This began as a number of comments which I found myself writing over...and over….and over, in response to comments revealing that the commenter simply didn’t understand various aspects of the way our government works. Finally I became so tired of doing it that I simply recommended that the person take a course or read a book—and for that I was told that I was not fulfilling my duty.
So here it is---all in one place. Think of it as a mini-mini-mini version of the material a person should have learned in ninth grade civics---the problem of course being that civics has not been taught in ninth grade or at any other time for many, many years.
The purpose of this story is that you or I—anyone on this site—can simply link to it in lieu of writing the same explanation one more wearisome time.
Anyone who disagrees with any of this material is welcome to explain in a comment. If the story is linked, the comments will follow it.
ONE: THE CONSTITUTION
We all know what the Constitution is: it’s the document whose picture appears at the top of this story. Isn’t it? Well, yes—but.
In fact, legally, it’s the document plus all the Amendments. They all have equal force of law, and if one detail contradicts another, the newer one rules. There is no such thing as “It’s just an Amendment.”
In addition to that, lawyers consider all the case law that has built up around this document to also be “part of the Constitution”. (At least that was what I was taught by the lawyer who taught my Constitutional Law course.) There are shelves and shelves of thick volumes containing all this case law. That means the Constitution is in fact a pretty voluminous document.
TWO: THE THREE BRANCHES OF THE FEDERAL GOVERNMENT
Most of us do know that these are the Executive, the Legislative, and the Judicial—but at least one person answered that question: “The President, the Senate, and the House.” A great deal of confusion does arise regarding the powers of each branch.
The three branches are considered to be separate. For now let’s just take that to mean that they can’t meddle in each other’s business, except in certain tightly specified ways. So, no, the president can’t remove chairs of Congressional committees. On the other hand, Congress and its committees can’t tell any arm of the Executive branch what to do.
THE EXECUTIVE BRANCH
This consists of the President and all the various departments and agencies under him, plus the vice president. A new President takes office exactly at noon on January 20 of the year after being elected—whether he is sworn in at that moment or not.
The president nominates or appoints the heads of those agencies, and in most cases can direct their activities. However, there are some entities he can’t control, either legally or by tradition: the most well-known are the Federal Reserve, the Department of Justice, and the Postal Service. The president can fire or request the resignation of the heads of departments—but not all of them.
One of the major powers of the presidency is to sign bills, passed by the legislative branch, into law--or not. He can also veto a bill sent to him.
“Executive orders” are a more recent power of the presidency, and one that is controversial. They can work only to the extent that they are not overthrown in some way by some other entity.
The military is considered to fall under the Executive Branch, and the president is Commander in Chief of the military. In practice this power is limited because military affairs are now so complex and technical. He can, however, assign broad missions, such as “Capture Osama Bin Laden!” or “Assist Ukraine!”
The Vice President: legally the VP is a separately elected officer. He does not fall under the president’s jurisdiction. The president can neither give him orders nor fire him. The VP has only two legal duties: to preside over the Senate and break any ties there, and to hang around waiting for the president to die or resign, in which case he becomes president. Note that he becomes president instantly, although he will take the oath of office at some subsequent moment. In modern times the president often will put the VP in charge of something, but the VP can refuse if he wants to.
THE LEGISLATIVE BRANCH
This consists of the Senate and the House of Representatives. They operate completely independently of each other, and in some ways differently, except that they both have to pass the same version of the same bill in order to send it to the president for his signature or veto.
In both houses the power over what happens is largely vested in the party that numerically holds the majority in that house. This is determined by means of the Caucus. That means that each party holds a meeting (known as a caucus) and elects a leader of their group. The full house then meets and elects officers, and because each group will vote for the person its group selected, the winner of that vote becomes the officer of that house. The loser is called the Minority Leader and has no power except over his own caucus—and sometimes not even that.
In the House of Representatives, the person who wins that vote becomes the Speaker of the House. The Speaker has broad powers over everything that happens in the House. In fact usually nothing much can happen without the Speaker’s consent, if not active participation. That is why which party has a majority in the House is so very important. It doesn’t usually matter very much whether individual members of the Speaker’s caucus always vote for the Speaker’s approved bills, or not.
The Speaker is also second in the presidential succession, after the VP. If both the president and the VP were to die, the Speaker would at that instant become President.
In the Senate the procedure is similar: each caucus votes for a leader, and the caucus with a majority gets to elect that person, who is called the “majority leader”, and controls what happens, from chairmanships of committees, right down to which bills can come to a vote. The person elected by the losing caucus becomes the “minority leader”, who has no power except as his words might be listened to by anyone. As in the House, this is why the formal party designation of Senators is so important, regardless of how they vote.
In the Senate there is an additional officer elected by the majority caucus: the President Pro Tem. This person takes the chair when the VP is absent, but cannot break ties, and has a few other duties. His greatest importance is that he is third in line for the Presidency, after the Speaker of the House. If the president, VP, and Speaker were all to die, the President Pro Tem would instantly become President of the United States.
THE JUDICIAL BRANCH
The Federal Judiciary consists of three layers: District Courts, Circuit Courts of Appeals, and the Supreme Court. Ordinarily a case first goes to a District Court, then if the decision there is appealed, it will go to the Circuit Court for that District, and then can be appealed to the Supreme Court. The Supreme Court will hear only a small fraction of the cases that are sent to it. If it rejects hearing a case, the decision of the lower court is final.
There are 13 Circuit Courts, which hear the appeals from 94 District Courts. The circuits each comprise an area of several states. Each Circuit Court has multiple judges. This means there is a large number of Federal Judges—currently 870. (Of these, Trump appointed 231.) Each Federal Judge is appointed by the President and confirmed by the Senate. An appointment is, in practice, for life; until the judge retires or dies.
The Supreme Court has held the popular distinction of having the final say on a great many matters, because it can decide whether a law or regulation is constitutional; that is, in harmony with the Constitution, and if it isn’t, that voids it. In fact any court can make that determination. The distinction of the Supreme Court is that if a lower court makes such a ruling, it could be over-ruled at the higher level.
The authority of the Supreme Court rests on the willingness of the populace and the other branches of government to abide by its rulings. It actually has no enforcement powers of its own. The theory is that all lower Federal Courts will treat its rulings as precedent, and that all matters in dispute will sooner or later fall within the purview of the Federal Court system, and therefore be decided in harmony with the SC ruling on that matter, and that everyone will thereafter abide by that decision.
THREE: CHECKS AND BALANCES
Although the three branches of the Federal Government are “separate”, there are many procedures built in by which each one serves as a check on the other two.
- The Executive Branch authorizes (signs) measures passed by the Legislative Branch—or not. The Department of Justice enforces crimes identified by the Legislative Branch—or not. The Executive Branch spends the money authorized by the Legislative Branch—or not.
- The Executive Branch (President) appoints Federal Judges.
- The Legislative Branch (Senate only) has to confirm judicial and other appointments made by the Executive Branch—and if it doesn’t, a different appointment must be made.
- The Legislative branch (House of Representatives) can impeach (indict) members of the Executive and Judicial Branches, try them (in the Senate), and remove them from office if convicted. There have been many impeachments, but only six convictions and removals, all of them judges.
- The Legislative branch can make rules and parameters for the Judicial Branch, such as numbers of courts, of judges in each court, and the matters over which courts have jurisdiction.
- The Judicial Branch can try members of the other two branches for crimes, and if convicted, can sentence them. This rarely happens, but note the conviction of Attorney General John Mitchell in the Nixon Administration.
- As noted above, the Judicial Branch can declare laws or procedures of the other two branches Unconstitutional.
FOUR: THE STATES
The states have enormous powers, and the matter of the powers of the states versus the powers of the Federal Government is complex, and is always a balancing act. This subject will not be addressed here—at least not by this author. But readers should feel free to tackle it in comments.
SUMMARY
This mini-course does not address all issues, of course. But please read it thoroughly before bringing up other points. It should at least clear up a great many of the misunderstandings that have appeared on this site over and over.