The United States Legal System

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Sources and Hierarchy of Law
Role of the Legislature in the Law-making Process
Role of the Executive in the Law-making Process

 Sources and Hierarchy of Law

The Constitution
The Constitution of the United States is the "supreme law of the land;" it provides the basis for the U.S. government, and guarantees the freedom and rights of all U.S. citizens. No laws may contradict any of the Constitution's principles and no governmental authority in the U.S. is exempt from complying with it. The federal courts have the sole authority to interpret the Constitution and to evaluate the federal constitutionality of federal or state laws.

The United States Legal System, explained by attorney Martin G. Hilliard, family and criminal law International Treaties
Treaties made by the United States are the Supreme law of the land and under the U.S. Constitution, as are federal. In the case of a conflict between a treaty and a federal statute, the one that is later in time or more specific will typically control. Treaties to which the United States is a party may be found in the U.S. Treaties Service, the Statutes at Large, the Treaties and other International Acts Series issued by the State Department, and the United Nations Treaty Series. Treaties are often implemented by federal statutes.

Federal Statutes
Federal Statutes are published first in Slip Law, then in the Statutes at Large and subsequently in the United States Code. An example of a cite to a federal statute is: 42 U.S.C. sec. 9607, which would refer to title 42, section 9607 of the U.S. Code. Federal statutes may be challenged in federal court.

Agency Rules and Executive Orders
Federal administrative bodies issue rules and regulations of a quasi- legislative character; valid federal regulations have the force of law and preempt state laws and rules. Rules and regulations may only be issued under statutory authority granted by Congress.

The President also has broad powers to issue executive orders. An executive order is a directive from the President to other officials in the executive branch. Proposed and final rules, executive orders and other executive branch notices are published daily in the Federal Register. No person may be subject to any rule required to be published in the Federal Register and not so published. 5 U.S.C. sec. 552(a)(1).

Every federal agency must publish: descriptions of its organizational structure; general statements of how the agency functions; its rules of procedures, available forms and descriptions of all papers, final reports or examinations; and all substantive rules or statements of general applicability adopted by the agency. Rules may be challenged in federal court.

The federal courts have sole authority to review agency rules and actions to ensure they are legal under the substantive federal statute. An official citation to the Federal Register includes the volume, page number and year, for example: 43 Fed. Reg. 11,110 (1978). Final administrative rules are published first in the Federal Register and then in the Code of Federal Regulation; an example of an official citation to the Code is 40 C.F.R. pt. 260, which refers to title 40, part 260 of the Code of Federal Regulations.

Judicial Opinions
The United States is a common law country. Every U.S. state has a legal system based on the common law, except Louisiana (which relies on the French civil code). Common law has no statutory basis; judges establish common law by applying previous decisions (precedents) to present cases. Although typically affected by statutory authority, broad areas of the law, most notably relating to property, contracts, and torts are traditionally part of the common law. These areas of the law are mostly within the jurisdiction of the states, and thus state courts are the primary source of common law. Federal common law is relatively narrow in scope; primarily limited to clearly federal issues that have not been addressed by a statute.

Reported decisions of the U.S. Supreme Court and of most of the state appellate courts can be found in the official reporter of the respective courts. Those decided from at least 1887 to date can also be found in the National Reporter System, a system of unofficial reporters. Decisions of lower state courts are not published officially but can usually be found in unofficial reports. When referring to a case, a citation typically includes the name of the case and the volume and pages of the reporter, as well as the date for example, Kleppe v. New Mexico, 426 U.S. 529 (1976). Citations to federal courts of appeals are found in volumes abbreviated F., F.2d, or F.3d, and district courts are in volumes abbreviated F. Supp. The decisions of other specialized federal courts such as Claims of bankruptcy decisions are also reported.

The system for citing state cases is similar. A correct citation would be Wagen v. Ford Motor Co., 97 Wis. 2d 260, 294 N.W. 2d 437 (1980), meaning the case was decided in 1980, is found on page 260 of volume 97 of the second series of Wisconsin State Reporters (the official reporter), as well as page 437 of volume 294 of the second Northwestern set of the National Reporter System.

State Constitutions and Statutes
State constitutions are the supreme law within the state. State statutes must conform to the respective state's constitution. All state constitutions and legislation can be preempted by federal legislation or the federal Constitution. See Section 1.1.3: National-Subnational Relations. Municipal charters, ordinances, rules, and regulations apply only to local issues; they typically can be preempted by either state or federal law. Citation.

To ensure uniformity in citation styles for all law-related publications or writings, most citation to legal sources in the United States follows the Uniform System of Citation, also known as the Bluebook. The Bluebook is updated every few years by a consortium of law schools. Among other things, the Bluebook provides the abbreviations for all state and federal courts, statutory compilations, and administrative rules.

 Role of the Legislature in the Law-making Process

The U.S. Congress has exclusive authority to enact federal legislation. The process by which a proposed bill becomes a law can be very complex and take years.

Introduction of Bills
Bills may originate in either the House of Representatives or the Senate, except that all bills for raising revenue must originate in the House of Representatives. U.S. Const. art. I, sec. 7. Only Senators and Representatives (also known as Members of Congress) can introduce a bill in their respective chamber. When bills are introduced, they are given a bill number. The numbering system starts over with each session of Congress, and bill numbers run in chronological order according to when the bill is introduced. Bills in the House of Representatives are given the initial H.R. and Senate Bills are given the initial S. Thus, H.R. 1, would be the first bill introduced in a new session of Congress or the House of Representatives (a session of Congress lasts for two years).

Committee Consideration
After a bill is introduced, it is assigned to one or more committees in the chamber where it was introduced. A committee can amend, rewrite, recommend, or ignore the bill or report back to the full chamber with no recommendation. Committees typically also submit a report explaining their views of the bill when sending a bill to the full House or Senate.

Floor Debate and Vote
Once the bill has emerged from committee consideration, it moves to the "floor" of either the House of Representatives or the Senate (again depending on where the bill was introduced). The entire chamber debates and may amend the bill. It then takes an open vote on the bill. For noncontroversial votes, the chamber will take a voice vote, but if any legislator asks for a roll call, then each member's vote is made separately and publicly.

Passage in Both Chambers
If the bill passes the first chamber, it is sent to the other chamber where the process described above is repeated. If the bill is amended in the second chamber, it must be sent back to the first Chamber because both chambers must agree on the amendments. If the two chambers cannot immediately agree on how to pass identical legislation, the bill will be sent to a joint committee (comprised of both House of Representatives and Senate members), which will attempt to work out a compromise among the different versions of the bill. If the joint committee is successful, the bill will be returned to both chambers for a vote.

Overriding a Presidential Veto
Once an identical bill passes both the House and the Senate, it is sent to the President who can do the following: (1) sign it and thus make it a law; (2) do nothing and after 10 days, if Congress stays in session, it becomes law; (3) do nothing and if Congress adjourns within 10 days, it does not become law; or (4) reject the bill by vetoing it and the bill will not become law unless the veto is overridden by Congress. Congress may override the President's veto by approving the bill again with at least a two-thirds majority vote in both the House and the Senate. The bill then becomes a law despite the President's veto.

Public Access to Information
All floor debates and votes are published the following day in the Congressional Record. Legislators can review the Congressional Record before it is published to change or add a statement. Committee reports for major legislation are published separately by the Government Printing Office. In recent years, many committee hearings, floor debates and votes have been broadcast live through CSPAN (Cable Satellite Public Affairs Network), a cable television network that provides twenty-four hour coverage of public affairs.

State Legislatures
The state legislatures act in much the same way, although the process for enacting a bill within the legislatures is often more streamlined. Every state legislature, except Nebraska's, has two chambers. Most governors have veto power over state legislation, analogous to the veto power of the President.

Citizen Initiatives
Unlike the federal government, several states also allow for citizen initiatives. In some of these states, citizens can hold a direct vote on a specific proposed law directly. In other states, citizen initiatives may force the legislatures to vote on an issue. To get a specific initiative on the election ballot or on the legislature's docket typically requires that organizers collect a certain number of signatures of eligible voters.

 Role of the Executive in the Law-making Process

The U.S. Executive Branch is responsible for implementing most laws passed by the Congress. Agencies in the executive branch issue rules, make adjudications and provide other opinions and guidelines in an effort to implement the laws. The Administrative Procedure Act (APA) governs these activities.

The President also has the power to issue executive orders. Executive orders are Presidential directives governing actions by other federal officials and agencies. The President's authority over the executive branch is limited only by the Constitution and federal statutes.