The federal Constitution was written to ensure that government power is distributed and never concentrated in one or more areas. This philosophy is served by federalism, where the federal government shares power with the states. It is also further served by dividing the government into three branches, all responsible for different government duties and all checking and balancing each other. The three branches of government are detailed in Articles I–III of the federal Constitution and are the legislative branchThe branch of government responsible for creating statutory law., the executive branchThe branch of government responsible for enforcing statutory law., and the judicial branchThe branch of government responsible for interpreting statutory and constitutional law(s).. While the federal Constitution identifies only the federal branches of government, the principle of checks and balances applies to the states as well. Most states identify the three state branches of government in their state constitution.
Each branch of government has a distinct authority. When one branch encroaches on the duties of another, this is called a violation of separation of powersEach government branch must act only within the scope set forth in the Constitution.. The courts decide whether a government branch has overstepped its boundaries because courts interpret the Constitution, which describes each branch’s sphere of influence. Thus the judicial branch, which consists of all the courts, retains the balance of power.
The legislative branch is responsible for creating statutory laws. Citizens of a state can vote for some state statutes by ballot, but the federal legislative branch enacts all federal statutes. In the federal government, the legislative branch is headed by Congress. States’ legislative branches are headed by a state legislature. Congress is bicameralMade up of two houses., which means it is made up of two houses. This system provides equal representation among the several states and by citizens of the United States. States are represented by the SenateThe house of Congress responsible for representing each state.. Every state, no matter how large or small, gets two senators. Citizens are represented by the House of RepresentativesThe house of Congress responsible for representing each citizen of the United States.. Membership in the House of Representatives is based on population. A heavily populated state, like California, has more representatives than a sparsely populated state, like Alaska. States’ legislatures are generally bicameral and have a similar structure to the federal system.
Figure 2.4 Diagram of the Legislative Branch
The legislative branch can check and balance both the executive branch and the judicial branch. Congress can impeach the president of the United States, which is the first step toward removal from office. Congress can also enact statutes that supersede judicial opinions, as discussed in Chapter 1 "Introduction to Criminal Law". Similarly, state legislature can also impeach a governor or enact a state statute that supersedes a state case law.
The executive branch is responsible for enforcing the statutes enacted by the legislative branch. In the federal government, the executive branch is headed by the president of the United States. States’ executive branches are headed by the governor of the state.
Figure 2.5 Diagram of the Executive Branch
The executive branch can check and balance both the legislative branch and the judicial branch. The president of the United States can veto statutes proposed by Congress. The president also has the authority to nominate federal justices and judges, who thereafter serve for life. State executive branches have similar check and balancing authority; a governor can generally veto statutes proposed by state legislature and can appoint some state justices and judges.
The judicial branch is responsible for interpreting all laws, including statutes, codes, ordinances, and the federal and state constitutions. This power is all encompassing and is the basis for judicial review, referenced in Chapter 1 "Introduction to Criminal Law". It allows the judicial branch to invalidate any unconstitutional law in the statutory source of law and also to change the federal and state constitutions by interpretation. For example, when a court creates an exception to an amendment to the constitution, it has made an informal change without the necessity of a national or state consensus. The federal judicial branch is headed by the US Supreme Court. Each state’s judicial branch is headed by the highest-level state appellate court. Members of the judicial branch include all judges and justices of every federal and state court in the court system, which is discussed shortly.
Figure 2.6 Diagram of the Judicial Branch
The judicial branch can check and balance both the legislative branch and the executive branch. The US Supreme Court can invalidate statutes enacted by Congress if they conflict with the Constitution. The US Supreme Court can also prevent the president from taking action if that action violates separation of powers. The state courts can likewise nullify unconstitutional statutes passed by the state legislature and void other executive branch actions that are unconstitutional.
Table 2.1 The Most Prominent Checks and Balances between the Branches
| Government Branch | Duty or Authority | Check and Balance | Government Branch Checking and Balancing |
|---|---|---|---|
| Legislative | Create statutes | President can veto | Executive |
| Executive | Enforce statutes | Congress can override presidential veto by 2/3 majority | Legislative |
| Judicial | Interpret statutes and Constitution | President nominates federal judges and justices | Executive |
| Executive | Enforce statutes | Senate can confirm or reject presidential nomination of federal judges and justices | Legislative |
| Executive | Enforce statutes | Congress can impeach the president | Legislative |
| Legislative | Create statutes | Courts can invalidate unconstitutional statutes | Judicial |
| Executive | Enforce statutes | Courts can invalidate unconstitutional executive action | Judicial |
| Judicial | Interpret statutes and Constitution | Statutes can supersede case law | Legislative |
Answer the following questions. Check your answers using the answer key at the end of the chapter.
