Monday, February 27, 2017

Chapter 12 (Chapter Summaries) "The General Government: Separation of Powers and Checks and Balances" in Elements of Law and the United States Legal System

(Washington Monument Pix © Larry Catá Backer 2016)

I recently announced the forthcoming publication by Carolina Academic Press of my Elements of Law and the United States Legal System (ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1).

The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system.  The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that  tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.

This set of posts provide interested readers with a more detailed description-summary of each chapter along with teaching objectives. After these descriptions I will circulate a chapter by chapter based draft Teacher's Manual. Comments welcome for all. 

All contents posted on line may be accessed here:

Summary book organization and Chapter 12 Summary follows.

The work is divided into three parts and a historical preface.  The Preface traces the origins of the materials and its objectives.  It suggests as well the challenges of teaching normative or framing concepts around a profession based on the training in technique; in effect the book seeks to expose the underlying normative structures and patterns well embedded within the techniques that tend to center the study  of law and legal subjects. Part I: What is Law? An Introduction,  is divided into two chapters.  Chapter 1 sets out a detailed roadmap for the materials built around an introductory problem that highlights the book's major themes. Chapter 2 then introduces the principal vocabulary, institutions and forms, starting with the issue of the connection between law, justice and the state. Part II: U.S. Law: System and Sub-Systems (Chapters 3-7), then focuses on the principal components that together make up the U.S. legal system. Its five chapters each focus on three forms of law sub-systems.  The first includes law articulated by the courts--common law and equity.  The second touches on law articulated by legislatures--statutes and administrative regulations. The third focuses on emerging systems of governance beyond the state--private regulation, hybrid public-private regulation and social norms. Part III: Hierarchies of Law and Governance: The Relationship Between People, Law, and Government moves from the study of the specific characteristics of legal subsystems to their relationship to government. It speaks to the governmentalization of law. Its four chapters first consider the fundamental theories that tie law to the government, the role of rule of law concepts, the development of hierarchies of law within the domestic legal order of the United States and then the relationship of domestic to international law. Part IV: Institutional Architecture of Law and Governance: The Law of Government of the United States then considers the legal rules through which governmental regulatory authority may be exercised. If Part III spoke to the issue of the governmentalization of law, Part IV touches on the legalization of government. Its four chapters considers the fundamental principles of separation of powers and checks and balances, the constraining of administrative discretion, popular law making through initiative and referendum, and the legal structures of federalism. Part V: The Role of the Courts in the Application of Law: Judicial Review, Methodologies of Interpretation, and Legitimacy closes the circle by bringing the focus back to the courts and their engagement with law. The first of its three chapters touches on the doctrine of judicial review and the legalization of the authority to interpret and apply law beyond common law. The second of its chapters then considers the techniques of judicial interpretation and their relationship to judicial legitimacy.  The last of the chapters then considers the binding nature of judicial opinion, especially the legal effect of judicial decisions interpreting statute.

Part IV: Institutional Architecture of Law and Governance: The Law of Government of the United States
Chapter 12. The General Government: Separation of Powers and Checks and Balances

A. Introduction

B. Problem 12: Congressional Veto
--DaCosta v. Nixon
--Notes and Questions
--Immigration and Naturalization Services v. Chadha
--Notes and Questions
C. The General Government; Separation of Powers and Checks and Balances
--Constitution of the United States Articles I–III
--Notes and Questions
--James Madison, The Federalist No. 47
--United States v. Belmont
--Notes and Questions
--Baker v. Carr
--Youngstown Sheet & Tube Co. v. Sawyer
--Notes and Questions
--A Note on Youngstown
D. Judicial Administration of the Relationship Between States and the General Government—A Legalization of Federalism
--Bond v. United States
--Notes and Questions 
E. Learning Objectives

A. Introduction

The student started the journey to this point in the materials form a very simple starting point, with a question: what is law in the United States? That question lead the student to first consider the relationship of law to general principles of justice and structure; from that the student considered the contextual nature of justice and its basic character as embedded in the historical realities of a political community but also grounded in fairness, predictability, and certainty. From that initial consideration, the student was invited to think about the possibility that, at least in the United States, the question of the definition of law might be separated form the question of the consideration of the government through which law is administered and produced.

The materials to this point has sought to unpack the examined the nature of the principal object of the study of the legal system of the United States, its forms of law, and their systematization. Part II of the materials focused on the identification and characteristics of the principles systems into which law is formally divided in the United States—common law, equity, statutes, and administrative regulations. The student also considered that emerging area of hybrid and private law, those regulatory systems in which the production or administration of law might not be centered within the institutions of the political community. In the U.S., these together constitute the institution of law. Part III considered the forms in which these legal sub-systems are systemized through the institution of government. The student considered the theories under which government is organized and their application to the United States, the development of a hierarchy of law, its relation to the law developed in international forums, and then considered the issue of legal integrity through the notion of “rule of law” as a political and juridical concept.

In this Part IV, the materials turn to a consideration of those political institutions established to wield law in the United States. The student will briefly review the basics of the organization of the American state. The object of that review is not a classical civics lesson but to attempt a more sophisticated understanding of the way in which the institutions of law have been used to institute government, and in that process to divide the political authority with which those institutions have been vested to make, apply and enforce law. We start with the General Government, considering the division of its power into three “bundles”—(a) executive; (b) legislative; and (c) judicial. We then consider the way in which these divisions of power are policed through law (rather than through politics) by introducing the concepts of separation of powers and checks and balances as structural constraints, that is, as producing a cage of law around power. The chapter starts with an introductory consideration of the legal regulation of executive power, and the way in which law is used to constrain its exercise.

The first three parts of these materials provided a general introduction to the core issues of a legal education. Part I considered the nature of law in the organization of the political community of the United States. Part II introduced students to the basic definitions of and then introduced students to the distinct forms of law that have risen in the West: customary law (common law), statutes, administrative regulations, and non-law law. Part III introduced government to the mix. It considered hierarchies of law and government. It considered the ways in which government is ordered through law and the hierarchies of law― from constitution to administrative regulation and court decisions. Students were also introduced to the rule of law principles to the legalization of the operation of government within law, and to the division between the system of laws that comprise a domestic legal order and those that make up the international legal order.

Those materials set the stage for a more targeted discussion of the specifics of the organization of the American law-state. Central to the establishment of the organization of the general government were three key postulates of organizing government. The first was that government’s organization must be so structured that it would impede tyranny by the whole of government, by any part of it or by factions of individuals within it. The British imperial government was a model against which to structure such a government. To that end, the power of government must not be concentrated and ought to be diffused among as many parts and actors as necessary and prudent. This premise is usually referred to as separation of powers. In addition, the exercise of power by any one branch was to be dependent on the willingness of the others to cooperate. This premise is usually referred to as checks and balances. The second was that government must be efficient. The confederation of the newly independent colonies after 1783, organized through its Articles of Confederation, was a model against which to structure a more efficient state apparatus. This is usually understood as principles of coherence. The third was that the general government was meant to provide the benefits of aggregation with as little loss of local sovereignty as possible. To that end the construction of a unitary nation-state was to be avoided and the powers of the general government, as against the residuary powers of the states were to be carefully circumscribed. This is usually referred to as principles of federalism. The three premises were not entirely complementary. At its limit, institutional power fracture reduces the possibilities of tyranny but requires that a substantial amount of inefficiency be built into government. Efficient government tends to foster majoritarian tyranny and the challenge to the residuary powers of states. And the constraints on federal power tends to weaken both federal efficiency and avoid tyranny, it merely shifts those issues down to the state level.

In this chapter, students consider the legal structures within which the general government of the United States ―what is commonly now called its “federal” government—is organized. Students then consider the three animating principles that support its design―separation of powers, checks and balances and division of power between general and state government (federalism). One starts, of course, with Constitutional text, which provides the legal basis for the organization of government and the specification of the scope of its power.
Learning Objectives:

(1) The student should be familiar with the extent and limits of executive power, and the role of law in constraining its exercise.

(2) The student should be introduced to constraints of executive power regarding the independence of federal agencies by working through a problem regarding executive power and through a reading of INS v. Chadha.

(3) The student should understand the basic organization of the American law-state and the concepts of federalism, separation of powers, and check and balances through a reading of Articles I, II, and III of the United States Constitution.

(4) The student will examine the organization of the federal government and the division of power between general and state government.

(5) The student will be introduced to the concept of separation of powers between the three branches of the U.S. government through a reading of James Madison’s The Federalist No. 47, and United States v. Belmont.

(6) The student will consider the role of courts in developing a rule of interpretation that treats certain actions as political questions for which there’s no judicial role in resolving disputes through a reading of Baker v. Carr.

(7) The student will examine the power of federal courts to impose structural constraints on political choices made by government officials through a reading and interpretation of Youngstown Sheet & Tube Co. v. Sawyer.

(8) The student will be introduced to federalism as a political concept and a a legal concept, i.e. the legalization of the division of power between general and state government, by working through and problem and a reading of Bond v. United States.

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