American Government: An Overview

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American Government: An Overview

The Constitution is the framework for the federal government of the United States of America. Written in 1787 and adopted in 1788, it carves the federal government into three branches. Generally, the legislative branch makes America's laws, the executive branch enforces the laws, and the judicial branch decides cases under the laws. The Constitution also gives the three branches duties outside the realm of the nation's laws.

The division of government into branches is what political scientists call the separation of powers. The separation of powers prevents the same person or branch of government from having full power to make, enforce, and interpret the nation's laws. The separation set up by the Constitution, however, is not absolute. Each branch has powers that allow it to affect the affairs of the other branches. These checks and balances prevent the branches of government from being completely separate. Indeed, some observers believe the checks and balances make the federal government one of shared powers, not separate powers.

The legislative branch: Congress

The Constitution contains six parts called articles and, as of 2005, twenty-seven parts called amendments. Amendments are changes made since the original six articles were adopted in 1788. The first three articles cover the three branches of government, and the very first article covers the legislative branch. It begins, "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."

The powers of Congress

The legislative power is the power to make laws, so Congress is the nation's main lawmaker. Article I, Section 8, lists Congress's lawmaking power, including the power to:

collect taxes and other money for paying the nation's debts and providing for its common defense and general welfare
regulate commerce, or business, that crosses the boundaries of states, Indian lands, and foreign nations
establish rules for naturalization, which is the process by which people from other countries can become citizens of the United States
create money and punish counterfeiters (people who make fake money to be used as real money)
raise and support armies and navies and provide rules for regulating them

In the Constitution, this list ends with a general clause that says Congress has the power "to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." In other words, Congress has the general power to make all laws the government needs to exercise its specific powers.

The chambers of Congress

The very same section of the Constitution that makes Congress the lawmaker divides it into two chambers, the Senate and the House of Representatives. The Senate contains two senators from each state of the United States, for a total of one hundred as of 2005. Delegates from small states, such as New Jersey and New Hampshire, insisted on this arrangement when they met to write the Constitution in steamy Philadelphia, Pennsylvania, in the summer of 1787. The delegates from small states feared that the large states would control the federal government without a legislative chamber that gave each state equal representation. Two senators from each state—regardless of geographic size or population—means each state has equal power in the Senate.

As of 2005, the House of Representatives contains 435 members, a total that has not changed since 1912. This number comes from a law passed by Congress, not from the Constitution. The Constitution only says that each state must have at least one member in the House, and may have no more than one member for every thirty thousand people in the state.

Under the Constitution, the total number of members in the House must be divided among the states once every ten years based on the population of each state. Roughly speaking, then, each state has control in the House in proportion to the size of its population. States then divide themselves into districts, with one House member representing each district. Redistricting is the process of dividing the total number of House members for a state among its districts based on the population census taken every ten years. The most recent redistricting happened after publication of the 2000 federal census.

The Senate and the House of Representatives share most of the powers of Congress equally. Both chambers can propose changes to the Constitution, called amendments, although three-fourths of the states must approve an amendment before it becomes law. Action by both chambers is necessary to admit new states to the United States, a topic that occasionally arises concerning the District of Columbia and Puerto Rico, which are not states as of 2005. Congress as a whole shares the power to make rules and regulations for territories of the United States, which are lands that the United States controls without making them states. Examples of territories are Puerto Rico and the U.S. Virgin Islands in the Caribbean Sea, and Guam and the Northern Mariana Islands in the Pacific Ocean.

Each chamber of Congress must pass a bill for the bill to become law. Both chambers can pass bills for raising money, such as through taxes, but such bills must start in the House. If the president vetoes, or rejects, a bill, the bill dies unless two-thirds of the members of each chamber of Congress vote to override the veto. In this case, the bill becomes law despite the president's veto.

Birth of a Government

The U.S. Constitution, written in 1787, created a federal government that has lasted into the twenty-first century. The Constitution was signed by representatives, then called delegates, from twelve of the thirteen states that made up the United States in 1787: Connecticut, Delaware, Georgia, Maryland, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, South Carolina, and Virginia. (Rhode Island sent no delegates to the Constitutional Convention of 1787. Its population of mostly farmers rejected the Convention's goal of creating a strong central government, which would be hard for the people to control from their communities, far away from the capital.)

The Constitution became law in the United States in June 1788 after ten of the thirteen states ratified, or approved, it. The new federal government began to operate under the Constitution in 1789.

The Constitution, however, did not create the United States of America, and was not the blueprint for its first government. The country was born on July 4, 1776, when representatives from the thirteen American colonies joined together to break from English rule by signing the Declaration of Independence.

At the time of independence in 1776, the new American states operated together as a nation in the Continental Congress. In 1781, the states adopted a new form of government with the Articles of Confederation. American government under the Articles of Confederation had only a Congress, with no president or judiciary. The weakness of this government led the men who wanted a powerful federal government to call for writing the U.S. Constitution in 1787.

Only the House can impeach the president, vice president, and other civil officers of the United States, including judges. Impeachment is a formal accusation that someone has committed treason, bribery, or other high crimes or misdemeanors. The Constitution defines treason as levying war against America or giving aid and comfort to its enemies. Bribery is an illegal payment to influence official action. U.S. district judge West H. Humphreys (1806–1882) of Tennessee was impeached in 1862, and removed by the Senate, on charges of joining the Confederacy without resigning his judgeship, but nobody has been impeached specifically for treason. Additionally, nobody has been impeached for bribery, but six of the seventeen impeachments in history to date have involved accusations that an official used his office for improper personal gain. The Constitution does not define "high crimes" or "misdemeanors." The House has interpreted the phrase loosely to mean any conduct that makes a person unfit to continue in office. The two highest-profile impeachments were presidents: Andrew Johnson (1808–1875; served 1865–69) in 1868 and Bill Clinton (1946–; served 1993–2001) in 1998.

Once accused by impeachment in the House, a civil officer stands trial in the Senate. The Senate alone can convict the officer. To convict an impeached officer, two-thirds of the senators at an impeachment trial must vote for conviction. Following their impeachment, neither President Johnson nor President Clinton were voted out of office, though Johnson missed conviction by only a single vote.

In addition to conducting impeachment trials, the Senate has two other powers that the House does not. If the president makes a treaty, or formal agreement, with another country, the treaty becomes law in America only if two-thirds of the senators present approve it. Similarly, a simple majority of senators must approve the president's selection of Supreme Court justices, ambassadors, and other important government officers, including the heads of the departments in the executive branch, such as the Justice Department.

Limits on congressional power

The Constitution limits the powers given to Congress. Section 9 of Article I says Congress may not eliminate the writ of habeas corpus. A writ is a judicial order, and habeas corpus is a Latin term meaning "to have the body." The writ of habeas corpus is a procedure that prisoners can use to get released if they are being held in violation of the law. The writ requires a jailer to bring the prisoner before a court, where a judge can set the prisoner free if he or she is being held in violation of constitutional rights.

The Constitution also says Congress may not pass bills of attainder or ex post facto laws. A bill of attainder is a law that convicts a person of treason or other serious crime without a trial. An ex post facto law is one that punishes a person for doing something that was not illegal when done.

Amendments adopted since 1789, when the federal government began to operate under the Constitution, also limit the power of Congress. The states approved the first ten of these amendments, often called the Bill of Rights, in 1791. The Bill of Rights limits but does not eliminate Congress's power to restrict the freedoms of religion, speech, and assembly (First Amendment) and the right to bear arms (Second Amendment). The Eighth Amendment prevents Congress from passing a law that would impose cruel and unusual punishment on convicted criminals.

In addition to limits imposed by the Constitution, the system of checks and balances limits congressional power, too. As chief executive of the United States, the president enforces the laws made by Congress. A president who thinks a particular law is unwise or unimportant can ignore it by devoting people and money to enforcing other laws. As commander in chief of the U.S. Army and Navy, the president controls the military that Congress establishes.

The judiciary also checks the power of Congress. The primary judicial check is judicial review, which is the power to review congressional laws to determine if they violate any of the limitations in the Constitution. Judicial review is a controversial part of the system of checks and balances, because the Constitution does not specifically say the judiciary has this power. Many of the men who wrote the Constitution, however, presumed the judiciary would exercise this power. The Supreme Court confirmed this presumption in the 1803 case of Marbury v. Madison. In that case, the Supreme Court decided that a federal law giving the Supreme Court the power to hear cases for compelling government action was unconstitutional. Under the Constitution, such cases must begin in a lower federal court. The Supreme Court may only review them on appeal.

The executive branch: the president

The second Article of the Constitution begins, "The executive power shall be vested in a President of the United States of America." The executive power is the power to enforce the laws made by Congress.

The president's duties

Only four paragraphs in the Constitution say what the president's duties are. The power to enforce the nation's laws comes from the clause that says, "he shall take care that the laws be faithfully executed."

Making sure the laws are enforced would be impossible for one person, even in 1789. The Constitution says the president "may require the Opinion, in writing, of the principal Officer in each of the Executive Departments." This clause is a seed that has grown to give the executive branch fifteen major departments plus many more agencies. As of 2005, the fifteen departments are: Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Homeland Security, Housing and Urban Development, Interior, Justice, Labor, State, Transportation, Treasury, and Veterans Affairs. Some of the agencies are the Central Intelligence Agency (CIA), the Environmental Protection Agency (EPA), the National Aeronautics and Space Administration (NASA), the Peace Corps, and the U.S. Postal Service.

Many of the departments and agencies make and enforce laws, called regulations, that relate to their area of service. For example, under power given to it by Congress, the EPA makes rules concerning the nation's air, land, and water. Executive departments and agencies also administer government programs. The Department of Agriculture, for instance, gives money to industrial farming operations that qualify for financial help under congressional laws.

The head of each of the fifteen executive departments is called the secretary (except for the head of the Department of Justice, who is called the attorney general). The fifteen department heads make up the core of the president's cabinet. Presidents also may include other officials in their cabinet, such as the vice president, the chief of staff (the person who manages the president's staff), and important directors from executive agencies, such as the Central Intelligence Agency or the Office of Management and Budget. Presidents rely on their cabinet not only to run the departments, but also to give the president information and advice for making important decisions.

Besides enforcing the nation's laws, the president is commander in chief of the U.S. Army and Navy. This means the military is ultimately controlled by a civilian, a person who is not part of the military. Putting a civilian in control of the military is supposed to prevent the military from using its power against civilians.

The Constitution requires the president to give Congress "information of the State of the Union" and to recommend "such Measures as he shall judge necessary and expedient [proper]." President George Washington (1732–1799; served 1789–97) delivered the nation's first annual message on January 8, 1790. Washington read his written speech to Congress. President Thomas Jefferson (1743–1826; served 1801–9) thought this practice was too formal, so he simply delivered a written copy of his messages to Congress. President Woodrow Wilson (1856–1924; served 1913–21) revived the practice of delivering the address orally in person in 1913. President Calvin Coolidge's (1872–1933; served 1923–29) message of 1923 was the first to be broadcast by radio, and President Harry S. Truman's (1884–1972; served 1945–53) 1947 speech was the first to be televised.

Each year in January, the president delivers a televised State of the Union address to both chambers of Congress, with Supreme Court justices attending, too. The address gives Congress the president's view on how the country is doing, what is working, and what needs to be changed. On rare occasions, presidents appear before Congress to deliver special messages, such as when President George W. Bush (1946–) addressed Congress to explain his plan for responding to the terrorist attacks of September 11, 2001.

The president recommends "Measures" by proposing an annual budget for the federal government, which outlines how the government plans to raise and spend money. The president also recommends new laws, or changes to old laws, for Congress to consider. Because the president can veto, or reject, a law passed by Congress, Congress pays close attention to the president's recommendations. It is not, however, required to do what the president wants.

Another major role for the president under the Constitution is receiving "ambassadors and other public ministers." This makes the president the head of America's relations with foreign nations.

Limits on presidential power

One of the major limitations on the power of the executive branch is Congress's power to override a presidential veto by a two-thirds vote. Without this congressional power, the president would have full control over what bills become law. For example, in 1995, Congress passed a bill called the Private Securities Litigation Reform Act. The bill made it more difficult to sue private companies for misleading their investors, the people who invest money in a company. President Bill Clinton vetoed the bill in December 1995. Both chambers of Congress voted to override the veto, making the bill law.

The president can make treaties with other nations only when two-thirds of the senators approve. On May 24, 2002, for example, President George W. Bush and President Vladimir Putin (1952–) of Russia signed the Moscow Treaty on Strategic Offensive Reductions. The Moscow Treaty was an agreement to reduce the number of strategic nuclear warhead arsenals in America and Russia to between 1,700 and 2,200 each by December 2012. The U.S. Senate ratified the treaty unanimously in March 2003.

The Senate also must approve the president's selection of federal judges, ambassadors to other countries, executive department heads, and other important officers. This approval, however, need only be by a simple majority.

Both chambers of Congress check the president by playing a role in impeachment and conviction for treason, bribery, and other high crimes and misdemeanors. The House has the power to impeach, or formally accuse, a president of such misconduct. The Senate then has the power to try (put on trial) and convict a president accused of impeachable offenses.

The federal judiciary also checks the president's power, mostly by hearing and deciding cases under the nation's criminal laws. In these cases, federal courts determine whether an accused person is guilty of breaking the law. Many of these cases also involve questions of whether the executive branch has violated the accused person's constitutional rights.

The judicial branch: the Supreme Court and lower federal courts

Article III of the Constitution says, "The judicial power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." This means the Supreme Court is the only federal court created by the Constitution. Congress has sole authority to create federal courts underneath the Supreme Court.

Congress has used that power to create a vast federal judicial system. At the lowest level are federal district courts, the courts that hold trials. Criminal trials deal with people and businesses accused of violating the nation's criminal laws. A criminal law is a law that makes it unlawful to do something that is harmful to society, such as making illegal drugs or committing murder. Civil trials typically involve people or businesses that have private disputes to resolve, such as when one person breaks a contract, or agreement, that he or she has with another person.

As of 2005, the United States has ninety-four federal district courts. The districts cover either a portion of a state or an entire state, the District of Columbia, the Commonwealth of Puerto Rico, and the territories of the U.S. Virgin Islands, Guam, and the Northern Mariana Islands.

The next level of the federal judiciary is the circuit courts of appeals. There are twelve circuit courts of appeals, each of which covers a geographic region containing federal district courts. When a party loses a trial in federal district court, the party usually can appeal to the court of appeals in that district's circuit. The job of the courts of appeals is to review cases from the federal district courts to make sure the judges and juries there have not made significant errors.

If a party loses in the circuit court of appeals, the last place to go is to the Supreme Court of the United States, often called the court of last resort. As with the courts of appeals, the Supreme Court's job is to make sure the courts below did not make any major errors in a case.

The U.S. Supreme Court does not only hear appeals from the federal courts. It also hears appeals from the state judicial systems. Generally speaking, each state has trial courts similar to the federal district courts, courts of appeals similar to the federal circuit courts, and supreme courts similar to the U.S. Supreme Court. If a case that reaches a state supreme court involves federal laws or rights, the losing party can ask the U.S. Supreme Court to review the decision of the state supreme court. In the tight presidential election of 2000 between Texas governor George W. Bush and Vice President Al Gore (1948–), for example, an extremely narrow victory for Bush in Florida led Gore to sue to have votes in certain counties recounted. Bush appealed one of the cases from the Florida Supreme Court to the U.S. Supreme Court. The U.S. Supreme Court issued a decision in December 2000, stopping the recounts in Florida, giving Bush the victory. Florida's twenty-five electoral votes put Bush over the top and made him the presidential victor.

There is a limited amount of work the Supreme Court can do in one year, so it has a procedure for deciding which cases to review. The losing party in a federal circuit court of appeals or in a state supreme court can begin the process by filing a document called a petition for a writ of certiorari. (A writ is a court order, and certiorari is a Latin word that means "to certify a court case for review.") In the petition, the party asks the Supreme Court to review the case, explaining why the case is important enough to deserve the Supreme Court's attention. If four of the nine Supreme Court justices agree to review the case, the Supreme Court issues a writ of certiorari, which allows the losing party to present its appeal to the Supreme Court. Out of the tens of thousands of petitions that the Supreme Court receives each year, it agrees to hear only around one hundred of them.

Cases and controversies: the lifeblood of the courts

The federal judiciary at all levels (district courts, circuit courts of appeals, and Supreme Court) only has power to hear cases and controversies listed in the Constitution:

cases arising under the Constitution, laws, and treaties of the United States
cases affecting ambassadors and other public ministers
cases concerning the use of navigable waters
controversies in which the United States is a party
controversies between two or more states, between citizens of different states, and between citizens of the same state claiming lands under grants from different states
controversies between a state (or its citizens) and a foreign state or nation (or its citizens or subjects)

Most of the time, a case or controversy that falls in to one of these categories must be brought in a federal court. State courts cannot handle these cases. One exception is cases between citizens of different states. If their dispute does not involve a federal law, they may resolve it in a state court, or they may choose to go to federal court anyway if their dispute involves an amount of money that exceeds (as of 2005) $75,000.

In cases involving ambassadors or in which a state is a party, the Supreme Court acts like a trial court and hears the case originally. In all other federal cases, the Supreme Court has appellate jurisdiction. This means the trial must first be handled by a federal district court and then might be appealed to the circuit court of appeals and, finally, to the Supreme Court by petition for certiorari.

Judicial interpretation and judicial review

The plain language of Article III of the Constitution says the judiciary hears "cases and controversies." Some scholars and citizens believe that the sole power of the federal judiciary is to decide cases—that is, determine guilt or innocence in a criminal trial, and resolve a legal disagreement in a civil trial. Criminal and civil cases can both require the courts to interpret what a congressional law means, because the meaning is not always clear from the way Congress writes the laws. Such interpretation is one of the most important duties of the courts.

Federal courts, however, also exercise a power called judicial review. This is the power to review congressional and state laws that are involved in a case to decide whether the laws violate the U.S. Constitution. Some people think judicial review is necessary to prevent Congress and the president (who approves Congress's laws) from being too powerful. In other words, judicial review is part of the system of checks and balances set up by the Constitution. Others think that because the Constitution does not mention the power of judicial review, the federal judiciary should not exercise that power.

Judicial review, for example, was an important part of the case of Elk Grove Unified School District v. Newdow. In that case, a father named Michael Newdow sued the school district where his daughter attended public school. Newdow wanted the school to stop saying the Pledge of Allegiance because the Pledge says America is a nation "under God." Newdow, who is an atheist (a person who does not believe in God), argued that the Pledge is a religious prayer that violates the First Amendment, which prevents government from favoring one religion over others. The Ninth Circuit Court of Appeals agreed with Newdow, banning public schools in western states from using the Pledge. On Flag Day in June 2004, the U.S. Supreme Court reversed the ruling on a technicality. It said Newdow, who was never married to his daughter's mother and did not have custody of the child, had no power to file the lawsuit. The case, however, illustrated the controversy that arises when the Supreme Court is asked to use judicial review to strike down a widely accepted government practice based on an important constitutional right.

Because of judicial review, the federal judiciary is perhaps the branch most responsible for protecting civil liberties. These are rights that people have to be free from unreasonable governmental power. Civil liberties come primarily from the Constitution. As previously noted, the First Amendment in the Bill of Rights protects the freedoms of speech, religion, and assembly. The Fourth Amendment says the federal government may not search or arrest a person in an unreasonable fashion. The Sixth Amendment says accused criminals have a right to trial by jury and to face the witnesses against them with assistance from counsel, or a lawyer. The Eighth Amendment prevents cruel and unusual punishment. Criminal cases often require the courts to decide whether the government has violated a defendant's civil liberties.

Limiting judicial power

Just as with Congress and the president, the Supreme Court and lower courts have checks on their power. One of these comes not from the Constitution, but from the makeup of the Supreme Court. Under federal law, the Supreme Court contains up to nine justices. (Nine is the accepted total, but the Court continues to function with less than nine in the event of a justice's retirement or death.) Four out of the nine must vote to hear a case by issuing a writ of certiorari in order to review it. When the justices vote on how to decide a case, five must agree in order to change the result from the courts below. This means that, in theory, one justice alone has little power, and so not much ability to abuse it.

The biggest check on judicial power is the power of Congress. If senators and representatives disagree with how the Supreme Court is interpreting a law, they can amend, or change, the law to clarify it so the Court can alter its interpretation. Congress can also pass a new law to correct a constitutional defect when the Supreme Court strikes a law down as unconstitutional. For example, in Roe v. Wade in 1972, the Supreme Court ruled that states cannot ban abortions completely because women have a constitutional right to have abortions in some cases. After that decision, states rewrote their abortion laws to ban abortions in situations allowed under the Supreme Court's ruling. For example, most states ban abortions during the last three months of pregnancy unless the abortion is necessary for the health of the mother. In addition to its lawmaking power, Congress has the power to propose constitutional amendments, which change the Constitution if approved by the legislatures or conventions in three-fourths of the states.

As for the president, when a Supreme Court justice or lower court judge retires or dies, the president gets to appoint a replacement, and the Senate confirms or rejects the president's selection. Presidents use these opportunities to fill the courts with justices and judges who agreewith the president on the proper role of government and its three branches. If a majority of senators are from the same political party as the president, these appointments easily receive Senate approval. If the president and a majority of the Senate are from different political parties, the appointments can result in political battles, especially for appointments to the Supreme Court. As of 2005, presidents have nominated 148 people to the Supreme Court. The Senate has rejected twelve. The most recent rejections were during the Reagan administration with Robert H. Bork (1927–) in 1987, and twice in the Nixon administration with Clement Haynsworth Jr. (1912–1989) in 1969 and G. Harrold Carswell (1919–1992) in 1970. The Senate also has taken no action on five, and postponed voting on three, leading to unofficial rejection of these nominees.

The final significant check on the power of the judiciary is the power to remove judges from office. All officers of the federal government, including the president, vice president, and judges of the Supreme Court and lower courts, can be impeached and removed if convicted of treason, bribery, or other high crimes and misdemeanors. The House of Representatives has the sole power to impeach, or accuse, a judge of such crimes, and the Senate has the sole power to try, convict, and remove the judge from office.

As of 2005, only seven judges in the nation's history have been removed from office as a result of impeachment. The very first was John Pickering (c. 1738–1805), a federal district court judge who was impeached, convicted, and removed from office in March 1803 for drunkenness. The Pickering impeachment was a test run for Congress's real target, Supreme Court justice Samuel Chase (1741–1811), who was making speeches critical of the presidential administration of Thomas Jefferson. The House of Representatives impeached Chase in 1804. The Senate, however, voted not to convict, so Chase remained on the bench. As of 2005, he is the only Supreme Court justice to have been impeached.