Introduction and Separation of Powers

Terms:

Legislative Branch:
Comprised of elected representatives, this is the branch of government that proposes, drafts and, ultimately, creates law that is controlling in the jurisdiction over which the legislature has authority.

Executive Branch:
Headed by either the state Governor or the President of the United States, this is the branch of government that enforces the law created by the appropriate legislature. Administrative agencies, such as the Social Security Administration, the Environmental Protection Agency and the Internal Revenue Service, are part of the executive branch.

Judiciary Branch:
This is the branch of government that interprets the laws created by the appropriate legislature. This branch also decides whether actions taken by the executive branch either exceed its authority or are unconstitutional.

Courts of general jurisdiction:
Courts that have the authority to hear all types of cases.

Courts of limited jurisdiction:
Courts that have the authority to hear only certain types of cases.

The United States government is divided into three separate branches of power. Established by the United States Constitution, these branches are the Legislative Branch, the Executive Branch and the Judicial Branch.

The Legislative Branch is established by Article I of the United States Constitution. This is the branch that creates federal law. See O’Bryan v. Bureau of Prisons, 349 F.3d 399 (7th Cir. 2003).

Two entities make up the legislative branch: the Senate and the House of Representatives.

The House of Representatives consists of Representatives from each state, elected by the people of each state. Each state is allotted a specific number of Representatives based on the population of the state, and each Representative is elected for a two-year term. No one may become a Representative unless he or she is twenty-five years old, has been a citizen of the United States for at least seven years, and lives in the state for which he or she will become a Representative.

There are one hundred Senators in the United States Senate; each state is represented by two Senators. Each Senator is elected to a six-year term, and the year in which each term expires rotates, so that every two years, one-third of the Senate is elected (or re-elected).

Example: Jones, Smith and Peters are elected to the United States Senate in 1998, 2000 and 2002, respectively. Jones’ term will expire in 2004, Smith’s term will expire in 2006, and Peters’ term will expire in 2008.

No one may become a Senator unless he or she is thirty years old, has been a citizen of the United States for at least nine years, and lives in the state for which he or she will become a Senator.

Article II of the United States Constitution establishes the Executive Branch. Headed by the President of the United States, this branch enforces the laws created by the legislature.

To become President of the United States, one must be a natural born citizen of the United States, be at least thirty five years old, and have been a resident of the United States for fourteen years.

The President has the power to appoint the administrators of certain federal agencies. For example, President George W. Bush appointed Christine Todd Whitman to be administrator of the Environmental Protection Agency. Because she later resigned, President Bush had to appoint a replacement. The President also has the power to “appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments . . . shall be established by law . . . .” United States Constitution, Article II, Section 2. Such appointments, however, must be done by and with, the advice and consent of the Senate.

The Judiciary Branch of the federal government is established by Article III of the United States Constitution. A more detailed description and analysis of the organization of the judicial branch is discussed later. The role of the judicial branch is to interpret the laws created by Congress and to apply the laws to the facts of the cases before it.

The federal judiciary is often asked to determine whether laws promulgated by Congress are constitutional and whether action taken by the Executive Branch is constitutional and complies with the federal laws. This “separation of powers” helps ensure that one branch will not become tyrannical and wield ultimate power. The judiciary will also be asked to apply the law to specific facts presented, even if there is no question of constitutionality.

See In re United States, 345 F.3d 450, 453 (7th Cir., 2003) (“The Constitution's ‘take Care’ clause (art. II, § 3) places the power to prosecute in the executive branch, just as Article I places the power to legislate in Congress. A judge could not properly refuse to enforce a statute because he thought the legislators were acting in bad faith or that the statute disserved the public interest . . . .”).

State governments are organized similarly and consist of legislative, executive and judicial bodies.

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