The separation of powers The US Constitution The separation of powers

1. The federal government

National federal government The legislative branch The executive branch The judicial branch The American Constitution of 1789 established a national government, and allocated powers horizontally and vertically.   The most important horizontal distribution of powers is at the national level, where power is divided among the three branches of national government. This is referred to as the separation of powers. The first three articles of the U.S. Constitution define how powers are allocated between the three branches.

The legislative branch Federal government The legislative branch Article 1 of the U.S. Constitution Article I defines the powers of the legislative branch. It creates Congress, which is the only part of the federal government which can enact new laws, (Executive branch agencies can issue regulations with the full force of law, but only under the authority of laws previously enacted by Congress) and specifies that Congress is divided into a lower house – the House of Representatives – and an upper house – the Senate. Federal laws are collected in the United States Code – not a code in the French sense but a collection of legislation grouped according to subject matter.

Executive Departments and Agencies The Justice Department Federal government The executive branch Article 2 of the U.S. Constitution Executive Departments and Agencies Article II defines the powers of the executive branch. It creates the office of President – the President is head of state, head of government and the Commander-in-Chief of the armed forces. He is also responsible for the execution and enforcement of the laws enacted by Congress. He chooses the heads of the Executive Departments, who are all called Secretary (Secretary of State, of Defence…) except for the head of the justice department who is called the Attorney General (currently Loretta Lynch US attorney eastern district new york). The Department of Justice investigates and enforces federal criminal law, and includes the Drug Enforcement Administration and the Federal Bureau of Investigation, and federal lawyers who work in the Offices of the United States Attorneys. (Are also executive agencies eg CIA or Environmental Protection Agency) whose heads are not part of cabinet and who propose and establish regulations. May have tribunals as part of their administrative structure but these are not courts in the full constitutional sense, and their decisions may be challenged in ordinary civil courts (=judicial review of an administrative agency action). state attorney generals are generally elected The Justice Department D.E.A. F.B.I. U.S. Attorneys

Article 3 of the U.S. Constitution Federal government The judicial branch Article 3 of the U.S. Constitution Article III defines the powers of the judicial branch. We will look at the court system, and the powers and structure of the judicial branch next week.

Federal government Checks and balances: powers allowing each branch of government to restrain the activity of the other two branches Include judicial review (established in Marbury v Madison, 1803) The framers of the Constitution did not want to give too much power to any one branch of government, so they included a number of ways that the three branches could restrain each other’s’ powers. These are called Checks and Balances; For example– ???? President can veto a law passed by Congress, al through Congress can override the veto by a two-thirds majority. The President appoints federal judges, with the advice and consent of the Senate A very important part of the system of checks and balances for us is the fact that The judicial branch can hold that acts of Congress or the President are unconstitutional. – violate the US Constitution This power is = judicial review Not explicitly granted in the Constitution but established in the case Marbury v Madison (1803). (All courts have this power but decisions of lower courts reviewed by higher ones, and USSC is court of last resort)

The federal government and the states 2. Federalism The federal government and the states

Federalism The U.S.A. has a federal system of government, with power shared between the (national) federal government and the 50 states So that is how power is distributed at federal level. But as we know, the US has a federal system of government, with power shared between the (national) federal government and the 50 states 9

The legislative branch 50 state governments State government The legislative branch The executive branch The judicial branch In each of the 50 states there is a state government which mirrors the federal government _ legislative branch bicameral legislature enacts state law Executive branch, headed by the state governor - judicial branch, state courts and state judges   10

The federal government Federalism The federal government Limited powers enumerated in the U.S. Constitution State governments All powers not specifically granted to the federal government or prohibited to the states So how is power distributed vertically – between the federal gov and the states The US was created when 13 independent former colonies joined together. They were only willing to join together if the new federal govt had strictly limited powers. The Constitution “enumerates” or specifies the different limited powers given to the different branches of the new national government. According to the 10th Amendment of the Constitution, powers not explicitly given to the federal govt in the Constitution, or prohibited to the states in the Const, are reserved to the states or the people. – generally anything which is not an enumerated federal power, is a state power.

Powers of Congress (Article 1, Section 8) Powers given expressly to the federal government Article I, Section 8 of the Constitution grants Congress certain specific enumerated powers. those that could not be reasonably managed on a state level coin money establish post offices establish an army and navy declare war borrow money establish rules of naturalization of bankruptcy and of copyrights and patents punish piracies and felonies committed on the high seas offences against the law of nations the “Commerce Clause” – regulate commerce with foreign nations and between the states end with necessary and proper clause – a general grant of the power to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers”   Broad powers in most areas of criminal and private law are left to the states – concretely means that most American law is state law

Federalism The federal government is also empowered: to regulate interstate and international commerce (the Commerce Clause) to make all laws necessary to execute these enumerated powers –the Necessary and Proper Clause) McCulloch v Maryland (1819) Broad interpretation of these clauses has enabled an expansion of federal powers. Heart of Atlanta Motel v. United States (1964)

Federalism What happens when there is conflict or overlap between state and federal action? The Supremacy Clause (Article VI) establishes the U.S. Constitution, federal statutes, and U.S. Treaties as "the supreme law of the land”. Federal law preempts state law Constitutional norms can invalidate state laws Areas of overlap between federal and state action Often both state and federal government have laws relating to a particular subject.   The Supremacy Clause (Article VI, Clause 2) establishes that the US Constitution is the highest source of law, followed by federal laws and treaties. If Congress has legislated in an are which it has the constitutional right to lefgislate in, then federal law pre-empts state law. However, if Congress has exceeded its powers then the law can be struck down Cosntitutional norms can invalidate state laws – rights and protections granted in the the U.S. Constitution (in particular the Bill of Rights) can be enforced by the courts against the states e.g. the protection against cruel and unusal punishment found in the 8th amendment means that states are forbidden to execute minors

3. Relations between the states

Relations between the states Privileges and Immunities Clause (Article IV) Legal relations between the states are governed by the Full Faith and Credit Clause (Article IV) Finall I want to consider the distibution of power between the states. ,The Constitution also imposes legal obligations on the states in their relationships with each other. States are not allowed to discriminate against citizens of their states. (Privileges and Immunities Clause, Article IV). The Full Faith and Credit Clause of Article IV, Sec.1 requires the courts of one state to respect the “public acts, records and judicial proceedings” of other states. This clause was particularly in the news in relation to gay marriage in the US, when some states had started to allow gay marriage and others hadn’t, there was a question about whether constitutionally states which did not themselves marry gay couples were required to recognise gay marriages carried out in other states. This is now moot since the OBERGEFELL v. HODGES decison this summer, which established? Constitution gives the right to gay marriage in all states In the recent case of Windsor v. United States, the Supreme Court ruled that Section 3 of the Defense of Marriage Act (DOMA), was unconstitutional. Section 2 of the same act, however, says that "No state... shall be required to give effect to... any record of any other state... respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state..." If the Full Faith and Credit Clause of the Constitution applies, it will require Section 2 of DOMA to fall as well. Recent case in Ohio court rules must accept marriage in Maryland despite state ban. 16

GONZALES v. RAICH (2005) What is the legal issue in this case? What facts gave rise to this case? What did the USSC decide in this case? On what grounds? Was the decision unanimous?

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