2.2 The executive power carries out laws

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1 Mr.Jarupot Kamklai Judge of the Phra-khanong Provincial Court Chicago-Kent College of Law #7 The basic Principle of the Constitution of the United States and Judicial Review After the thirteen colonies, that had been governed by Great Britain, succeeded in securing their independence. On July 4, 1776, Declaration of Independence, they faced the question of how a newly independent United State should be governed. After debated, the newly independent state adopted the Article of confederation, which was more of a treaty than a real government framework, and had very limited power over individual states. Until 1787, delegates from the states gathered in Philadelphia, Pennsylvania to form the United States Constitution, which would create a strong government Federal Government. Finally, it was ratified in The Constitution of the United States has basic principle as fellow: 1. Popular Sovereignty: The people are source of government power. 2. Limited Government: The government has only the powers that constitution gives to it. 2.1 The legislative power enacts laws 2.2 The executive power carries out laws 2.3 The judicial power interprets the meaning of laws 3. Separation of Power: The Constitute of the United States divides the federal government into three branches to ensure that no any branch gains too much power.

2 However, in present day, the president seems to have too much power than any other branches. He can control the congress and executive branch and lead the country because he has veto power over legislation, can remove all subordinates in executive branch. In addition, a popular president who shares the party of the majority of the congress will be more successful at influencing congress. 4. Checks and Balance: Each branch holds some control over the other branches. 4.1 The legislative branch is given the power to make the laws. However, it has the power to check over the executive branch by overriding president veto with two-thirds votes, having the power over the purse strings to actually fund any executive action, removing the president through impeachment and approving treaties, presidential appointment. It also has the power to check over the judicial branch by creating lower courts, removing judges through impeachment and approving appoints of judges. 4.2 The executive branch is given the power to carry out the law and has the power to check over the legislative branch through veto power, an ability to call special sessions of congress. Moreover, it has the power to check over the judicial branch by appointing supreme courts and federal judges. 4.3 The judicial branch is given the power to interpret the law and apply the law to the case. This branch also has the power to check over both the executive branch and the legislative branch. The court can judge executive action and legislative act to be unconstitutional through the power of judicial review.

3 5. Federalism: It means that there are two levels of government, federal and state. The U.S. constitution grants the federal government with power over issue of national concern, while the state governments, generally, have jurisdiction over issues of domestic concerns. The federal government can enact law, which enumerated by constitution, governing the entire country. For example, Article I, section 8 of the constitution grants congress the power to lay and collect taxes, to regulate commerce among the several states. Therefore, the federal government can regulate interstate commerce pursuant to the commerce clause of constitution but has no power to regulate commerce that occurs only within a single state. This sometime lead to concurrent power to make law and adjudicate disputes. If state and federal law conflicts, the doctrine of preemption is applied. This doctrine bases on Article VI section 2 the Supremacy clause. This constitution, law of the united states shall be the supreme law of the land and the judges in every state shall be bound thereby However, the scope of preemption must be implied only if <1> there is a direct conflict between state and federal law. <2> Congress has expressed an intent to occupy an entire field of law even though the federal law does not conflict. In conclusion, upon a showing of conflict, the federal law preempts the conflicting state law or state law will be displaced by federal law. 6. Individual Right: Bill of Right The constitution contained few liberty protections, so the first ten amendments constitute the Bill of Rights in At first, it applied only to the federal government. After civil war, there are largely changed with the ratification of fourteenth amendment. Under the addition of the amendment, there are many individual rights protecting devices included in constitution. One of the most important of those devices is Due Process of Law and Equal Protection of Law As stated above, the judicial branch is given the power to interpret the law

4 and also has the power to check over both the executive branch and the legislative branch by using these two devices. 6.1 Due Process of Law The Supreme Court has interpreted that the due process clauses have two components Procedural Due Process Government acting Procedural due process consists of the restrictions that the law places on the legal process. It aims to protect individuals from the coercive power of government and its officers. The government can deprive a person life, liberty or property only do provide due process of law. There is two step processes under the procedural due process. First, Interests at stake? One must determine whether there is a life, liberty, or property interest at stake? Whether the government s action had changed your legal status? If it has, the state action changed the people status, There is a constitutional liberty interest at stake. If it hasn t, there is no such interest at stake. Second, what process is due? Assuming there is a life, liberty, or property interest at stake, the next question is what process is due a person before they may be deprived of that interest? Mathews V Eldrige : In this case, George Eldrige, who had originally been deemed disabled, was informed by letter that his disability status was ending and his benefits would be terminated. Social Security Administration Procedures provide for ample notification and an evidentiary hearing before a final was made, but Eldrige s benefits were cut off until that hearing could take place. Eldrige challenged the termination of his benefits without such hearing. The question is did the lack of an evidentiary hearing prior to the termination of disability benefits violate the due process clause of the Fifth Amendment? The court held that the initial termination of Eldrige s benefits without a hearing did not violate due process. The

5 court noted that due process was flexible and called for such procedural protections as the particular situation demands. The court found that there were numerous safeguards to prevent errors in making decisions to terminate disability benefit and argued that at some point the benefit or an additional safeguard to the individual affected by the administrative action and to society, in terms of increased assurance the action is just, must be outweighed by the cost Substantive Due Process Law itself Substantive Due Process aims to protect individuals against enactments which exceed the limits of governmental authority. It means that the determination of whether or not the law itself exceeds government authority. There is a danger inherent in a substantive due process review. If a court substitute its own judgment for that of a legislature by saying that the government s reasons of acting are not good enough. The non-elected courts will be substituting their judgment for that of political branches. Courts are aware of this danger and have developed a system of tiered review. There are two tiers of review under substantive due process. <1> Rational basic review Under rational basic review, a given law is presumed to be constitutional and will be up hold so long as <a> the government has a legitimate interest and, <b> the means the government has used in the law in question are rationally related to serving this interest.

6 Most laws will be upheld under the rational basic standard of review. But it is impossible for law to fail rational basic review. This can occur in one of two ways. First, the state s interest may not be legitimate. For example, the Supreme Court has held that it is not a legitimate interest for the government to impose its own moral code on citizens. This was one of the reasons the Supreme Court struck down laws against sodomy between consenting adults gay men in case call Lawrence v Texas. It is also not a legitimate interest for the state to have a bare desire to harm an identifiable group. In Lawrence v Texas, the court hold that a statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violate the due process clause. Liberty protects the person from unwarranted government intrusions. Freedom extends beyond spatial bonds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The defendant are adults and their conduct was in private and consensual; therefore, they are entitle to respect for their private life and their right to liberty under the due process clause give them the full right to engage in their conduct without intervention of the government. The court ultimately applies a rational basic review, stating that the Texas statute in question further no legitimate state interest which can justify an intrusion into a personal and private life of an individual. Second, a law may fail rational basic review if there is no rational connection between the government s purpose and what it is done; however, few laws fail this prong of this analysis. <2> Strict scrutiny review The second tire of review called strict scrutiny. Under this review, the law in question is presumed to be unconstitutional. It will be upheld only if the government can demonstrate that <a> It has a compelling interest and

7 <b> The means the government has used in the law are narrowly tailored to serve that compelling interest. If the right is deemed to be fundamental, strict scrutiny is the appropriate test. If the right is not fundamental, rational basic review is utilized. Determining whether a right fundamental for substantive due process is a difficult task, fundamental right can shift upon period of time, economic liberty. For example, today economic rights are not considered fundamental. Fundamental Rights have been reserved for more personal and intimate matter such right include 1. The right of person- to be married or unmarried to possess and use contraceptive devices 2. The right of a woman to obtain an abortion 3. The right to participate in certain familial relationship - controlling a child s upbringing - living with certain of your extended family 6.2 Equal Protection of Law Second devices to protect individual right is Equal Protection of law. Substantive due process analysis applies when a state law affects fundamental right. Unlike, in Equal protection analysis, the law does not classify among people, the law affects all people rather than a specification of people. Equal Protection under Amendment fourteenth nor state deny any person within its jurisdiction the Equal Protection of the Laws. Like substantive due

8 process, applies to state law. There is no parallel provision applicable to the federal government, but the Supreme Court has held that the Fifth Amendment s Due process clause contains an Equal Protection component. An Equal Protection analysis is applied when people similarly situated are treated differently such as classification or segregation. The standard of reviews under the Equal Protection clause are Rational basic test It is the same rational basic review applied in substantive. A law will be upheld as a constitutional so long as the government <a> has a legitimate interest for its actions and, <b> what it has done is rationally related to serving this interest As with substantive due process review, most laws evaluated under the rational basic standard of review will be upheld. The exception to this conclusion usually is when the government acts with a bare desire to harm a particular group. For example, only a person with law degree may be a lawyer. It is perfectly okay under equal protection for the government to say that, but it is inappropriate for the government to say that only a while person maybe a lawyer Strict Scrutiny This is the highest level of scrutiny and is the same as the strict scrutiny approach under substantive due process. The government must show that: <a> It is compelling interest in acting and <b> What it has done is narrowly tailored to serving that interest

9 Strict scrutiny applies to law that classify on basic of race, national origin. In 1896, Plessy v Ferguson case, Plessy attempted to sit in all-white railroad car, he was arrested for violating an 1890 Louisana statute that provided for segregated separate but equal railroad accommodations. Those using facilities not designated for their race were criminally liable under statute. The court held that the state can constitutionally enact legislation requiring person of different races to use separate but equal. In 1954, Brown v Board of education, several black children through their legal representatives sought admission to public schools that required or permitted segregation based on race. The plaintiff alleged that segregation was unconstitutional under the Equal Protection Clause of fourteenth amendment. The court held that the race-based segregation of children into separate but equal public schools violates the Equal Protection Clause of fourteenth amendment and is unconstitutional. The test would clearly apply when state government intentionally segregated public education prior to the supreme court s decision in Brown v Board of education. The court is unwilling to delve into the reasons the government act and, instead, realizes on the fact of classification itself. In 1967, the state of Virginia enacts law making it a felony for white person to intermarry with black person. Supreme Court of Virginia held that the statues served the legitimate state purpose of preserving the racial integrity of citizen and its miscegenation statute punished both white and black participants in an interracial marriage equally, they cannot be said to constitute invidious discrimination based on race. However, Supreme Court of US held that the mere fact that a statue is one equal application does not mean that the statue is exempt from strict scrutiny review. The Equal protection clause of the United States

10 constitution prohibits classifications drawn by any statute that constitutes an invidious discrimination. <6.2.3> Intermediate Scrutiny There is a level of scrutiny between rational basic review and strict scrutiny called intermediate scrutiny. The law at issue will be deemed unconstitutional unless the government can show that <a>it has an important interest and <b>what it has done is substantially related to serving that interest. #############################