Global
Student's Introduction to the Law of the
United States.
I am Professor Pedro A Malavet and today I
will be discussing the constitutional
powers of the United States.
The United States Constitution provides
for three
governmental powers in its first three
articles.
Article one, The Legislative Power,
Article two, The Executive Power,
and Article three, The Judicial Power of
the United States.
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In graphic form you see it here, the
Constitution
sets up the basic structure of the
American government.
A Legislature, which passes statutes or
laws, an Executive, a
Chief Executive, the President of the
United States, who heads
the agencies, the cabinet and it is the
agencies that
issue regulations, which are then force of
law to some extent.
And the President himself can issue
Executive Orders.
The Judiciary, of course, in a common law
system like ours, issues decisions which
become case
law.
Article one designates the legislative
power to be
held by a, a Congress and this is,
of course, the seat of the United States
Congress, the United States Capital in
Washington D.C..
Congress has enumerated powers, it is so
said
in the Constitution, and Article One
starts by vesting
that legislative power in the United
States Congress, and
Section Eight articulates the enumerated
powers given to it.
This was a compromise at the
Constitutional Convention, and the
basic principle is that anything that
might be disruptive of the
harmony of the United States as a single
nation have
to be reserved for the legislative power
of our national Government.
And the enumerated powers are these.
The power to issue money, to establish a
postal system, to
create the federal courts, to raise an
army and a navy, to
provide for the national defense, to
declare war, to collect taxes
and spend money for the general welfare,
and to regulate interstate commerce.
These are the most important ones.
The legislature itself is a bi-cameral
legislature.
It is composed by House
of Representatives which includes
proportional representation,
meaning that it is based on the population
of each state.
Their representatives or members of
Congress are re-elected
very two years, which means that they have
very,
to be very close to their districts, and
to the meh, to the people whom they
represent.
The Senate has equal representation from
each state.
Two senators from each state and they
serve six year terms.
Both houses have to agree on any piece of
legislation before it may become law.
The power to raise funds.
Congress literally has the American
national power of the purse.
It includes the federal power to tax and
spend.
And, this was overwhelmingly supported by
our founding fathers.
It was considered absolutely essential to
having a national government.
That, that national government should be
able to raise money.
Revenue bills, however, must originate in
the house.
And this is to ensure a concept that many
people have heard before.
No taxation without representation because
that was, after all, one of the
fundamental complaints of the colonies at
the time of the Revolutionary War.
This also limits the other two branches of
government.
The fact that the legislative branch
is required to authorize budgets, to
authorize
spending, is a limitation on what the
executive and the judiciary can do.
The congress also has the power of
impeachment, meaning that they may
remove any officer of the executive or
judicial branch by a vote.
This is another kind of check that allows
the legislative to limit
what it might consider overreaching, an
excess in power by the other branches.
And it specifically applies to federal
judges
and to the President of the United States.
the House and Senate today are composed of
100 Senators,
435 members of the House of
Representatives, one per district.
There is a minimum of one Representative
per State, given
that there are States that have less than
640,000 residents.
Which is the average number of people
represented by a single representative.
There are also six territorial
representatives, who
represent the territorial possessions of
the United States.
In addition to the 50 states, the
United States has legal authority, under
the Constitution,
over six territorial possessions and those
territorial possessions
are given one non-voting representative in
the House.
Congressional committees the work of
legislating in this
country has become so complex that the
Congress requires committees
to perform the studies, to perform the
drafting work
that will eventually be presented to the
entire house.
There are 298 total committees, they're
divided between
so called standing committees; which are
basically permanent.
Special or select committees and
subcommittees, they're also, importantly,
investigative committees.
The investigative authority of the
legislature is an important power, and
of course, investigations are generally
used to determine the need for
legislation And they were not conceived
in the Constitution, they're not mentioned
in
the Constitution, but it was thought that
it was absolutely necessary for the
Congress
to have investigative authority in order
to
exercise its legislative power.
The Supreme Court approved of this and
has,
in fact, upheld the Congress' right to
investigate.
The Congress' power to investigate
includes subpoena power, which
is generally given to the judiciary in the
United States.
Subpoena power allows them to call people
to come testify before the
Congress and subpoenas also allow the
Congress to obtain information, documents,
tangible things.
And the subpoena power of the legislature
is enforceable through contempt.
Contempt is a typical authority that is
exercised by courts to punish people who
disobey
a judicial order, and Congress has been
given that authority attached to its
investigative power.
And attached to its subpoena power.
Congressional staff.
Congressmen and women do not work alone.
They have a fairly large staff.
It is headed by the General Accounting
Office
which provides them with assistance in
their oversight role.
Meaning that the legislative has the
authority to exercise oversight
over how the money that they authorize is
actually spent.
For example, there are committees that
have almost 3,000
Congressional staff members who just work
on committees and
also the investigative committees, in
particular, will hire investigative
aides, attorneys and other types of
investigators in particular.
And there are the staff members who work
for each Congressman or woman at
over 11,000 of them averaging 38 per
Congressman
and and Senator and 18 for each house
member.
The executive power of the United States
is exercised by the President of United
States.
And the President's resident and office
is, of course,
the White House, at 1600 Pennsylvania
Avenue, in Washington DC.
Article Two of the Constitution of the
United States vests the executive power
of the United States, in the President of
the United States of America.
President has the duty, the obligation, to
take care that the laws are faithfully
executed.
Including, of course, the Constitution
itself and
the laws passed by the United States
Congress.
The President also is allowed to
appoint executive officials and other
officials, including
importantly, Article three judges, with
the advice and the consent of the Senate.
Executive departments are created by
stature.
They were not originally provided for, but
they have been created by statute as the
nation's legal business and executive
business have increased,
and have required more workers to perform
it.
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An important Presidential power is the
power of the veto.
The President has the power to strike down
any piece of legislation before it becomes
law.
It is important to understand that the
President has to reject the entire law.
The President is not allowed to pick and
chose a part
of a legislation that he does not like,
say the budget.
He doesn't want money spent for a
particular purpose.
He can not reject just that expenditure,
he must reject the entire budget.
A veto may be reversed by Congress by a
two
thirds vote of the house in which the bill
originated.
Article one provides that, interesting,
because the veto override was
not included together with the allowance
of that authority in article two.
It is actually included within the powers
of the legislature.
This is the relationship between the
Congress and the President, that
one of those checks and balances that we
will discuss later on.
Major Presidential powers include the
power over foreign affairs.
In this area, the President is given a
great
deal, not only of authority, but also of
discretion.
How to deal with international problems
and with
governments, governments other than that
of the United States.
In the Constitution, this is articulated
as the power to receive Ambassadors
and other public Ministers, and basically
to choose which governments the United
States chooses to recognize, and with whom
we choose to do business
with, whom we choose to have a
relationship outside of the United States.
Another critical power of the President
is,
of course, his power as Commander in
Chief.
The President is the literal head of the
armed forces of the United States,
meaning that he is a civilian who has
absolute authority over our military.
The President implements legislative
programs.
This is mandated by the Constitution, as I
told you earlier, that
he has a duty to take care that the laws
are faithfully executed.
The President, therefore, is required to
actually implement, to carry
out the legislation that is passed by the
United States Congress.
However, he has an inherent authority, an
inherent
discretion, meaning he has to implement
the law.
He doesn't have to do it, to do it
particularly
enthusiastically or aggressively if he
does not believe in it.
The President has a Cabinet and this is
President Obama's Cabinet.
And, in the picture below you see the
President leading a Cabinet meeting at the
White House.
The Cabinet is composed by the heads of
all
Executive Departments of the dependent
agencies of the United States.
They are not ministers, as is commonly
used to commonly used term around the
world.
They are called the executive officials.
They are called department heads and
generally called Secretaries.
They are not called ministers.
These Secretaries are appointed by the
President of the United States.
But, he is required to obtain the advice
and consent of the Senate,
in order to have them accept that, be able
to take on their job.
The development of federal agencies to
assist the President in carrying out
executive power is, as I mentioned
earlier, not expressly included in the
Constitution.
But it is, today, an absolutely essential
assistance for the
President in carrying out the executive
power of the United States.
The very first executive agency was the
Interstate
Commerce Commission which was created by
congressional enactment,
and in fact, there is a great deal
of cooperation between the President and
the Congress.
because the congress has to often
issue enabling legislation to create a
department.
Such as the department of the Interstate
Commerce Commission.
And the Department of Commerce and to, and
also the legislature
has to give those departments money to
carry out their work.
The development of federal agencies has
been a somewhat slow
process and eh, deh, most of its
development is really
during the 20th century and particularly,
beginning in the 1930s with the new deal.
The great depression of the 1930s put the
United States
in a deep economic crisis and President
Franklin D Roosevelt
asked for legislation to create a variety
of administrative agencies to
help the nation's citizens come of this
economic crises.
And this represented a major growth in the
executive power of the Unites States.
In addition, even more recently, we have
what we would describe as a modern
regulatory
state, meaning that agencies are
regulating different areas of
activity, usually carrying out
congressionally delegated powers.
And, at the state level, there has been a
similar growth in
executive authority being exercised
through agency
authority, which is then exercised through
regulations.
Agency rule making, regulation are legal
rules, which are issued
by the agencies and which are enforced by
these administrative agencies.
They're generally based upon delegated
powers, given to them
by congress, given to them expressly,
generally by legislation.
So, the legislation cannot possibly be
specific enough, so the experts within
each agency issue specific regulations
based
upon their expertise in a particular
field.
That is the way executive authority is
exercised, but keeping in mind that it is
delegated to them by not only the
Constitution, but then, expressly, by
legislation from Congress.
There are two types of agencies, the
executive agencies,
which are directly controlled by the
President and independent agencies.
The executive agencies are those that are
headed by the secretaries, who
are members of the cabinet, and
they are completely subject to
Presidential authority.
The secretary serves at the discretion of
the President.
The independent agencies, however, are not
formally subject to the supervision of, of
a cabinet member, meaning that they
are not subject to absolute Presidential
authority.
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The Independent agencies, instead of being
headed by a secretary,
by a cabinet officer, are headed by a
collegial body.
By some kind of directorship structure.
The President generally appoints the
members
of these collegial bodies, but they are,
of course, subject to advice and consent
of the Senate before their appointment.
And then, importantly, they're appointed
to a
term of years and that is done purposely
to keep them independent from the
political
power of both the President and the
legislative.
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Examples of independent agencies are the
Securities
and Exchange Commission, which regulates
financial securities.
Federal Communications Commission, which
licenses television and radio stations in
the United States, the Federal Reserve
Board which controls our
monetary policies, something that has
lately been quite important and
the Federal Trade Commission, which
regulates certain trade practices in
commerce.
So far, I have been discussing the
two political powers of the United States
government.
Meaning, the elected officials who operate
in the United
States government, the legislative branch
and the executive branch.
Now we get to the unelected branch of the
government, the judiciary,
and the highest court in the United States
is, of course, the Supreme
Court of the United States, which is
housed in the Supreme Court
building across the street from the
Congress in the nation's capitol,
Washington, DC.
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Article three of the Constitution of the
United States states
that the judicial power of the United
States shall be
vested in one Supreme Court, and in such
inferior courts
as Congress may, from time, to time ordain
and establish.
This is a compromise, because the
existence of federal
courts was a matter of dispute at the
Constitutional Convention.
And in particular, whether or not there
should be lower federal courts.
They all agreed that there ought to be
a supreme court, as we see in the
Constitution.
But there was disagreement.
The federalists wanted lower federal
courts to
carry out the nation's legal business, but
the
anti-federalists were concerned that such
courts would unduly
interfere with the authority of the
several states.
So, therefore, they left it to the United
States Congress to create
the lower Federal Courts and this has to
be done by statute.
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The jurisdiction of the Federal Courts of
the United States is limited.
By comparison, state courts are courts of
general jurisdiction.
But the federal courts are courts of
limited jurisdiction.
They are limited to the authority given to
them expressly in Article three of The
Constitution.
And that primarily means that they are
limited to controversies between citizens
of different states or what the
Constitution labels aliens, people from
outside
of the United States, people who are not
citizens of the United
States, and to cases arising under the
Federal laws and the Constitution itself.
Congress has to enable this authority.
In other words, article three designates
the judicial
power of the United States in its maximum
authority.
But that authority requires enabling
legislation from the United States
Congress.
And, for the most part, congress has not
fully enabled the authority of the
Federal Courts to take on cases to the
full extent permitted by the Constitution.
The statutes that provide for the exercise
of jurisdiction in the Federal, in
the lower Federal Courts primarily deal
with
so-called diversity jurisdiction meaning
the controversies between
citizens of different States and that
includes also alien jurisdiction, that
jurisdiction based
upon a suit involving a United States
citizen and a citizen of another country.
And then what we label federal question
jurisdiction, which are questions
arising under the Constitution, or the
laws of the United States.
It's interesting to note that diversity
jurisdiction
was enabled by the Congress in 1789.
Very early in the history of the republic,
but federal question jurisdiction was
not given to the lower federal courts
until 1875, in the post Civil War period.
And, I will explore this in another part
of the course in
a series on the judiciary and the judicial
structure of the United States.
Article three, Judges.
The members of the federal judiciary, who
belong
to so-called Article three courts, are
called Article
three judges, because Article three,
Section 1 of
the Constitution itself designates them as
Federal officials.
And it states that Federal judges shall
hold their offices during good behavior.
Meaning that they're subject only to
impeachment.
That is why we generally refer to a
Federal judge as a lifetime appointee.
They can only leave office upon retirement
or death, or upon impeachment and that's
the only involuntary way for a federal
judge to leave his or her position.
In addition, the Constitution protects
judges by stating that their
compensation shall not be diminished
during their continuance in office.
This is an example of checks and balances.
Remember that Congress has the authority
to spend money.
So, therefore, if they don't like a judge,
they could
conceivably say, we're not going to pay
you a salary.
Well, the Constitution protects a, an
appointed judge from that, with this
provision.
The appointment of judges themselves is
another compromise from the convention.
And it states that the President has the
power to nominate a federal judge, an
Article
Three judge, but that the advice and
consent
of the senate is required for their
appointment.
And this is called the confirmation
process
and it applies to all federal judges,
including the justice of, the justices of
the Supreme Court of the United States.
The basic US judicial structure, as
designated in the uscourts.gov
website, which is the United States
article three court's website.
You see the Supreme Court.
Now there are, as provided by statute,
appellate courts,
which are the circuit courts and, of the
United
States, and there are trial level courts,
the United
States district courts, within each one of
the states.
There are also certain specialized
tribunals, the bankruptcy courts,
the court of international trade, the
court of federal claims.
And then, there are other kinds of
courts, which are not considered Article
Three courts,
the military courts, the courts of
veterans'
appeals, the tax courts, and
administrative agency boards.
Those are not within the Article Three
judicial power unlike the first three
categories.
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This, of course, is a map of the United
States,
but it is a judicial map of the United
States.
And here you see the geographic coverage
of each one of the circuits.
The numbers within the circles are the
circuits of the United States.
The first circuit.
We happen to be in the eleventh circuit,
down here in Florida.
There are also district courts in the
territories.
You see the territorial possessions of the
United States here.
Down here, you see where I was born,
Puerto Rico, which has a district court.
Next to it, the United States Virgin
Islands, another one of the territorial
possessions.
Over here you have the Marianas.
And that here you have Guam.
And these are four of the territorial
possessions of the United States.
And because they have an Article three
court, they
are included within this map of the United
States courts.
To conclude this overview of the first
three articles of the Constitution.
The Constitution creates the basic
structure of the American government.
That is what those three articles, about
which I have been speaking, do.
But they purposely created possible areas
of questions and areas of possible
conflict.
It was, after all, a new nation that they
were bringing forth in 1789.
And it's, therefore, they were not
prepared to
answer all of the questions that might
come up.
And therefore, it would initially be up to
the courts primarily to resolve many
of these open questions, to the extent
that the political process could not
resolve.
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