Judicial Branch

The Freedom Charters signified defining moments in American History: and part of the creation of government, was the foundation of a tri-functional democracy.




What Is Contained In The Judicial Branch

The judicial branch hears cases that challenge or require interpretation of the legislation passed by Congress and signed by the President. It consists of the Supreme Court and the lower federal courts. Appointees to the federal bench serve for life or until they voluntarily resign or retire.

The Supreme Court is the most visible of all the federal courts. The number of Justices is determined by Congress rather than the Constitution, and since 1869, the Court has been composed of one Chief Justice and eight Associate Justices. Justices are nominated by the President and confirmed by the Senate.

Judiciary Courts:
United States Supreme Court
Federal Judicial Center
United States Federal Courts
United States Code
United States Tax Court
Public Access to Court Electronic Records (PACER)

The United States Court of Appeals
First Circuit Fifth Circuit Eighth Circuit Eleventh Circuit
Third Circuit Sixth Circuit Ninth Circuit D.C. Circuit
Fourth Circuit Seventh Circuit Tenth Circuit Federal Circuit

The role of the Judicial Branch of the U.S. Government is defined in Article III of the Constitution of the U.S.A.

The judiciary is expressly prohibited from making law.

The judiciary is here to administer the courts.

There is no need for the judiciary to interpret the law as Common Law mandates that law must be simple enough to be understood by the common man, thus if a law is ambiguous or not easily understood the function of the judiciary is not to try and interpret some meaning for the law, but only to send the law back to Congress.

The Judicial branch is meant to act as a barrier or wall between the government and the people.

"The judicial branch has only one duty --- to lay the article of the Constitution which is involved beside the statue which is challenged and to decide whether the latter squares with the former. . .the only power it (the Court) has. . .is the power of judgment." - U.S. V. BUTLER, 297 US (1936)

Supreme Court:

The Supreme Court, created by the Judiciary Act of September 24, 1789, has final authority in all legal questions or controversies arising under the Constitution or the laws of the United States.The Supreme Court justices have lifetime appointments and are not subject to election - they are annointed by presidential nomination, with congressional oversight/approval. Their decisions have a broad scope and are difficult to overturn. They can decide which cases they will hear. The executive and legislative branches, whether republican or democrat, have to deal with the Supreme Court's composition. A district court can issue permanent injunctions against the enforcement of a city ordinance passed by a city council. A criminal court judge can interpret the law as to acceptance of evidence, how and when to apply 4th, 6th and 14th amendment protections, and use the sentencing recommendations as loosely or strictly as he/she deems appropriate. If someone appeals a judge's decision, who hears the appeal? Other judges. Interpreting the law is a powerful responsibility and its consequences are far reaching.

Whose Power is This, Anyway?

"Federalism" is the process by which two or more governments share powers over the same geographic area.

In America, both the state governments and the U.S. government have certain powers.

Which government gets what powers is spelled out by the Tenth Amendment to the U.S. Constitution as follows:

"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."

For example, under Article I, Section 8 of the Constitution, grants the U.S. Congress certain powers such as coining money, regulating interstate trade and commerce, declaring war, raising an army and navy and to establish laws of immigration.

Things the states cannot do are listed in Article I, Section 9. Among these, states are forbidden from coining money, entering into treaties, charging duties on imports and exports and declaring war.

Since the Constitution does not mention them, powers like requiring drivers licenses and collecting property taxes are among the many powers "reserved" to the states.

Most of the time, the line between the powers of the U.S. government and those of the states is clear. Sometimes, it is not. Whenever a state government's exercise of power might be in conflict with the Constitution, we end up with a battle of states' rights which must often be settled by the Supreme Court.

Probably the greatest battle over states' rights -- segregation -- took place during the 1960's civil rights struggle.

Segregation: The Supreme Battle of State's Rights

In 1954, the Supreme Court in its landmark Brown v. Board of Education decision ruled that separate school facilities based on race are inherently unequal and thus in violation of the 14th Amendment which states, in part: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

However, several predominately Southern states, chose to ignore Brown. v. Board of Education and continued the practice of racial segregation in schools and other public facilities.

The states based their stance on the 1896 Supreme Court ruling in Plessy vs. Ferguson. In this historic case, the Court, with only one dissenting vote, ruled racial segregation was not in violation of the 14th Amendment if the separate facilities were "substantially equal."

Protests against segregation built steadily during the 1950s and 60s, but the states continued to declare their constitutional power to regulate access to public facilities based on race.

In June of 1963, Alabama Governor George Wallace stood in front of the doors of the University of Alabama preventing black students from entering and challenging the federal government to intervene. Later the same day, Wallace gave in to demands by Asst. Attorney Gen. Nicholas Katzenbach and the Alabama National Guard allowing black students Vivian Malone and Jimmy Hood to register.

During the rest of 1963, federal courts ordered the integration of black students into public schools throughout the South. In spite of the court orders, and with only 2 percent of Southern black children attending formerly all-white schools, the Civil Rights Act of 1964 authorizing the U.S. Justice Department to initiate school desegregation suits was signed into law by President Lyndon Johnson.

A less momentous, but perhaps more illustrative case of a constitutional battle of "states' rights" went before the Supreme Court last November when the Attorney General of the United States Reno took on the Attorney General of South Carolina Condon.

Reno v. Condon - November 1999

The Founding Fathers can certainly be forgiven for forgetting to mention motor vehicles in the Constitution, but by doing so, they granted the power to require and issue drivers licenses to the states under the Tenth Amendment. That much is clear and not at all disputed, but all powers have limits.

State departments of motor vehicles (DMVs) typically require applicants for driver's licenses to provide personal information including name, address, telephone number, vehicle description, Social Security number, medical information and a photograph.

After learning that many state DMVs were selling this information to individuals and businesses, the U.S. Congress enacted the Driver's Privacy Protection Act of 1994 (DPPA), establishing a regulatory system restricting the states' ability to disclose a driver's personal information without the driver's consent.

In conflict with the DPPA, South Carolina laws allowed the State's DMV to sell this personal information. South Carolina's Attorney General Condon filed a suit claiming that the DPPA violated the Tenth and Eleventh Amendments to the United States Constitution.

The District Court ruled in favor of South Carolina, declaring the DPPA incompatible with the principles of federalism inherent in the Constitution's division of power between the States and the Federal Government. The District Court's action essentially blocked the U.S. governments power to enforce the DPPA in South Carolina. This ruling was further upheld by the Fourth District Court of Appeals.

United States Attorney General Reno appealed the District Courts' decisions to the Supreme Court.

On Jan. 12, 2000, the U.S. Supreme Court, in the case of Reno v. Condon, ruled that the DPPA did not violate the Constitution due to the U.S. Congress' power to regulate interstate commerce granted to it by Article I, Section 8, clause 3 of the Constitution.

According to the Supreme Court, "The motor vehicle information which the States have historically sold is used by insurers, manufacturers, direct marketers, and others engaged in interstate commerce to contact drivers with customized solicitations. The information is also used in the stream of interstate commerce by various public and private entities for matters related to interstate motoring. Because drivers' personal identifying information is, in this context, an article of commerce, its sale or release into the interstate stream of business is sufficient to support congressional regulation."

So, the Supreme Court upheld the Driver's Privacy Protection Act of 1994 and the States cannot sell our personal drivers' license personal information without our permission, which is a good thing. On the other hand, the revenue from those lost sales must be made up in taxes, which is not such a good thing. But, that's how federalism works.

National Vs. State Government

The U.S. Constitution establishes a government based on "federalism," or the sharing of power between the national, and state (and local) governments. Our power-sharing form of government is the opposite of "centralized" governments, such as those in England and France, under which national government maintains total power.

While each of the 50 states has its own constitution, all provisions of state constitutions must comply with the U.S. Constitution. For example, a state constitution cannot deny accused criminals the right to a trial by jury, as assured by the U.S. Constitution's 6th Amendment.

Under the U.S. Constitution, both the national and state governments are granted certain exclusive powers and share other powers.

Exclusive Powers of the National Government

Under the Constitution, powers reserved to the national government include:

Print money (bills and coins)

Declare war

Establish an army and navy

Enter into treaties with foreign governments

Regulate commerce between states and international trade

Establish post offices and issue postage

Make laws necessary to enforce the Constitution

Exclusive Powers of State Governments

Powers reserved to state governments include:

Establish local governments

Issue licenses (driver, hunting, marriage, etc.)

Regulate intrastate (within the state) commerce

Conduct elections

Ratify amendments to the U.S. Constitution

Provide for public health and safety

Exercise powers neither delegated to the national government or prohibited from the states by the U.S.

Constitution (For example, setting legal drinking and smoking ages.)

Powers Shared by National and State Government

Shared, or "concurrent" powers include:

Setting up courts

Creating and collecting taxes

Building highways

Borrowing money

Making and enforcing laws

Chartering banks and corporations

Spending money for the betterment of the general welfare

Taking (condemning) private property with just compensation

Federal Rule Making Process

The Clean Air Act,The Food and Drug Act, The Civil Rights Act -- examples of landmark legislation requiring months, even years of highly publicized planning, debate, compromise and reconciliation in Congress. Yet the work of creating the vast and ever-growing volumes of "federal regulations," the real and enforceable laws behind the acts, happens largely unnoticed in the offices of the government agencies rather than the halls of Congress.

What are federal regulations? Where do they come from and under what oversight are they written, enacted and, at least once so far, de-enacted?

Regulatory Agencies: Agencies, like the FDA, EPA, OSHA and at least 50 others, are called "regulatory" agencies, because they are empowered to create and enforce rules - regulations - that carry the full force of a law. Individuals, businesses, and private and public organizations can be fined, sanctioned, forced to close, and even jailed for violating federal regulations. The oldest Federal regulatory agency still in existence is the Office of the Comptroller of the Currency, established in 1863 to charter and regulate national banks. See: History of Regulatory Programs.

The Federal Rulemaking Process: is how federal regulations are created and it goes something like this:

First, Congress passes a law designed to address a social or economic need or problem. The appropriate regulatory agency then create regulations necessary to implement the law. For example, the Food and Drug Administration creates its regulations under the authority of the Food Drug and Cosmetics Act, the Controlled Substances Act and several other actscreated by Congress over the years. Acts such as these are known as "enabling legislation," because the literally enable the regulatory agencies to create the regulations required to administer enforce them.

The "Rules" of Rulemaking: Regulatory agencies create regulations according to rules and processes defined by another law known as the Administration Procedure Act APA).

The APA defines a "rule" or "regulation" as...

The whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency.

... and, the process of "rulemaking" is defined as:

Agency action which regulates the future conduct of either groups of persons or a single person; it is essentially legislative in nature, not only because it operates in the future but because it is primarily concerned with policy considerations.

Under the APA, the agencies must publish all proposed new regulations in the Federal Register at least 30 days before they take effect, and they must provide a way for interested parties to comment, offer amendments, or to object to the regulation.

Some regulations require only publication and an opportunity for comments to become effective. Others require publication and one or more formal public hearings. The enabling legislations states which process is to be used in creating the regulations. Regulations requiring hearings can take several months to become final.

New regulations or amendments to existing regulations are known as "proposed rules". Notices of public hearings or requests for comments on proposed rules are published in the Federal Register, on the Web sites of the regulatory agencies and in many newspapers and other publications. The notices will include information on how to submit comments, or participate in public hearings on the proposed rule.

In addition, the complete text of all proposed rules is published in the Federal Register and typically posted on the agencies' Web sites.

Once a regulation takes effect, it becomes a "final rule" and is printed in the Federal Register, the Code of Federal Regulations and usually posted on the Web site of the regulatory agency. For example, the Occupational Health and Safety Administration (OSHA) lists all of the agencies' final rules on the OSHA Regulations & Compliance Links page of its Web site.