How does the law making process check the power of the legislative and executive branches of government?

Answer 1

Article III is the subdivision of the U.S. Constitution which prescribes judicial power of the U.S. government.

U.S. Const., Art. III, Sec. 1:

"The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office."

Art. III, Sec. 1 prescribes the Supreme Court of the United States, and the Congress established soon thereafter the federal courts, beginning with the Judiciary Act of 1789.

U.S. Const., Art III, Sec 2:

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;

-to all Cases affecting Ambassadors, other public Ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Citizens of another State;-between Citizens of different States;

-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.

In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

Clause 1 prescribes that the judicial power extends to cases arising under the Constitution and as to the laws of the United States. This is federal question jurisdiction.

Judicial review itself derives from necessary implication in the Constitution, as set forth in Article VI:

"...all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution..."

The Court, in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), established the most basic doctrine of judicial review based on this:

"The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right."

Therefore, if the U.S. Congress enacts laws that the Supreme Court of the United States finds unconstitutional, the Court has the authority to strike these down, and render them a nullity. Since, by Art. III, Sec. 1, "The judicial Power shall extend to all Cases, in Law and Equity..." the Court is limited to reviewing actual controversy between parties in reviewing for constitutionality.

Thus, the entire body of American Constitutional common law derives from the doctrine of judicial review, in this form.

U.S. Const., Art. II prescribes the duties and responsibilities of the President.

Article II, Section 3:

"He [the President] shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States."

Mississippi v. Johnson, 71 U.S. 475 (1867) established specific attributes of Presidential power. Deriving from Marbury v. Madison, the Court described any one particular exercise of Presidential power as having one of two characteristics: "ministerial or discretionary". Ministerial actions are required under the law, while discretionary actions are not, but instead are the President acting in an "executive and political capacity". When the President is acting in such a capacity, the President cannot be sued to force discretionary actions, because to act is within Presidential discretion.

Later Constitutional cases have defined the nuances of Presidential power under the Constitution.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) proscribes executive intrusion upon Constitutional areas of legislative authority, and has formed the basis for the Constitutional doctrine that executive orders must find their basis in Acts of Congress or the Constitution. The majority opinion, written by Justice Black, held, inter alia:

"The President's power, if any, to issue [an] order must stem either from an act of Congress or from the Constitution itself...."

Youngstown remains good law, and was cited by the Court as recently as Hamdan v. Rumsfeld, 548 U.S. 557 (2006).