National Paralegal College

Checks and Balances and the Three Branches of Government

by Susan Israel

After the United States achieved its independence from Great Britain, the country was governed by the Continental Congress, which had been formed in1774, even before independence was declared. In 1781, the Continental Congress adopted the Articles of Confederation, which was the first constitution of the United States and lasted until 1787.

The Articles of Confederation provided for a government consisting of a collection of independent and sovereign states loosely connected to a weak national government. The states were divided by regional, parochial and local interests, but they did not want to cede their powers to a strong national government, fearing the tyranny they experienced under Great Britain’s rule. For example, each state was free to control taxation over imports and exports, undermining the national government’s power to make foreign treaties. The national government could not levy taxes and relied on the states to raise revenues, but the states did not always pay up. The national government had the power to declare war, but not to raise an army, while several of the states had their own navies.

The result was that the states were too powerful and independent, while the national government was too weak and dependent, and by 1786, the new nation was in danger of financial and political collapse. In an effort to avoid the utter failure of the fledgling nation, the states agreed to meet again to revise the Articles of Confederation. Each of the states (except Rhode Island) sent delegates to Philadelphia, where the Second Continental Congress was convened in 1787. The delegates debated all summer in an effort to hammer out a government that would be acceptable to the states but that would also assign to the national government sufficient powers to be sustainable.

From James Madison’s copious notes of the proceedings, as well as from the notes and correspondence of other delegates, we know that the delegates rather quickly accepted the idea of separation of powers of the national government. As Madison wrote, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, may justly be pronounced the very definition of tyranny.” The Federalist, No. 47.

We also know that there was much debate about what powers were to be assigned to the national government and what powers were to be reserved to the states, as well as how to fairly distribute the representation of the states. If representation was to be determined by population, the smaller states worried that the larger states would always outvote them. The larger states worried that equal representation would be unfair to their citizens. The designation of the bicameral Congress – with a Congress and House of Representatives – was the result of a “Great Compromise” that provided for a Senate with equal representation from each state, and a House of Representatives, where delegates were chosen based on a state’s population.

The delegates adopted the Constitution on September 17, 1787. It took three years for all thirteen states to ratify the Constitution.

The concept of Federalism is defined by the interaction between a strong, central Federal government and largely independent state governments, and the specifically and implicitly enumerated powers granted the Federal government by the Constitution.

The Constitution established three separate branches of federal government – the legislative, the executive, and the judicial – and each branch wields and asserts only those powers specifically or implicitly provided to it in the Constitution.

A state’s power is limited only insofar as no state may pass any law that violates the Constitution. For example, a state has the right to pass a law setting the maximum speed limit at 55 miles per hour, as this does not violate any Constitutional provisions. The state does not need to be empowered by the Constitution to pass such a law – its powers are inherent.

The Federal government, however, is limited to passing laws in only those areas in which the Constitution bestows it power. So while the Federal government can withhold national highway funds from states that do not comply with its desire for a 55 m.p.h. speed limit, the Federal government itself cannot pass such a law absent Constitutional authority.

EXAMPLE: Southernstate wishes to pass a law requiring that all whiskey labeled as “Made in Southernstate” pass certain purity standards. The state requires no federal constitutional authority to pass such a law, provided the legislation does not otherwise violate the federal law or the federal constitution (for example by prohibiting minority-owned business from labeling their product “Made in Southernstate.”).

Following the 1819 Supreme Court decision of McCulloch v. Maryland, 17 U.S. 316 (1819), the scope of the Congressional power granted by Article I of the U.S. Constitution increased significantly. This is because the Court in McCulloch found that not every power meant to be granted Congress could have been spelled out in the Constitution. The difference between the Constitution and a complete legal code is that the Constitution does not require that every power be explicitly stated or minutiae fully described. Rather, the powers specifically enumerated in the Constitution entail some further implied powers. For example, the U.S. Supreme Court has read the "Necessary and Proper Clause" to grant precisely these implied powers to Congress.

In McCulloch, the problem centered around the federal government’s authority to create and operate a national bank, which at that time violated Maryland law. Maryland law required that any bank issuing notes do so only under authority of the state and only on paper issued by the state. The state charged a fee for the paper, and the statute provided for penalties for violations. The Constitution did not specifically grant Congress the power to create such a bank, nor does the Constitution specifically give Congress the right to ignore Maryland law in this regard. But the Court held that Congress’ power to create and operate a national bank was implicit, i.e., because Congress did have the power to handle national finances, a federal bank was therefore a "useful, convenient and essential instrument" (it was necessary and proper) for fulfilling this Constitutional obligation.

But the Necessary and Proper Clause is not just some legal technicality belonging to the past. As recently as April of 2003, in Jinks v. Richland County, South Carolina, 123 S. Ct 1667 (2003), the Court reaffirmed Congressional power to pass an act based on the Necessary and Proper Clause. Applying McCulloch v. Maryland, the court reiterated that the Necessary and Proper Clause does not demand that an Act of Congress be “absolutely necessary” to the exercise of an enumerated power. Jinks at 1671, citing McCulloch at 414. See also Stewart v. Kahn, 78 U.S. 493 (1871).

So from McCulloch in 1819 to Jinks almost 200 years later, the Court has held its ground that the threshold test for the Necessary and Proper Clause is below absolute necessity. So long as the Congressionally chosen means is rationally related to a Constitutionally permitted end, the Necessary and Proper Clause may be properly invoked as the source of Congressional power.

EXAMPLE: The Constitution requires Congress to apportion to the states representation in the House “according to their numbers.” In 1941 a Federal statute was enacted which, when applied in 1990, caused Montana to lose one of the two seats it held in the House of Representatives. Montana sued and the case ended up in the Supreme Court. The Court held that Congressional selection and application of the method by which to apportion Representatives is valid under the Necessary and Proper Cause. While the method and formulas were not themselves necessary – Congress could have chosen others – it was necessary to choose some specific manner of calculation, and Congress did not enter into the task lightly or hastily. See Department of Commerce v. Montana, 503. U.S. 442 (1992).

EXAMPLE: Congress is given the power under the Constitution to establish federal courts. Necessarily, some court rules must be established in order to ensure the smooth operation of these courts. Although there is no specific Constitutional provision to that effect, Congress has the power to approve the rules that are promulgated by the Supreme Court and known as the Federal Rules of Civil Procedure (a set of guidelines for how federal civil litigation operates), pursuant to the Necessary and Proper Clause.

What does all this mean? It means that while Congress has only the powers specifically enumerated in the Constitution, Congress may also have other, non-enumerated powers, which are implicitly required to carry out the enumerated powers. It also means that for a case involving the Necessary and Proper Clause, which makes it all the way to the Supreme Court, the outcome is not a foregone conclusion.

The Supreme Court has recognized the fluid nature of Congressional power pursuant to the Necessary and Proper Clause. Instructive here is an excerpt from New York v. United States, 505 U.S. 144, 157 (1992):

"This [Constitutional] framework has been sufficiently flexible over the past two centuries to allow for enormous changes in the nature of government. The Federal Government undertakes activities today that would have been unimaginable to the Framers in two senses; first, because the Framers would not have conceived that any government would conduct such activities; and second, because the Framers would not have believed that the Federal Government, rather than the States, would assume such responsibilities. Yet the powers conferred upon the Federal Government by the Constitution were phrased in language broad enough to allow for the expansion of the Federal Government's role."

In other words, while the Constitutionally enumerated powers granted the Federal government are static, absent a Constitutional amendment, the meaning and scope of those powers must remain sufficiently flexible to allow for enormous changes in the nature of government.

So, the interaction between state and Federal government in our Federal system is a fluid concept, which operates differently as it is applied in different times and different contexts, and over time, Congress’ power has steadily increased in range pursuant to Supreme Court decisions.

Congressional Powers

Article I of the Constitution creates the Congress and grants its powers, and Section 8 provides a laundry list of these powers.

Some of the more important powers specifically granted to Congress include the power to borrow money; to regulate commerce (Commerce Clause); to coin money; to establish Federal courts below the Supreme Court; to establish an Army and a Navy; to tax and spend (General Welfare Clause); to declare war; to “make all Laws which shall be necessary and proper” (Necessary and Proper Clause). Except for the powers expressly granted in Article I, or a Constitutional amendment, or those therein implied, Congress cannot make any act.

The Tenth Amendment to the Constitution, passed in 1791, was intended to limit the powers granted Congress in Article I and protect the states. It reads:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

(By comparison, some of the powers reserved to the states are in the areas of providing for the health and welfare of citizens; providing police and fire protection; providing for education; regulating domestic relations (e.g., marriage, divorce, adoption); licensing most professions (e.g., doctors, engineers, teachers, lawyers); and regulating intrastate commerce.)

The Tenth Amendment means that Congress cannot force a state to pass any regulations or legislation. In other words, we saw previously that Congress cannot pass a 55 mile per hour speed limit. The Tenth Amendment means Congress also cannot directly compel a state to pass such a limit. Thus, the Tenth Amendment was intended to prevent a strong Federal government from overreaching into areas thought to be the sole domain of each state. This protection from Congressional meddling, however, is not as powerful as it might first appear.

The General Welfare Clause is quite broad, and permits Congress to create any tax and spend monies on any program that it believes will serve the general welfare of the citizens of the various states. There is one crucial limitation: while Congress may tax and spend for the general welfare, Congress may not merely pass laws aimed to serve the general welfare.

EXAMPLE: After years of study, Congress finally concludes that cigarette smoke really does harm smokers and those around them. In an effort to serve the general welfare, Congress passes a law banning the manufacture, sale, possession or use of cigarettes in any state. The law would exceed Congressional authority under the General Welfare Clause and would be struck down as an unconstitutional exercise of power. (Note that while Congress may not be able to pass this law under the General Welfare Clause, it might pass this same law under a different power, e.g., see Commerce Clause.)

Congressional power to legislate pursuant to the General Welfare Clause, however, may lead to troublesome results because it may provide Congress the ability to circumvent limitations on its authority, e.g., by using its spending power to achieve its goals.

EXAMPLE: Not easily discouraged, Congress decides to impose a $10 per pack tax on cigarettes and to spend the proceeds on tobacco education and cancer research. The laws imposing the tax and establishing the educational and research programs would be valid under the General Welfare Clause.

It might not be immediately obvious that the power to tax and spend for the general welfare could actually be used in the way indicated by the hypothetical above. But in 1987, the Supreme Court handed down its decision in South Dakota v. Dole, 483 U.S. 203 (1987) which addressed 23 U.S.C. § 158, a law mandating that the Secretary of Transportation withhold federal highway funds from states that set their drinking age at less than 21 years old. The Court held that:

"Incident [to the power of the General Welfare Clause], Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power 'to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.'" South Dakota, at 206, quoting Fullilove v. Klutznick, 448 U.S. 448, 474 (1980).

In other words, Congress can attach "strings" to money given to states in order to encourage states to comply with Congress' wishes.

Almost two decades after Dole, the Court reiterated its position in another much-followed case concerning four performance artists who were denied funding by the National Endowment for the Arts ("NEA") and were upset concerning certain grant-making procedures detailed in 20 U.S.C.S. § 954 (d)(1), the National Foundation on the Arts and Humanities Act.

The artists argued that language in the Act violated their First Amendment rights by requiring that "general standards of decency and respect" be taken into consideration when making awards. The Court observed that the NEA’s resources were limited, that it denied most of the grant applications it received, and that the basic assumption was that the NEA would grant awards according to some measure of artistic worth, making absolute neutrality inconceivable. National Endowment for the Arts v. Finley, 524 U.S. 569, 585 (1998), citing Advocates for the Arts v. Thomson, 532 F.2d 792 (1976). Ultimately, the Court concluded that the language regarding “decency and respect” was not an overreaching of Congressional authority, but merely a condition imposed on the distribution of funds.

So while Article I, in granting Congress its powers, may limit it to merely taxing and spending for the general welfare, and the Tenth Amendment may appear to further limit Congressional power, Dole, Finley and a string of other cases make clear that within the workings of our Federalist system it nonetheless holds true that "he who pays the piper calls the tune."

EXAMPLE: There are many states in the U.S. that do not require motorcycle riders to wear helmets. Congress could decide to exert its influence to help states without such laws "see the light" by attaching strings to federal monies. For example, Congress could require states to have a helmet law in order to qualify for federal funding which helps state universities.

The Commerce Clause states that Congress has the power to regulate commerce with foreign nations and among the states. This was originally interpreted to mean that Congress could only regulate interstate commerce, that between more than one state, and not intrastate commerce, that arising within a state. Shipping goods down the Mississippi River and via the Transcontinental Railroad are unquestioned examples of interstate commerce. However, Congress can also regulate intrastate commerce that affects interstate commerce.

EXAMPLE: In 1922, the Court ruled that the stockyards in Chicago could be federally regulated because interstate commerce flowed from the local activities there; i.e., they were part of “the stream or current of commerce”.

Although the Court narrowed its view during the 1930s and rejected most of Congress’ New Deal legislation as violative of the Commerce Clause, it did a turn-around in 1937 when it found that a single business can have an economic impact on the nation, even if the business is entirely intrastate, and therefore falls under federal jurisdiction for the Commerce Clause. Since then, the Court has almost invariable rejected challenges to Congressional legislation in this area, which has greatly expanded Congress’ power. Today, as long as Congress can show a connection to interstate commerce, no matter how tenuous, it is free to legislate in areas that were intended to be the sole domain of the states, including health, welfare and security. Congress must show that the statute bears a “rational relationship” to its objective. This has led to the enactment of laws regulating occupational safety, child labor, the environment, and criminal matters, to name a few. Even Roosevelt’s Social Security program was passed under this test.

Both the Due Process Clause and the Equal Protection Clause are contained in the 1868 Fourteenth Amendment, which affects a larger part of the Constitution than most amendments. For our purposes here, it is important to note that Section 5 of the Fourteenth Amendment grants Congress the “power to enforce” the provisions of that Amendment, which may include providing additional remedies to those recognized by courts, but does not permit Congress to expand any rights or create any new rights.As a final step in understanding the workings of the Congress within the Federalist system, note that Congress may delegate to the other branches of the Federal government any legislative powers granted to it by the Constitution. However, in so doing, Congress is required to provide some intelligible principles to guide the delegee’s use of discretion. In over half a century, no act of Congressional delegation has been struck down as unconstitutional.

EXAMPLE: Congress, tired of dealing with the headaches of the federal court system, delegates to the President “the power to establish and change rules of procedure for the federal courts, such rules to be subject to the historic principles which have guided our nation’s courts since their inception.” While the guidance provided is minimal, it does provide an intelligible principle; therefore, it is unlikely that a court would strike it down on non-delegation grounds.

Presidential Powers

Article II of the Constitution vests the powers of the executive branch in the President of the United States and details the powers of that office. In short, the executive branch is responsible for carrying into effect the laws as passed by the legislative branch and making sure that the laws are observed. The responsibilities are best split into two separate areas – Domestic Affairs and Foreign Policy.



The Appointments Clause, Article II, Section 2, gives the President, not Congress, the power to appoint federal judges, ambassadors, and other "principal officers" of the United States, subject to Senate confirmation of such appointments. "Principal officers" here includes ambassadors and members of the Cabinet. Although the Senate may opt not to confirm a Presidential appointment, Congress cannot limit or eliminate the President’s powers to make the appointments.

EXAMPLE: A member of the Supreme Court decides to step down to spend more time with her family in her old age. The empty slot is filled by the President, who appoints a new Justice. The appointment, however, is subject to Senate approval.

The power to appoint "inferior officers" mentioned in Article II vests in the President only by Congressional approval. While Congress cannot itself exercise the power to make such appointments, Congress may vest this power in the judiciary or in Cabinet officials. In Morrison v. Olson, 487 U.S. 654 (1988), the Supreme Court clarified the line between principal officers and inferior officers, leaving essentially only Cabinet members, federal judges, and ambassadors in the higher category. One important example of an “inferior officer” position is that of Independent Counsel (a special prosecutor), which means that Congress may vest the power to appoint Independent Counsel in the judiciary, ensuring impartiality when issues arise concerning the executive branch. Other examples of "inferior officers" include district court clerks and federal election supervisors.

EXAMPLE: Imagine that the President is accused of some wrongdoing. Congress may exercise its power to appoint a special prosecutor in the federal courts, and the court may then appoint a special prosecutor to investigate the charges made against the President. Independence from the executive branch is crucial here to avoid any appearance of impropriety.

Along with the power to appoint comes the power to remove. Except where statutorily limited, the President may remove any executive branch officer. Congress cannot prevent removal entirely, but may limit removal by requiring a showing of good cause, provided the office from which the person is being fired is one where some measure of independence from the President is desirable. For example, the power of the President to remove members of the Cabinet cannot be limited by Congress, because independence from the President is not desirable for those posts.

Morrison had an effect here too, and as a result, even the power to remove purely executive officers may be limited by Congress so long as the restrictions imposed do not interfere with the Presidential performance of his Constitutional duties.

So if Congress may limit the President’s power to remove executive branch officers, may Congress itself remove people from these posts? Bowsher v. Synar, 478 U.S. 714 (1986) made clear that Congress may not do so.

In an attempt to reduce federal budget deficits, Congress gave the Comptroller General certain executive powers. Previous legislation already afforded Congress the power to remove the Comptroller for various reasons, but because Congress now bestowed on that position certain executive powers, the Court in Bowsher struck down the relevant provision of the act. So, Bowsher tells us that Congress may not retain the right to remove for any cause any executive officer. This power remains with the executive branch and the President.

EXAMPLE: Congress decides that its power to declare war would be compromised if our Secretary of Defense does not meet certain standards of performance. Congress therefore passes a statute requiring the Secretary of Defense to appear before Congress each year and explain what he has done to improve our nation’s readiness for time of war. The statute provides that should the Secretary fail to make satisfactory improvements in any year, Congress may vote to remove the Secretary. Because the Secretary of Defense is a Cabinet posting under the President as Commander-in-Chief of the armed forces, the statute would be an unconstitutional exercise of power.


The President and other executive officers, however, may be removed from office by Congress through the power to impeach. Impeachment itself does not remove one from office. Instead, the House of Representatives votes to impeach. If the vote passes, a trial is held in the Senate, and only if the Senate convicts will the officer be removed from office. The House vote requires a simple majority to pass. The Senate conviction requires a 2/3 majority vote to pass.

While Congress may impeach and thereafter remove a President, the President does enjoy certain immunities from prosecution. Regarding civil suits seeking money damages for any Presidential acts while in office, the President is absolutely immune. In Clinton v. Jones, 117 S. Ct. 1636 (1997), it was made clear that the President enjoys absolutely no immunity for non-Presidential acts. Not only was the President subject to suit from Paula Jones, the Court refused to grant him even temporary immunity which would have allowed the President to put off his defense until his term of office was complete. The rationale behind the immunity – of ensuring that the President need not fear personal liability for acts of office - was entirely inapplicable according to the Court. Acts prior to taking the office of the Presidency are therefore also not included in the President’s shield from suit.

EXAMPLE: Suppose a President, years before taking office, is involved in a real estate deal in his home state. While in the office of the Presidency, facts come to light indicating that he may have committed fraudulent acts as part of the transaction. Although defending himself from the suit will take away from the time he can dedicate to his Office, he is neither immune from suit nor able to postpone adjudication.The President does have an executive privilege covering Presidential papers and discussion, which affords further protection and the ability to refuse disclosure. However, this privilege will on occasion yield to other overriding governmental interests. In U.S. v. Nixon, 418 U.S. 683 (1974), we are provided with the only Supreme Court decision that draws boundaries for this privilege. There, it was found that whether the privilege applies or not is decided by the Court, not the President, and that because of the need to fully develop the facts relevant to a criminal trial, the privilege was outweighed by the need for full factual disclosure in that case and disclosure could not be avoided.

Power to Pardon

Finally, Article II, Section 2, clause 1 grants the President “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This means that the President may pardon someone who is accused or convicted of a federal crime, but the President holds no such power regarding violation of state law or civil, as opposed to criminal, offenses.

EXAMPLE: Frank grew up with the man who is now President of the United States. Although they weren’t close growing up, Frank is sure the President will remember him and help him. After all, Frank helped him out of that sticky situation in high school, without which the President probably never would have been able to get his diploma. The help Frank needs involves a felony conviction for aggravated assault and rape in Kansas for which Frank feels he has served enough time. Somehow he manages to get the President on the phone to personally request a pardon. Needless to say, the President is more than likely to tell Frank that he would help him if he could, but alas, he doesn’t have the power to pardon anyone convicted of a state crime. "Call me when you get out," he says, "we’ll do lunch."

Veto Power

Finally, the President has the power to veto any bill of Congress. If the President fails to sign a bill within ten days of receiving it, it automatically becomes law. However, if he does not sign or veto it while Congress is not in session, then the bill dies by pocket veto. Any bill vetoed by the President may still be passed into law by a two-thirds majority vote of each house of Congress.



In addition to bestowing upon the President certain powers regarding domestic affairs, Article II grants the President broad discretion over foreign policy. The two most important means of establishing foreign policy are treaties and executive agreements, and these operate differently with respect to state and federal laws and the Constitution.

Article II, Section 2, clause 2 grants the President “Power, by and with the Advice and Consent of the Senate, to make Treaties” that must be ratified by a two-thirds majority vote of the Senate.

Executive Agreements are not Constitutionally authorized, but are nonetheless agreed to be within the powers vested in the President. The most immediately apparent difference between a treaty and an Executive Agreement is that Executive Agreements do not require Senate approval, as that requirement stems from the Constitutional grant of power to enter into a Treaty. This is not as dangerous a sidestep around the Constitution as it may first appear. Crucial differences exist between the power and force of a treaty versus that of an Executive Agreement. These differences are examined in the chart at the end of this Section.

What is the advantage in the President seeking Senate approval and entering into a treaty rather than an Executive Agreement? Only a treaty can surmount any existing federal law, and it is precisely that power of the treaty that makes Senate approval necessary.

Note that in no case will state law interfere with the terms of either a treaty or an Executive Agreement. Were it otherwise, the states could effectively invalidate the President’s power to conduct foreign policy, as any agreements with foreign nations with which a state disagreed could be essentially nullified by the individual states.

EXAMPLE: The President enters into a treaty with China, which the Senate ratifies. The treaty provides, in part, that goods exported from China to the U.S. will be taxed at a particularly low import tax rate, in exchange for which goods shipped from the U.S. to China will enter China’s stream of commerce without having any import tax imposed. Suppose it would be possible for a number of states to now pass laws that would impose hefty import taxes on Chinese goods. The United States as a whole would not be living up to its end of the bargain, and the President’s ability to enter into agreements with foreign nations would be seriously compromised.

Commander in Chief

In addition to the power to enter into treaties and Executive Agreements, the President is named "Commander in Chief of the Army and Navy" by Article II. So while only Congress has the authority to formally declare war, controversy abounds regarding the President's ability to commit armed forces abroad in the absence of such a Congressional declaration.

Some areas are clear, such as the authority for the President to commit our forces to defend against a sudden attack. See Prize Cases, 67 U.S. 635 (1863). It is also clear that Congress may delegate its powers to the President in advance, to be exercised at the President’s discretion, so long as the delegation is not overly broad. It is not clear, however, just what are the President’s powers to commit to a preemptive strike prior to an anticipated enemy attack or to commit troops to defend our allies against a sudden attack.

EXAMPLE: President Roosevelt requested, and Congress approved, a Declaration of War in 1941 after the Japanese attack on Pearl Harbor. That was the last official Congressional declaration of war. All of the military operations of the United States armed forces since World War II have not been declared wars. Some of them, such as the Korean War, the Vietnam War, and the current wars in Iraq and Afghanistan, were followed by Congressional “resolutions”; and the Persian Gulf War of 1991 was authorized by a United Nations Resolution.

Judicial Powers

Article III places the judicial power of the United States “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Section 2 extends federal judicial power to “cases and controversies” arising out of several areas. Central to our concern here is that the federal courts are given jurisdiction over Constitutional issues and issues arising from federal law. Other sources of jurisdiction provided the federal courts by Article III, such as diversity jurisdiction, are best addressed elsewhere.

The Constitution expressly created the Supreme Court, and Congress subsequently created the inferior court system by legislation in 1789. First are the District Courts, which are the federal courts of original jurisdiction, often referred to as “trial courts”. There is at least one District Court in each state, and some states have as many as four District Courts, depending on the state’s population and legal activity. There are currently 94 federal districts, including the District of Columbia and Puerto Rico, as well as the territories of Guam, the Virgin Islands and the Northern Mariana Islands.

The intermediate appeals courts in the federal system are called Circuit Courts, or Courts of Appeal, and are distributed in circuits by geographic area around the country. These courts cover appeals from the District Courts of several neighboring states in the circuit. Today there are thirteen circuits. Although there might be several separate District Courts sitting within the geographic boundaries of a state, these are not tied to the state court system.

The court of final appeals, of course, is the United States Supreme Court. The Supreme Court grants the writ of certiorari (meaning that the Court agrees to hear the case) in fewer than 5% of the cases in which it is sought. These cases have come up through the federal court system, starting with the District Courts. The Supreme Court can also issue writs of certiorari to state courts if the case concerns an issue of federal law.

All federal judges are appointed by the president for a life term, but the appointment must be confirmed (or denied) by a simple majority vote of the Senate. Conversely, federal judges can be impeached and removed from office for "treason, bribery and other high crimes and misdemeanors". One of the most important roles of the federal court is to adjudicate the constitutionality of Congressional acts. It was the historic case of Marbury v. Madison, 5 U.S. 137 (1803) that established that the Supreme Court has the power to declare unconstitutional any act of Congress that conflicts with the Constitution. Essentially, the reasoning was that because the Constitution is the highest law of the land, any law conflicting with the Constitution necessarily must be struck down. The real source of controversy was not the Constitution’s supremacy, but the claimed right of the judiciary, rather than the legislature, to determine whether a law was in conflict with the Constitution. However strong the battle once was, it has now been long accepted that the federal courts have the power to strike down acts of Congress that the court finds unconstitutional.

EXAMPLE: Congress, in a remarkable turn of events, decides that the nation’s economic difficulties are largely due to the number of women who are employed at full-time positions, thus not properly raising their children who grow up without any sense of responsibility and eventually become poor employees. Congress therefore passes a statute requiring a freeze on the hiring of all women until such time as Congress otherwise mandates. It is the duty of the federal courts to strike down this act as unconstitutional and refuse to enforce it.

Reviewing the constitutionality of an act of Congress is something a federal court can do as a court of original jurisdiction. But the Supreme Court plays another vital role; solely as an appellate court. The Supreme Court may grant certiorari to hear an appeal from the decision of any state court insofar as the state court applied federal law in arriving at its conclusion. If, however, the decision could be independently and adequately grounded in state law, the Supreme Court has no jurisdiction to hear the case. In other words, if the Supreme Court’s decision regarding the application of federal law by the state court would not change the outcome of the case, there is no reason for the Supreme Court to grant certiorari.

EXAMPLE: Mississippi has a law that prohibits “use of race in employment decisions.” Roger Daltry auditions for a job as a singer at a blues club in Mississippi and believes he wasn’t given the job because he is white. He cites the Mississippi law and federal anti-discrimination statutes in his cause of action. The Mississippi Supreme Court finds in Roger’s favor, citing both Mississippi law and federal law as independently requiring that outcome. Assuming the court misapplied the federal statute, the Supreme Court will still not hear the case, as overturning the court’s decision regarding the federal statute will still leave the Mississippi state law as grounds for the court’s conclusion.

Before any federal court will exercise jurisdiction over any case, the "case" or "controversy" requirement of Article III must be met. Whether there is a real case or controversy over which the court has jurisdiction depends on four factors:

(1) Standing: The Plaintiff must have standing to sue. This means that she must allege and prove either past injury or imminent injury, which has been personally suffered (no suit is available for someone else’s injury, with some limited exceptions), which was caused by Defendant, and which is redressable. If the Plaintiff cannot make out all of these elements, Plaintiff does not have standing and the suit will not be heard. For Example:

Frank is angry about what happened to his friend Joanie last month when Joanie was applying for a job as a truck driver. Upon walking into the office for her interview, Joanie was told “Sorry, we don’t hire no gals to drive dese here trucks. You just can’t handle it.” Frank files a discrimination suit on Joanie’s behalf. Even if Joanie is Frank’s tenant and by virtue of the discrimination she cannot pay her rent, Frank has suffered no harm that can be redressed by the Court and therefore he lacks standing.

(2) Ripeness: The court must have before it everything necessary to make a decision. Otherwise the case is not ripe and will not be heard. For example, one cannot bring a constitutional claim regarding a recently passed law before the law is enforced and some damage is actually suffered (except if one shows extreme hardship in the absence of a pre-enforcement judgment). For Example:

Beth drives a very large S.U.V. While looking for a parking spot in town she notices a sign that says "Compact Vehicles Only, All Others Will Be Towed." She pulls into the spot, which is coincidentally right in front of the courthouse. She enters the courthouse and files a lawsuit against the town for discriminating against larger vehicles. Until and unless she is actually towed, her case is not ripe. After all, if the town ordinance regarding parking is simply never enforced, there will never be any case or controversy requiring adjudication.

(3) Mootness: The case or controversy requirement means the Plaintiff must bring a “live” controversy, not an issue which has already been resolved or invalidated in some other way. For example, if I sue Charlie to get him to pay for the car he bought, and prior to our court date he makes the payment, the case will be dismissed as moot. There are, however, three important exceptions to this rule.

First, class action suits will not be dismissed as moot.

Second, if a Defendant voluntarily ceases the activity which gave rise to the cause of action simply in order to evade adjudication and is likely to recommence the activity if the case is dismissed as moot, the court may still hear the case. So if my neighbor holds raves every night which interfere with my quiet enjoyment of my land, and every time I sue he stops until the case is dismissed and then begins again, a court need not dismiss for mootness.

Third, certain issues capable of repetition evade review because the time-span during which they can be challenged causes the issue to be moot by the time the case comes before the court. Here too a court need not dismiss for mootness. So if a law prohibiting abortions is challenged by someone seeking an abortion, the fact that the case might take over a year to go to trial will not require a court to dismiss it as moot.

For Example:

In January of each year my car gets plowed in by town vehicles clearing the road. This year I filed a claim against the town the day after my car was once again plowed in. In the four months it took to get the case before a judge, the snow all melted and my car was freed. Although the case is moot, this is an issue that would entirely escape judicial review due to the time it takes to get a case to court unless it is heard despite the natural spring thaw.

(4) The Political Question Doctrine: Courts do not have jurisdiction over political questions, and if the only issue raised by a Plaintiff is political, the case will not be heard. Most important for our purposes is to understand that this includes challenges to Presidential decisions on foreign policy.

Judicial Activism

In most cases today there is no great controversy over granting jurisdiction to federal courts. Nevertheless, there remains a great deal of controversy over the role that those courts should play. This controversy often centers around the Supreme Court, simply because a Supreme Court decision has the greatest potential for serious impact on a grand scale. Simplifying the debate into two schools of thought will make our task a bit less onerous here. Bear in mind, however, that many shades of subtlety lie between (and outside) the two opposing positions described below.

The sharp contrast in this debate is between those who call for judicial activism and those who demand judicial restraint.

Judicial activists hold that judges must do more than simply uphold the precedents before them. Rather, judges must consider social policies and changes in arriving at their decisions, even when this would have the effect of contradicting precedent. Before retiring from the Supreme Court in 1990, Justice Brennan, in The Contemporary Constitution, Kettering Review (Fall 1987), 6-11, wrote "the act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community’s interpretation that is sought…. [T]he ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning…but in the adaptability of its great principles to cope with current problems and current needs."

Judicial activists see no harm in applying law in new ways to suit current situations. Indeed, judicial activists see this as an important responsibility bestowed on the courts.

Those who argue for judicial restraint, however, are generally of the belief that laws should be made by the legislature, and that judges are, in effect, creating new laws when they follow the sort of reasoning employed by Justice Brennan. Judicial activism, the argument goes, turns courts into law-makers, something they were never intended to be.

In The Federalist Papers, Alexander Hamilton argued that a strong and independent judiciary is best because the judiciary, of the three branches of the federal government, is the least dangerous to the Constitution since it can only judge and not actively create law. Those advocating judicial restraint would say that when a strong judiciary oversteps its bounds it is a great threat to the Constitution. Of course, those advocating judicial activism would say that no matter how active the courts may be, the legislature may still pass and repeal laws in accordance with the Constitution. Hence, any possible damage caused by over-active judges is inherently limited by Congress’ ability to immediately remedy the situation with a new law.

To see how the debate plays out in an actual case, let’s look at Griswold v. Connecticut, 381 U.S. 479 (1965). Griswold, the Executive Director of the Planned Parenthood League of Connecticut, and Buxton, a physician, “gave information, instructions and medical advice to married persons as to the means of preventing conception” in violation of state law. Griswold and Buxton sued, claiming that the statute violated the Fourth Amendment. The Court found that the Fourth Amendment creates a “zone of privacy created by several fundamental constitutional guarantees.” Of course, the Fourth Amendment contains no such language, but the Court extrapolated the “zone of privacy” pointing to the First, Third, Fifth, and Ninth Amendments. In finding that there was a Constitutional right of privacy, which was violated by the Connecticut law, the Court arguably expanded the rights provided in the Fourth Amendment. The task of courts, according to the theory of judicial restraint, would not have led to this decision. Thus, the decision led to strong criticism of the majority opinion. Judicial activists, however, would argue that no rights were actually expanded, but that the rights already granted in the Constitution were simply being spelled out to apply to a situation that hadn’t come up previously.

The debate over judicial activism raged on through Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood v. Casey, 112 S. Ct. 2791 (1992). But the debate is not limited to Supreme Court decisions regarding contraception or abortion. Whenever a judge is asked to apply law in a way not strictly in accordance with precedent, there is the potential for debate over judicial activism versus judicial restraint.

How far a court may go when interpreting law could not have been precisely spelled out in the Constitution, and the debate is not likely to be settled here. For those interested, articles and longer works by H.L.A. Hart, John Rawls, and Ronald Dworkin, among others, will provide further insight into the issue, as will various articles contained in Understanding Law In A Changing Society, 2d ed., Altschuler & Sgroi, Prentice Hall, N.J. (1996).

What is clear is that the judicial branch of our federal government plays a highly prominent role in the study of Constitutional Law. For better or worse, the Supreme Court occasionally strikes down acts of Congress and state laws on Constitutional grounds, and it is through these decisions that the scope of the Constitution is often understood. Supreme Court decisions define Constitutional rights and give shape to them. The debate over the role of the judiciary, therefore, is something you may want to bear in mind in the context of the separation of powers in our three branches of government.


The framers of the Constitution worked hard to improve the state of the national government from weakness under the Articles of Confederation to strength under the Constitution. Nevertheless, to avoid the tyranny they experienced under British rule, they did not concentrate all power in one body, and instead, distributed federal authority into what we know as the three branches of government, the Executive, Legislative and Judicial. They further provided checks and balances so that power would not be concentrated in one branch. The relationship among the three branches, as well as the relationship between the federal government and the states, has been evolving since the beginning of the Constitution, and will continue to evolve as our nation faces new challenges at home and abroad.

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