The American Legal System Advanced Legal English 403 Dr Myra Williamson Assistant Professor of Law KiLAW Fall 2012

Topics to be covered 1. Federalism 2. The powers of federal and state governments 3. The Federal Government and the Legal System 4. State Government and the Legal System

Federalism Citizens in the US are governed by two separate governments: federal and state. This is called “federalism” Federalism is “A system of government in which power is divided between a central authority and constituent political units (ie states)” Federalism is “A system of government in which the people are regulated by both federal and state governments” Hames & Ekern, p.17

Federal States – eg. Australia Australia is a federation - it has a federal government and it has 7 states:

Other federations…. India – 28 states and 7 territories Canada – 10 provinces and 3 territories Germany – a federation of 16 states USA – let’s look more closely at this one

USA is a federation The United States of America is a federation: power is divided between the federal government and state governments

USA and federalism Each state has power to make laws in its own states The Federal Government has power to make laws that apply to all 50 states States cannot make laws that conflict with federal laws If Federal Government makes a law which is outside of its express or implied powers, the US Supreme Court has the power to “strike down the law” for being unconstitutional Example: US v Lopez (1995) Held: the federal government went beyond its powers in passing a law that prohibited the carrying of guns near schools

Powers of the Federal Government The power of the federal government to regulate and make laws is limited by the US Constitution The US Constitution grants express and implied powers to Congress to make laws Express powers = include the power of Federal Government to regulate matters such as: Collecting taxes Regulating commerce between states and with foreign nations The coining of money Establishing the post office Declaring war Maintaining a navy Implied power = The Federal Government also has the power to make laws that are necessary and proper for executing any of the stated powers

Express powers & implied powers Express powers: powers given to Congress that are spelt out in the Constitution Implied powers: the power that Congress has to regulate that is derived from the express powers Example: maintain a navy – Congress has the express power make laws to maintain a navy; it has the implied power to make laws that will govern who can serve in the navy, how many ships will be needed, training and education etc of people in the navy

Express powers - source Express powers are listed in Article 1, Section 8 of the US Constitution Implied powers – not listed but they must be related to one of the express powers Note that anything else (that falls outside these two areas) is for states to make law on

Theory v reality In theory, the federal government’s law-making powers are quite limited In practice, the federal government’s power to make laws is extensive

Powers of the State Government States have broad powers to make laws that apply within the state boundaries BUT they cannot make laws that conflict with federal laws Nor can they make laws in areas that are reserved for the federal government Preemption = refers to the right of federal government to be the exclusive lawmaker in certain areas