Lecture Topic 4: The Federal Courts and the Other Branches of Government

Overview

This lecture briefly outlines how the federal courts fit into the overall structure of the federal government. The U.S. Constitution contains seven articles. The first three articles establish the three basic branches of government: Article I establishes the legislative department of the federal government (the "legislative branch"); Article II establishes the executive department of the federal government (the "executive branch"); and, Article III establishes the judicial department of the federal government (the "judicial branch").

The legislative branch is the department of government that creates the federal laws. The executive branch is the department of government that administers and enforces the laws passed by the legislative branch. The judicial branch is the department of government that interprets the laws passed by the legislative branch.

The framers of the Constitution created three equal branches of government to prevent any one branch from having too much power. This structure is often referred to as the "separation of powers." In theory, no branch of government may perform functions reserved for the other branches of government. A separation of powers structure is designed to guard against a tyranny, like the central power wielded by an absolute monarch. Recall that the American revolution was a revolt against the tyranny of King George III of England. The design of the structure of the federal government was supposed to be an antidote for a centralized power structure like a monarchy which the American colonists found oppressive.

To supplement the dispersion of power created by the three part system of government, the system includes "checks and balances" among the three branches of government. This means that each branch has some powers over the other branches. Consider a few checks and balances in the power sharing structure. Congress may pass a law. However, the President may veto the law. Though Congress may override a veto with a supermajority vote. The judicial branch, in a process known as "judicial review," may declare a law unconstitutional and it may declare an action of the President unconstitutional. (Interestingly, the power of judicial review is an implied power of the judicial branch not specifically set forth in the text of the Constitution.) The President appoints most federal judges and the heads of regulatory agencies but the Senate confirms the appointment. Congress may remove federal judges, agency heads and the President through a process of impeachment for bad behavior. Though during good behavior a judge may not be removed nor have his salary reduced to insure that no undue influence is exercised on judgements made about the interpretation or constitutionality of a law.

Legislative branch

The legislative branch of the federal government is known as the "Congress". It consists of two elected bodies of persons: the House of Representatives (with 435 members, elected every two years to a two year term and apportioned among the states based on population as determined by a census--with every state having at least one representative elected to the "House"); and, the Senate (with 100 members, one-third of which are elected every two years to a six year term, with each state having two senators). [You should note that the 17th amendment to the U.S. Constitution modifies Article I to provide for direct election of senators. Before this amendment, senators were selected by the legislatures of the various states. Representatives in the House were always selected by popular vote.]

Legislation may be proposed by members of either the House or the Senate. Legislation is introduced for consideration when one or more elected representatives introduce a "bill". Before a bill can become a law, it must pass both houses of Congress. Following the required vote, the bill is transmitted to the President for signature. Upon signing by the executive, the bill becomes a law. The President may "veto" a bill by refusing to sign it. If the President vetoes a bill, Congress may override the veto by a super majority vote, in which case the bill will become law even without the signature of the President. [Read INTRO TEXT, Chapter 6, The Legislative System, pp. 69-80.] [Read INTRO TEXT, Chapter 7, Statutes, Form of Statute Law, pp. 81-83.]

It is, of course, an oversimplification to simply state that it is the role of Congress to create the federal laws. Not only does Congress enact laws, it also levies taxes and approves spending in a budget process. Moreover, Congress has the power to conduct investigations and hold hearings. Congress has the power to remove the President and other federal officials from office based on bad conduct. (For example, the House has the power to impeach the President or a federal judge. Impeachment is the term used for the formal charge outlining the basis for removal and is based on a vote in the House. If the articles of impeachment pass the vote in the House, then the matter is referred to the Senate for a trial.) From Lecture 3, you should recall that, while the President nominates many federal judges for office (including the justices on the Supreme Court), the appointment to an Article III federal judgeship is approved with the advice and consent of the senate. And, as discussed below in the description of the executive branch, the senate has advice and consent both over the approval of treaties (which require a two-thirds vote) and the appointment of ambassadors. Once approved, a treaty has the status of a United States law even though it comes into force outside the usual legislative channels and was primarily structured by the executive branch. [I say "primarily" structured by the executive branch because the senate can play a role in the content of a treaty. As part of its "Advice" power, the senate may adopt amendments to the text of a treaty. Also, the senate may add rules known as "understandings and reservations" stipulating how the U.S. interprets and administers the terms of a treaty which create legally binding conditions on the President if the treaty comes into effect. Lastly, the Senate may make "declarations" which create a record of the views of the United States on issues relevant to the treaty. In the case of treaties, the role of the senate is not simply to provide an up or down vote by giving "Consent."] The Constitution clearly grants the Congress the power to declare war, in Article 1, Section 8. This power is not shared with anyone, including the President (though, as noted below, the President is the Commander-in-Chief of the armed forces).

Executive branch

The executive branch of government consists of the President of the United States, the President's cabinet members (and certain others with similar rank but who are not considered cabinet members) and a variety of so-called "administrative agencies." This branch of government is tasked with administering and enforcing the laws. This may explain why a particular presidency is often referred to as an "administration" (e.g. the "Obama administration"). In addition to administering and enforcing the laws of the United States, the Constitution designates the President as the Commander-in-Chief of the armed forces. Additionally, the executive branch is primarily responsible for setting and conducting foreign policy. The President is responsible for negotiating treaties with foreign nations and for nominating ambassadors. The senate performs a supervisory role by approving treaties and ambassadors using the power of "Advice and Consent." It is thus through their senators that the people have an ongoing say in the foreign policy of the United States. Significantly, the individual states do not have the power to enter into any "Treaty, Alliance or Confederation." Foreign policy is the exclusive province of the federal government.

Cabinet members generally head the various executive departments within the United States government, but not always. They are nominated by the President and approved by a simple majority vote of the senate. Cabinet members serve at the pleasure of the President and may be fired.

Examples of cabinet members selected by the President include the Secretary of State, the Secretary of the Treasury and the Secretary of Defense. Additional examples of administrative agencies include the Securities and Exchange Commission, the Environmental Protection Agency and the Department of Labor. Note that not all agencies of the federal government have the same administrative structure. The Department of Labor is headed by a cabinet level appointee known as the "Secretary of Labor" just as the Department of Defense is headed by the Secretary of Defense. However, the Environmental Protection Agency is headed by the Administrator of the Environmental Protection Agency. This administrator is considered to have a rank equivalent to a cabinet level appointee but is not technically part of the President's cabinet. The Securities and Exchange Commission has a different structure. It is headed by a "Chairman" who is appointed by the President, but may not be removed. In addition to the Chairman, there are four other SEC commissioners. No more than three commissioners may be from the same political party. These additional provisions are designed to provide a particular level of non-partisanship and independence for the administration of this agency because its scope of authority covers the securities markets.

In general, the various departments within the executive branch are supposed to administer the laws of the United States and take care that those laws are faithfully enforced. However, the agencies of the federal government promulgate various rules, regulations and interpretations which elucidate the scope and meaning of the statutes which they are charged with enforcing. This activity is often referred to as "rule-making authority". In practice, it can look a lot like law making. A common criticism is that this law making is done by persons who were not elected by the people but, instead, is done by people who are not directly accountable to the voters, either because appointed by the President to head an agency or by career government bureaucrats who work in the agency across different administrations.

This rule making activity is justified as merely filling in the details of general laws passed by Congress. The theory is that, particularly in complicated areas of the law, the regulatory agency will have more expertise than Congress. A good example of particular agency expertise is environmental regulation. For example, Congress passed the Clean Water Act, a law mandating that it is unlawful to discharge any pollutant into a navigable waterway unless one had obtained a permit. Under the Clean Water Act, the Environmental Protection Agency implements pollution control programs, such as setting wastewater standards for industry. The EPA also has set water quality standards for all contaminants in surface waters. [Reading/Assignment: If you go to the link to the Clean Water Act above, you will find a further link to the pdf file containing the Clean Water Act. Briefly look at this act to see how Congress set forth a general scheme and then delegated many tasks to the Administrator of the Environmental Protection Agency. As we will see, the Army Corps of Engineers also has a role to play in the administration of this statute. Further, also follow the link on that page to the EPA's regulations (look to the bottom of the left land column). The link will take you to further pages describing regulations and the regulatory process. Find the link that will take you to the Code of Federal Regulations ("CFR") and look briefly at Title 40 which contains certain environmental regulations. Also note that Title 33 which governs navigation and navigable waterways also is relevant. The point of this exercise is not to learn environmental law. Rather, it is to familiarize the student with the process by which Congress delegates to an agency the task of filing in the details of legislation which the Congress has passed. The student should see how extensive and detailed the federal regulations can be.]

In addition, the agencies have the power to bring enforcement actions against individuals to insure compliance with the laws (including the regulations which the agencies have promulgated). These proceedings look a lot like a lawsuit in a traditional Article III court. To be sure, there typically is an appeal process which ultimately can lead to review by a federal court, but courts often give great deference to the position of the agency which can have the practical effect of making the agency determination the final determination for all practical purposes. What this system of agency administration of the laws has evolved into (or, at the very least, is in the process of evolving into) is a shift in the power structure of government to place large segments of the legislative and judicial functions of government under the control of the executive branch of government. Instead of a separation of powers among three co-equal branches of government, we find a concentration of power under a single branch. This is because the agencies not only administer the laws, but also write "law," albeit through promulgating regulations, and adjudicate violations of the law in tribunals which they administer (with limited review of the result of any determination by that tribunal by the judicial branch of government). Consider the following excerpt from 2016 testimony of Professor Turley before Congress:

The vast majority of "laws" governing the United States are not passed by Congress but are issued as regulations, crafted largely by thousands of unseen bureaucrats. For example, in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations. Agencies now adjudicate most of the legal disputes in the federal system. A citizen is ten times more likely to be tried by an agency than by an actual court. In a given year, federal judges conduct roughly 95,000 adjudicatory proceedings, including trials, while federal agencies complete more than 939,000.

The power and scope of activity by the various federal agencies has resulted in some observers calling the administrative agencies a "fourth" branch of government. See Hinkle article about the fourth branch of government here. I prefer to think of it as a transfer of vast segments of the law making and judicial functions of government to the executive branch.

[Read INTRO TEXT, Chap. 12 Public Law, Administrative Law, pp. 168-173. Also read the 2016 testimony of Professor Turley and the article by Hinkle discussing Prof. Turley's testimony.]

I want you to consider how bland the description of Administrative law appears in the INTRO TEXT selection and then contrast that with the rather more alarmist description in Prof. Turley's testimony and the Hinkle article.

Judicial branch

The structure of the federal courts and the basis for their creation was outlined in Lecture 3. In addition to conducting trials (a later Lecture will address how cases move through the federal courts), the two basic functions of the judicial branch are (i) to interpret the laws passed by Congress and (ii) to decide whether a law passed by Congress or an action taken by the executive branch is constitutional.

[Read INTRO TEXT, Chapter 7, Statutes, Techniques of Interpretation, Weight of Prior Interpretation, Judicial Attitudes Towards Legislation, pp. 83-90.]

To explore in a little more depth how the judicial branch interacts with other departments of government in the review process, we will consider two concrete cases of judicial review by the U.S. Supreme Court: United States Army Corps of Engineers v. Hawkes Co., Inc. ; and, Zivotovsky v. Clinton .

Before you read these two cases, I want to explain a few things about how we will use them and how you should approach reading them.

Hawkes

The Hawkes case is relatively short. It was selected as a recent example of a case which deals with the Clean Water Act, which you briefly considered above. Do not worry that there is much technical detail which you will not likely understand at this point. The case presents a fairly straightforward case of statutory interpretation. The case does not present a constitutional law issue but is being heard because it requires a ruling on the interpretation of a federal statute. Note that there is a general statute, the Administrative Procedure Act, which sets forth the standards for review of agency action by a federal court. This is an extremely important statute given how agency actions can intrude into our lives, affecting life, liberty and property. Note how this case, at base, simply involves a landowner who wishes to cut peat on its land. This is the kind of case that might confront a lawyer who represents business clients who develop land. Clients of business lawyers often interact with agencies and their regulations, requiring the business lawyer to be familiar with administrative law and its general structure. Though it is uncommon for any business lawyer to take a case the Supreme Court (because so few cases are heard on appeal) it nevertheless provides a window into the types of regulatory issues that business lawyers may face. Note in particular how prior case law has set forth a two part test which it appears must be satisfied before an appeal of an agency decision may be heard by a federal court. To truly explore various aspects of the regulatory state, you would need to take a class devoted to administrative law. Some basic introduction is given here because you may well confront cases involving administrative law in other courses.

Zivotovsky

This case is the first of two Supreme Court cases dealing with certain details surrounding the issuance of a passport. It is not the sort of case one would encounter in a typical business oriented private practice. The main opinion in this first Zivotovsky case is also relatively short. It is included as the best recent case which provides a window into the sometimes complex relationships among the legislative, executive and judicial branches of the federal government. We often give lip service to phrases like "separation of powers" but less often have an opportunity to consider how that separation may work in practice. At issue in the first case is whether or not the lower circuit court properly declined to consider the question presented by the parties on the grounds that the question presented was a non-justiciable "political question." In the next Lecture we will consider in some detail aspects of the jurisdiction of the federal courts. Before we do that, however, you are presented with a situation in which the court may decide to dismiss a case which is otherwise properly before it on grounds of policy relating to the proper spheres of operation of the three branches of government. As you will read, the Supreme Court does not agree with the lower circuit court that the case should have been dismissed. However, rather than deciding the question presented, it remands the case to the circuit court for decision. This is, as explained by the Court, the common practice in the U.S. legal system, even though it may appear inefficient. You should know that, following the remand, the circuit court decided the question and, not surprisingly, the decision was appealed to the Supreme Court--who then, and only then, decided the issue presented, in Zivotofsky v. Kerry. You should read the syllabus to that second opinion to see how the court decided the question but you need not read the actual opinions (which are quite long) unless you have the time and inclination. In the second Zivotofsky case we find the Supreme Court considering whether an Act of Congress is constitutional. This, of course, is the second major type of case considered by Supreme Court (as you saw mere interpretation of a federal statute in the Hawkes case). I expect to discuss the Zivotovsky II opinions briefly in class. As recommended but not required reading, you may read two articles in the Harvard Law Review which discuss the two Zivotovsky cases: Discussing Zivotovsky I ; Discussing Zivotovsky II .

Consider the following outline (reproduced below) prepared by the Federal Judicial Center containing a brief summary of points of interaction between the three branches of the federal government and the reasons for judicial independence:

How does Congress interact with the federal courts?

The courts review and interpret laws passed by Congress. If the courts strike down a federal law as unconstitutional, or interpret it in a way different from what Congress intended, Congress may come up with a different version of the law.

• Congress creates federal judgeships and courts. As of 2007, Congress had authorized 179 court of appeals judgeships and 678 district court judgeships and had authorized 352 bankruptcy judgeships and 551 full-time and part-time magistrate judgeships. Congress also controls the types of cases that the federal courts may hear.

• Through the confirmation process, the Senate decides which of the President's judicial nominees will become federal judges.

• Congress can impeach federal judges and remove them from office.

• Congress sets the budget for the courts. Every year, representatives of the courts testify to Congress about how much money is needed for different kinds of court operations, salaries, and other expenses, and Congress decides how much to allocate for the next fiscal year.

How does the Executive Branch interact with the federal courts?

The President appoints most federal judges with the "advice and consent" of the Senate.

Executive branch agencies propose legislation that often affects the courts.

The Department of Justice, an executive branch agency, is the most frequent litigator in the federal courts. It prosecutes federal crimes and represents the government in civil cases.

The courts have the power of review over presidential actions when these actions are properly brought before the courts in a lawsuit.

The Chief Justice of the United States presides over impeachment proceedings against the President.

Judges depend on the executive branch to enforce court decisions.

What is judicial independence, and why is it important?

The founders of this country recognized that the judicial branch must remain independent to fulfill its mission effectively and impartially. Article III of the Constitution protects certain types of judges by providing that they serve "during good behavior" and by prohibiting reductions of their salaries. The judges who are protected are sometimes called Article III judges. They are Supreme Court justices and judges of the courts of appeals and district courts and the U.S. Court of International Trade. Other federal judges, including bankruptcy judges and magistrate judges, serve for limited terms and are not considered Article III judges. The constitutional protections for Article III judges mean that, once appointed, these judges keep their jobs as long as they wish, unless Congress decides to remove them through a lengthy process called impeachment and conviction, which may also be used to remove the President and other government officials. Only eight federal judges have been impeached and convicted in the entire history of the country.

These constitutional protections allow judges to make unpopular decisions without fear of losing their jobs or having their pay cut. For example, the Supreme Court's decision in Brown v. Board of Education in 1954 declared racial segregation in the public schools to be unconstitutional. This decision was unpopular with large segments of society at that time. Some members of Congress even wanted to replace the judges who made the decision, but the Constitution wouldn't let them.

[To supplement your understanding of the importance of judicial independence as it relates to economic development: Read KW Dam, The Judiciary and Economic Development (2006), particularly pp. 15-32. To see how many state court systems are not structured to protect judicial independence to the same extent as the structure in the federal courts, READ: Alicia Bannon, Rethinking Judicial Selection in State Courts (Brennan Center June 6, 2016) .]