Lesson 2 The Three Branches of Government ESSENTIAL QUESTION How does the U.S. Constitution structure government and divide power between the national and state governments? Reading HELPDESK Academic Vocabulary contrast the difference between things that are of similar natures goal aim, purpose Content Vocabulary ratify to approve enumerated powers a list of items, found in Article I, Section 8 of the Constitution, that set forth the authoritative capacity of Congress elastic clause clause in Article I, Section 8 of the Constitution that gives Congress the right to make all laws which shall be necessary and proper to carry out the powers expressed in the other clauses of Article I jurisdiction the limits or territory within which authority may be exercised judicial review the power of the Supreme Court to declare laws and actions of local, state, or national governments unconstitutional TAKING NOTES: Key Ideas and Details SPECIFYING Describe the powers of the three branches of government. Legislative Branch Executive Branch Judicial Branch 1
ESSENTIAL QUESTION How does the U.S. Constitution structure government and divide power between the national and state governments? In 1887 British historian Lord Acton wrote, All power tends to corrupt, and absolute power corrupts absolutely. One hundred years earlier, American Founder James Madison wrote in The Federalist No. 51: If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. a. What is your opinion of Lord Acton s assessment of power? Do you agree or disagree? b. Discuss examples of famous people and people you know who have used their power in ways that support your point of view. c. What do you think Madison meant by if men were angels, no government would be necessary? d. Using ideas from Acton and Madison, create a short speech, poster, presentation, or script that shows why our nation must be governed under a set of rules. The National Government Guiding Question What is the structure of the national government? In 1787, after much conflict and gradual agreements, the Constitution was drafted. Before it could become law it had to be ratified, or approved, by nine of the thirteen states. Supporters of the draft Constitution had to convince others that the government it created was not too strong. James Madison, Alexander Hamilton, and John Jay gained support for the Constitution by publishing essays called The Federalist Papers. One of their most persuasive arguments was that the Constitution balanced power between the national government and the states. These essays also explained that the Constitution divided government powers between three separate branches. The Constitution created the government s structure and functions to make it impossible for one person or a small group to have absolute power. The Constitution created three branches of the national government. The first is the legislative branch, or Congress. The second is the executive branch, which includes the president and various departments and agencies. The third is the judicial branch, or federal courts. At the Constitutional Convention, the Founders debated the exact features, roles, and responsibilities of the three branches. In order to create a limited government, the Founders gave different powers to each branch. The Founders also gave each branch the ability to check the power of the other branches. Copyright McGraw-Hill Education 2
Analyzing Why do you think having three separate branches of government was a persuasive argument for ratifying the Constitution? Legislative Branch Guiding Question How is the U.S. Congress structured and what are its powers? The legislature is responsible for passing laws. It is divided into two houses: the House of Representatives and the Senate. The House is the voice of the people. Citizens elect representatives directly by popular vote. Each state s population determines the number of representatives the state has. Unlike the House, the Senate has the same number of representatives from each state no matter what the population is. At first, each state legislature elected its senators. In 1913 the Seventeenth Amendment was ratified. This amendment established the direct election of senators by popular vote. The amendment increased the power of the people in this way. But some have argued that it also gave the federal government more power while taking it away from the states. The Founders knew that the legislative branch would be very important. They also feared that it might abuse its power, so they gave Congress limited and expressed powers, or powers directly stated in the Constitution. Enumerated and Expressed Powers Most of the powers of Congress are listed in Article 1, Section 8, which explains what kinds of laws Congress can make. These are called enumerated powers, because the Constitution lists them by number, 1 through 18. These powers include economic matters, such as the powers to levy taxes, borrow money, coin money, punish counterfeiting, and regulate commerce. Congress also has powers for national defense, including the power to declare war, raise and support armed forces, and organize the militia. Congress is also given the power to naturalize citizens and establish post offices and courts. The final enumerated power says that Congress has the authority to make laws that are necessary and proper to carry out its duties. This clause is sometimes called the elastic clause, because it lets Congress stretch its powers to manage situations that the Founders could not expect. The meaning of necessary and proper quickly became a subject that caused many arguments. How far could Congress stretch its powers? The Supreme Court examined this question in 1819 in the case of McCulloch v. Maryland. This case was about Congress s power to create a national bank. The Supreme Court determined that the elastic clause allowed Congress to create a national bank, even though the Constitution did not clearly state that power. Because Congress had the power to create the bank, Maryland s taxing of the bank s branches was unconstitutional. 3
Since McCulloch v. Maryland, Congress has used its power under the elastic clause in many ways. For example, Congress may allocate money to test a missile-defense system. The Constitution does not mention this use of money, but it is necessary and proper for Congress to carry out its duty to raise and support Armies. Explaining What are the enumerated powers of Congress? Executive Branch Guiding Question How is the executive branch structured and what are its powers? When King George ruled, American colonists disliked the way he used his powers. As a result, after gaining independence, the new nation gave nearly all power to states. It did not even allow for an independent executive branch at the national level. However, it soon became clear that the government structure under the Articles of Confederation was not working. The country needed a national government with an executive function, but the nation s leaders wanted to make sure the executive s powers were limited. Role of the Executive Branch The president is the head of the executive branch. The executive branch also includes numerous departments. They carry out or enforce the laws passed by Congress. Some of these include the Department of Justice, the Department of Education, and the Department of the Treasury. The leaders of these departments report to the president and advise him or her about their areas of responsibility. The Constitution does not state how many departments there should be. Currently there are 15 executive departments. The executive branch also includes many federal agencies, commissions, corporations, and boards that carry out specific duties. These include the Consumer Product Safety Commission, the Environmental Protection Agency (EPA), the National Aeronautics and Space Administration (NASA), and the Corporation for National and Community Service. Most of the specific powers of the president are defined in Article II, Sections 2 and 3. The Constitution says the president has the power to grant pardons, make treaties, and appoint ambassadors, Supreme Court justices, and other government officials. A president can also fire officials in the executive branch, make agreements with foreign nations, or take emergency actions to save the nation. The Founders understood the need for a strong army to protect the United States. They also knew that an unlimited military could be used to take control of the government and threaten our democracy. The Founders solved this problem in two ways. First, they put the military under the control of the civilian authority. Second, they divided control of the military between different branches of the 4 Copyright McGraw-Hill Education
government. The Constitution names the president commander in chief of the military, but only Congress has the power to declare war and to provide money for the military. Identifying What powers does the Constitution give to the president? Judicial Branch Guiding Question How is the judiciary structured and what are its powers? Article III of the Constitution establishes the federal court system. It names the Supreme Court and gives Congress the authority to establish lower courts. The Constitution says that federal judges shall hold office for life unless they commit a crime. When the Constitution was adopted, each state already had its own court system. These courts heard cases and disagreements about state laws or the state s constitution. The U.S. Constitution created the federal court system, which hears cases about the U.S. Constitution and federal law, foreign treaties, international law, and bankruptcies. In this two-court system, each court has the authority to hear certain kinds of cases. This is known as the court s jurisdiction. Judicial Review Much of the judicial branch s power comes from the courts ability to interpret the Constitution and overturn laws that violate the Constitution. This process is called judicial review. The Constitution does not specifically mention judicial review. It simply says that judicial power shall extend to all cases related to the Constitution. The Federalist No. 78 discusses the power of judicial review. It says that judges must think of the Constitution as a fundamental law. It also says that only judges can interpret the meaning of the Constitution and the meaning of laws passed by Congress. The Supreme Court first used judicial review in 1803, in its decision in the case of Marbury v. Madison. This case was about the Judiciary Act of 1789. The Court decided that this law was unconstitutional because it gave the Court more power than the Constitution allowed. Chief Justice John Marshall wrote the opinion for a unanimous court. It remains one of the most important decisions in the history of the Supreme Court. By establishing the power of judicial review, the judicial branch became equal to the other two branches of government. 5
Determining Importance Why is Marbury v. Madison considered one of the most important rulings of the Supreme Court? American Government: Then and Now Guiding Question How has the work of the three branches of government changed over time? All three branches of government have changed greatly over the past 200 years. Early presidents would hardly recognize the office today. President Washington had so little to do on some days that he advertised in the newspaper the times when he would entertain visitors. He held tea parties for anyone who was properly dressed on Friday evenings, and he had only a few advisers and staff. By contrast, modern presidents schedules are organized minute by minute. They have a White House staff numbering in the hundreds, a military force of millions, and thousands of executive branch employees. A fleet of airplanes and helicopters is always ready to take the president and close advisers to any part of the nation or the world. In the first Congress, the Senate introduced only 24 bills, and the House introduced only 143. For many years, attending legislative sessions was only a part-time job. Members had other jobs or were wealthy enough not to work. Congress did not meet in continuous session until the middle of the twentieth century. Today members of Congress live and work almost year-round in Washington, D.C., and about 10,000 bills are introduced annually. Supreme Court justices also had much less to do in the early days of the country. For the first three years, the Court heard almost no cases. Justices were assigned to ride circuit. When the Supreme Court was not in session, they traveled by horseback to hear appeals in different district courts. Riding circuit was so tiring that the first chief justice refused to serve again. It was not until 1891 that Congress created the modern federal court system. Analyzing Based on the preceding description, which of the three branches do you think has changed the most? Why? Copyright McGraw-Hill Education 6
Relations Among the Branches Guiding Question How do the three branches share, check, and balance power? By creating three branches of government and dividing power between them, the Constitution makes certain that the branches would need to cooperate to take important actions. The division of power and checks and balances also create conflict among the branches as they limit one another. Sharing Power Many of the executive powers require cooperation with Congress. This need for cooperation prevents the president from becoming too powerful. For example, the president (and the Secretary of State, the head of the State Department) has the power to develop treaties with foreign countries. However, the Senate must also approve treaties before they become law. In a similar way, the power of Congress is limited by the need for presidential approval. Congress passes laws, but usually the president must sign those laws. If the president vetoes a bill, Congress needs a two-thirds majority to override it. When a bill becomes law, the executive branch must follow the law and enforce it. The executive branch often makes plans for the laws that Congress considers. Voters elect a president based on what they believe he or she will do in office. The support of voters gives the president power. Because of this, the president often proposes to Congress an agenda for laws and works with legislators to have the laws passed. Congress must establish funds for the government to function, but the executive branch spends the money. Checks and Balances Each branch can check, or control, the power of the other two. The president can veto bills passed by Congress, but Congress can override the veto and impeach the president or federal judges. The courts can determine what federal laws mean and overturn them if they are unconstitutional. Congress can respond to a Supreme Court ruling by passing a new law that clarifies meaning or by proposing an amendment to the Constitution. The courts can also rule actions of the executive branch unconstitutional, but they often need the president to enforce their rulings. Exploring the Essential Question Read the government actions below. For each, describe how the three branches are involved. a. A Supreme Court justice retires and a new justice is needed to replace her. b. The president is caught stealing money from the treasury. c. A foreign country attacks a U.S. military base overseas and Americans want to respond immediately and with force. 7
The ability of the branches to limit one another sometimes creates conflict. For example, Congress s responsibility to watch how the executive branch enforces the laws may cause conflict. Sometimes the two branches quarrel over the way the president interprets the purpose of a law Congress has passed. When this happens, the federal courts may need to interpret what Congress meant. Presidents have sometimes accused Congress of trying to take some of the executive powers to lead and protect the nation. Occasionally, Congress has been accused of giving away too much power to the president. Political parties have also been a source of conflict. If one political party controls the executive office and a different party controls the legislature, cooperation will be difficult. Each party tends to have different goals, different voters to please, and different ideas about government. At best, different political parties in each branch can make compromises. At worst, there is a political traffic jam, and all progress stops. Both the executive and legislative branches sometimes have conflicts with the judicial branch. The Constitution allows Congress to limit the Supreme Court s jurisdiction. Congress rarely uses that power because it would challenge the independence of the judicial branch. When the Supreme Court ruled in Baker v. Carr (1964) that state legislatures had to use population numbers to establish voting areas, some members of Congress were angry. The House passed a bill to remove federal courts jurisdiction in such matters. Eventually the Senate prevented the bill from passing. A president has rarely refused to enforce a Supreme Court decision. In 1832 the Cherokee in Georgia were living on land that had been guaranteed to them by treaty. The state of Georgia wanted this land and tried to put the Cherokee under state law. A non-native American missionary who was arrested for living in the Cherokee nation without a license sued. In Worcester v. Georgia, the Supreme Court ruled in favor of the Cherokee. Chief Justice John Marshall wrote the Court s decision. President Andrew Jackson reacted angrily. It is commonly believed that he said that John Marshall had given his opinion but that Marshall could not enforce it. This conflict shows the kinds of power the two branches have. The judiciary has great authority, but the executive commands the military. The Georgia Cherokees were forced to move in 1838 to what is now Oklahoma. The journey became known as the Trail of Tears for the thousands of Cherokee who died of cold, hunger, and disease on the journey. Analyzing Why do the three branches sometimes come into conflict with one another? Copyright McGraw-Hill Education 8