Judiciary Act of 1789, there have been nearly two hundred state-versus-state original jurisdiction cases and only two cases involving ambassadors. Thus, the overwhelming majority of cases heard by the Supreme Court arrive on appeal from lower federal courts or state courts. Article 1, Section 8, Clause 4 of the Constitution places bankruptcy under federal jurisdiction and gives Congress the authority to pass laws that establish "uniform Laws on the subject of Bankruptcies throughout the United States". The first federal bankruptcy laws were passed by Congress in 1800. These laws have been repealed or amended several times. Modern bankruptcy law began in 1898 with the Nelson Act that was amended by the Bankruptcy Reform Act of 1978 now found in Title 11 of the U.S. Code. Bankruptcy cases are always filed in United States Bankruptcy Courts. There is a federal bankruptcy court in each of the ninety-four federal judicial districts. These courts can only hear cases relating to bankruptcy, i.e. situations in which a debtor becomes insolvent and is unable to pay creditors. This is an example of subject matter jurisdiction. An appeal of a District Court bankruptcy case is handled like any other civil appeal. Article 1, Section 8, Clause 8 gives Congress the authority to enact laws that “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." While this clause is known as the “copyright clause”, it is also the source for U.S. patent law found in Title 35 of the U.S. Code. The first federal copyright law was passed in 1790 and was succeeded most recently by the Copyright Act of 1976, which together with its subsequent amendments, is found in Title 17 of the U.S. Code. Article 1, Section 8 states that “Congress shall have the Power” to “provide for the Punishment of counterfeiting the Securities and current Coin of the United States” (Clause 6) and to “define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations” (Clause10). Federal laws covering these types of financial crimes are found in Title 18, Chapter 25: Counterfeiting and Forgery and Chapter 81: Piracy and Privateering. For the crimes listed above the Constitution granted the power and conferred a duty upon Congress to pass appropriate legislation. In addition, the last clause of Article 1, Section 8 states that Congress shall have the power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department of Officer thereof.” This “necessary and proper” clause gave Congress one of the most powerful (and controversial) tools to pass legislation for many other federal crimes. Again, the jurisdiction of the federal courts is exclusive when Congress has passed legislation authorizing it. Title 18 of the U.S. Code (Crimes and Criminal Procedure), § 3231 (District Courts) states: The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States. The district courts are therefore the first line of defense against crimes against the United States. A multitude of crimes are codified in Title 18 of the U.S. Code but many other crimes are codified under other titles. For instance, wildlife trafficking crimes are listed in Title 16. This would include crimes against endangered species listed in Chapter 35 (the Endangered Species Act) and against wildlife, fish, and plants listed in Chapter 53 (the Lacey Act) both of Title 16. Many federal agencies have been granted powers to investigate federal crimes. Wildlife trafficking crimes mentioned above are investigated by special agents of the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration and are prosecuted by attorneys of the Department of Justice’s Environment and Natural Resources Division (ENRD). Criminal violations of the Clean Water Act (Chapter 23 of Title 33-Navigation and Navigable Waters) are investigated by special agents of the Environmental Protection Agency’s Office of Criminal Enforcement and prosecuted by the Environmental Crimes Section of the Department of Justice’s ENRD and/or through one of the ninety-four U.S. Attorney's Offices across the country. Other federal crimes include tax evasion, child pornography, kidnapping, immigration violations, hate crimes, and many others. The Sixth Amendment calls for trial “by an impartial jury of the State and district wherein the crime shall have been committed.” Within the federal court system, Rule 18 of the Federal Rules of Criminal Procedure specifies which federal court may hear a particular criminal case: Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed. The court must set the place of trial within the district with due regard for the convenience of the defendant and the witnesses, and the prompt administration of justice. For civil actions in which the United States is a plaintiff, Title 28 of the U.S. Code (Judiciary and Judicial Procedure), Section 1345 states: Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress. In 2016 354,279 civil and criminal actions were filed in U.S. District Courts. 274,552 of these were civil filings and 79,787 were criminal prosecutions. Of the 274,552 civil filings, the U.S. government was the plaintiff in only 5,401. This means that 269,151 or 98% of the civil filings did not involve the U.S. government as a plaintiff and thus did not involve exclusive federal jurisdiction, but relied on other types of jurisdiction not governed by the federal statute. Civil offenses against the United States are contained in many statutes. The Endangered Species Act, for instance, at 16 U.S. Code §1540 (see the companion website) – provides penalties and enforcement for both civil and criminal violations. Title 28 of the U.S. Code, §1331 states that the “district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. Thus, federal courts also have jurisdiction to hear cases involving a “federal question”, that is, a controversy between private litigants in a civil action over the Constitution, federal laws or treaties. Federal jurisdiction may also include “diversity” jurisdiction where the litigants are from different states. If a couple in Illinois sues a company in Wisconsin for breach of contract, the plaintiffs have the choice of filing the suit in Illinois state court or in federal district court. In this situation the jurisdiction is also said to be “concurrent” and the plaintiff may bring suit in either federal or state court. However, if they file the suit in state court, the defendant has the right to remove the case to a federal district court. In contrast, a dispute arising between two citizens of the same state with regard to a matter arising entirely within that state would have to be brought in a court of that state absent a claim of infringement of a federal statutory or constitutional right. Adding to the complexity of litigation within the United States, state courts frequently apply federal law or the laws of other states, and federal courts make rulings based upon applicable state laws. Federal law is amplified by state law in some places where federal law fails to speak or expressly defers to state law. It should come as no surprise that in the United States, litigation arises over the issue of which court or courts (federal or state) are empowered to decide specific cases. Likewise, litigants argue in court about what law (federal or state) a court must apply or about which court or courts have jurisdiction to settle a jurisdictional dispute. The outcome of either of these determinations can have a significant impact on the ultimate judicial ruling.
Sovereign Immunity Can a person sue the United States? To answer this question the definition of “a person” is required. The Endangered Species Act at 16 USC §1532 (13) states that: The term “person” means an individual, corporation, partnership, trust, association, or any other private entity; or any officer, employee, agent, department, or instrumentality of the Federal Government, of any State, municipality, or political subdivision of a State, or of any foreign government; any State, municipality, or political subdivision of a State; or any other entity subject to the jurisdiction of the United States. While the concept that legally a “person” may be a public or private legal entity, as well as a human being, is not intuitive, it is found in many other statutes. So, can this person sue the United States? As explained above the Eleventh Amendment and later cases affirm that states possess sovereign immunity and are therefore immune from being sued in federal court without their consent. The principle of sovereign immunity in U.S. law is a legal doctrine inherited from the English common law (also known as crown immunity) by which the king or a national government or state cannot commit a legal wrong and is immune from civil suit or criminal prosecution unless they consent to being sued. The principle of sovereign immunity is not mentioned in the U.S. Constitution. The courts, however, have strongly supported this doctrine. As stated in the Supreme Court decision of Alden v. Maine, 527U.S.706 (1999): "the State's immunity from suit is a fundamental aspect of sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today . . .” and further “sovereign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself. ... Nor can we conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers.” Also, the U.S. Court of Appeals for the Fifth Circuit in Price v. United States, 81 F. 3d 520 (5th Cir. 1996) stated: "It is an axiom of our jurisprudence. The government is not liable to suit unless it consents thereto, and its liability in suit cannot be extended beyond the plain language of the statute authorizing it." Statutes that authorize lawsuits against the United States include the Federal Tort Claims Act of 1946 (28 U.S. Code § 1346 - United States as defendant) that allows a person to sue the U.S. for the harmful acts of a federal employee, and the Tucker Act of 1881 (28 U.S. Code § 1491 - Claims against United States generally; actions involving Tennessee Valley Authority) that allows lawsuits over breaches of federal contracts or improperly assessed internal revenue taxes. Jurisdiction for lawsuits for monetary damages under the Tucker Act devolves on the United States Court of Federal Claims in Washington, D.C. When the claims are less than $10,000 the Court of Federal Claims has concurrent jurisdiction with the appropriate U.S. District Court. Other claims against the U.S. are filed in the appropriate U.S. District Court. Both the Tucker Act and the Federal Tort Claims Act are not broad waivers of sovereign immunity. These two statutes contain many limitations, and the courts have further defined the meaning of these two statutes. For example, Feres v. United States, 340 U.S. 135 (1950), the Supreme Court ruled that the Federal Tort Claims Act did not apply to injuries or death to members of the military sustained while on active duty that resulted from the negligence of other members of the military. Here sovereign immunity has been extended to the military. This issue will be thoroughly revisited later in this book when Howard Ball’s Justice Downwind is discussed.
Solicitor General The Solicitor General is (after the Attorney General and Assistant Attorney General) the third highest ranking member of the Department of Justice. The Solicitor General is in charge of and represents the Unites States in all litigation at the Supreme Court. Because the United States is involved in nearly 70% of all the cases that the U.S. Supreme Court decides, this position is extremely important, especially in the development of landmark cases discussed below. The Solicitor General and Deputy Solicitor-General are appointed by the President with the advice and consent of the Senate. The Office of Solicitor General also consists of staff attorneys and Assistants to the Solicitor General, who help prepare briefs, petitions and other legal documents. The Solicitor General determines the cases in which the United States will seek review before the Supreme Court as well as the legal position the government will take. The Solicitor General usually personally participates in oral arguments before the Supreme Court though a number of cases are argued by the Deputy Solicitor General or Assistants. The Office of the Solicitor General often files amicus curiae briefs in cases where the United States is not a party but has a significant interest in the outcome of the case. The Office of the Solicitor General reviews cases decided against the United States in the federal courts of appeal and will determines if the government will appeal to the Supreme Court. The Office of the Solicitor General also reviews cases decided adversely to the government in the federal district courts and will determine whether the government will file an appeal. Landmark Cases Landmark cases establish a significant new precedent or substantially change an existing precedent. The importance of these landmark decisions results from the significant social, political, and economic changes that may result. Such decisions may establish a completely new principle, like judicial review in Marbury v. Madison (Sidebar #3) or they may reverse an established principle like when Plessy v Ferguson’s “separate but equal” doctrine was overturned by Brown v. Board of Education (Sidebar #8) or they may define the real practical meaning of a statute like when TVA v. Hill gave the Endangered Species Act real teeth. TVA v. Hill will be examined in detail in the chapter on the Endangered Species Act. See the companion website for the Landmark Cases link to find resources for further reading. It is natural that most landmark cases are decided in the Supreme Court but remember that of the roughly 7000 appeals each year from lower courts the Supreme Court hears only about seventy cases. This means that the U.S. courts of appeals make landmark decisions that are not reviewed by the Supreme Court. While the Constitution is the bedrock of the U.S. legal system, its practical meaning as well as the meaning of federal statutes has always been determined by decisions of the courts, especially the Supreme Court. These cases involve application of the Constitution or of federal statutes to specific facts that are in controversy between the parties. The true meaning of the Constitution and federal statutes is determined by the decisional law. Later in this book there is an important exercise, that is, to write a paper about a statute and its regulations, actually a specific section of a statute and its associated regulations and then determine how the meaning of this statute section and its regulations have been determined in the courts. This means that this section of a statute and/or its associated regulations have been applied in the real world and litigation has resulted. Case law then determines the true, practical meaning of the statutory and regulatory language. In order to properly choose and find statute, a section or subsection and the relevant regulations as well as to find the relevant case law requires legal research strategies. Ch. 3 begins to open the door to the powers of legal research.