• Regulations cannot conflict with the Constitution or the underlying statute that serves as the foundation for the regulation. The executive branch of government can do no more in implementing a program than the legislative branch authorizes it to do.  Nor can the executive branch ignore the activities that the legislative branch has mandated. The following list illustrates how the North Dakota legislature mandated some expectations, while leaving other directions to the discretion of the executive agency.

• Example -- N.D.C.C. chapter 23-33 GROUND WATER PROTECTION; note the legislature imposes certain requirements (e.g., "shall" in §23-33-02) but grants the department discretion on other points (e.g., "may" in §23-33-04).
  • 23-33-01. Degradation prevention program - Maintenance of waters. This chapter establishes a degradation prevention program for the purpose of protecting ground water resources ...
  • 23-33-02. Administration of chapter. The state department of health shall administer this chapter.
  • 23-33-03. Education program. The department, the commissioner, and the North Dakota state university extension service and North Dakota agricultural experiment station shall cooperate with other state and federal agencies on the development of a ground water protection education program.
  • 23-33-04. Chemical use data and confidentiality requirement. The department may require chemical use data from product registrants ...
  • 23-33-05. Ground water standards. The department shall establish standards for compounds in ground water ...
  • 23-33-06. Ground water quality monitoring. The department shall conduct ground water quality monitoring activities ...
  • 23-33-08. Access for ground water monitoring. The department may request landowners or operators to allow access for monitoring of ground water and of soils ...
  • 23-33-09. Pollution prevention criteria. The commissioner, in cooperation with the department, North Dakota state university extension service, and the North Dakota agricultural experiment station, may develop pollution prevention criteria for areas utilized for mixing and storing of agricultural chemicals at the retail and end use levels.
  • 23-33-10. Wellhead protection program. The department in cooperation with the state engineer and state geologist shall assist in implementing a public water supply wellhead protection program ...
  • 23-33-11. Rules. The department, with the approval of the commissioner and the state engineer, shall adopt rules necessary for implementation of this chapter.

• For a brief description of executive orders, see Relyea Harold. Presidential Directives:  Background and Overview.  CRS Report for Congress, Congressional Research Service, The Library of Congress, Updated April 23, 2007 at http://www.fas.org/irp/crs/98-611.pdf

Judicial Branch

• The judicial branch of government is the court system. It is comprised of trial courts (to determine the facts) and appellate courts (to interpret or clarify the Constitution, statutes, regulations and common law).
  • For example, North Dakota Constitution, Article VI, sections 2 and 8 state "The supreme court shall be the highest court of the state. It shall have appellate jurisdiction . . ." and "The district court shall have original jurisdiction of all causes ..."

• The court system is our mechanism for resolving disputes (it is better than using force or resorting to violence to resolve disputes).

• "Litigation is civilized war." Doug Nill, attorney and '81 NDSU graduate, BS Ag Economics, quoted in AGWEEK , May 10, 2004, page 30.

• Types of Court Cases

• Criminal -- state charges a person with a crime; penalty will be either imprisonment or a fine. This course will NOT address criminal law.
  • "A criminal action is one prosecuted by the state as a party against a person charged with a public offense for the punishment thereof." N.D.C.C. §32-01-05 .
• Civil -- Dispute between two parties (e.g., dispute a buyer and a seller, dispute between a landowner and a tenant, dispute between two neighbors); not a crime. Solution generally will be a court order to compensate the injured party and/or to stop an illegal act .
  • "As a general rule compensation is the relief or remedy provided by the law of this state for the violation of private rights and the means of securing their observance. Specific and preventive relief may be given in no cases other than those specified in this title." N.D.C.C. §32-01-11.
  • In a civil lawsuit, the party who files the lawsuit (also stated as "commences the action" or "brings the action") is the plaintiff; that is, the party who is complaining that they have been injured or treated wrong. The party being sued is the defendant; that is, the person or persons who have to defend themselves against the accusations being made by the plaintiff.
  • A court case is sometimes referred to as litigation, and the plaintiff and defendant are called the litigants or litigating parties.
  • The court cases studied in this course are primarily civil cases; this course devotes very little attention to criminal cases/criminal law.
  • Courts also decide whether there is a conflict among a regulation, statute, and Constitution; if there is a conflict, the Constitution prevails and the conflicting portion of the statute or regulations will not be enforced.
    • Excerpts from http://www.epa.gov/npdes/regulations/cafo_revisedrule.pdf
    • "Congress passed the Federal Water Pollution Control Act (1972), also known as the Clean Water Act (CWA), to ‘‘restore and maintain the chemical, physical, and biological integrity of the nation’s waters’’ (33 U.S.C. 1251(a)). Among the core provisions, the CWA establishes the NPDES permit program to authorize and regulate the discharge of pollutants from point sources to waters of the U.S. 33 U.S.C. 1342.
    • "The CAFO industry organizations argued that the EPA exceeded its statutory authority by requiring all CAFOs to either apply for NPDES permits or demonstrate that they have no potential to discharge. The court agreed with the CAFO industry petitioners on this issue and therefore vacated the ‘‘duty to apply’’ provision of the 2003 CAFO rule.
    • "The court found that the duty to apply, which the Agency had based on a presumption that most CAFOs have at least a potential to discharge, was invalid, because the CWA subjects only actual discharges to permitting requirements rather than potential discharges. The court acknowledged EPA’s policy considerations for seeking to impose a duty to apply but found that the Agency lacked statutory authority to do so."

• Excerpts from http://www.fws.gov/news/NewsReleases/showNews.cfm?newsId=4D021B4F-DAD8-E191-9C0E0BE9C9D8E881
• "The U.S. Federal District Court in Missoula, Montana, issued a preliminary injunction on Friday, July 18, 2008, that immediately reinstated the Endangered Species Act protections for wolves in the northern Rocky Mountains."

• Civil lawsuits are initiated in a trial court. The task is for the jury (or in some cases, the judge) to listen to the evidence presented by the litigants, decide what happened, and determine a solution to the dispute. The judge oversees the trial process to assure all litigants are given an opportunity to present their information and to assure the jury appropriately applies the law to the facts of the case.

• An appellate court reviews the action of the trial court; a litigant will initiate an appeal if the litigant feels the trial judge made a mistake in overseeing the trial process or in interpreting and applying the law. The appellate court does not determine the facts of the case (that has already been done by the trial court); the appellate court focuses on whether the law was correctly interpreted and applied during the trial process.
• Appellate court decisions/opinins serve as precedence for later disputes with similar facts and questions; these decisions are referred to as the common law. These decisions are often clarifications or interpretations of the law, including the Constitution, a statute, a regulation, a previous court decision, or a combination of these.
• Although appellate court decisions are primarily intended to interpret current law, there are times when court decisions serve as an indicator of society's concept of right and wrong, especially if the legislature has not clearly stated a policy or direction. Thus judicial decisions can influence legislators (policy).

Summary Judgment

• Reading a court opinion can sometimes be confusing because the justices have to address several legal issues; this is especially difficult if the reader is interested in only one of the legal concepts the court addressed in making its decision. Therefore, as you read a court case, there will be times when much of the opinion may not be of interest to you. Focus on the part of the decision that applies to your question but do not overlook the remainder of the opinion to such an extent that you are unable to understand the overall situation.
• In many cases, the appellate court is asked to review the trial court's ruling on a motion for summary judgment.

"Summary judgment is a procedure for the prompt and expeditious disposition of a controversy without trial if either party is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving factual disputes would not alter the result." Steiner v. Ford Motor Co., 2000 ND 31, 606 N.W.2d 881.

If the judge of the trial court concludes, based on the information presented by the litigating parties, that one party will prevail and there is no reason to continue the trial on that point, the judge can issue a summary judgment on that point. It is not uncommon then for the party who lost on summary judgment at the trial to appeal to an appellate court to argue that the trial judge made an error and the trial should have been completed. It is this appeal of the summary judgment that is then being explained in the decision of the appellate court.

Although the question of granting a summary judgment may appear in many of the court opinions we will read, you will often focus on the part of the opinion that discusses the legal concept we are studying at the time.

OPINION

Please allow me to offer an opinion. Our nation, and to some extent the world, focuses much attention on the President and offer statements about what the President can do. Although this attention is warranted, it also can be misconstrued.

As explained in the previous sections, the President can do no more than Congress authorizes and the President must do as Congress mandates.

• The President can lobby Congress, just as you and I can (but obviously, the President will most likely receive more consideration than suggestions by you or me).
• The President can veto legislation that Congress has passed, but Congress can override a veto. For example, the Farm Bill in 2008 was enacted twice, vetoed by President Bush twice, and the vetoes were overridden by Congress twice. Guess what? Congress still prevails.
• The President can direct agencies of the executive branch to exercise their discretion and not fully implement Congressional mandates. This is based on the assumption that the language of the statute had room for interpretation. But that is where the judicial branch assumes a role. An individual, even you or me, can sue the agency and argue that the agency is not abiding by the law by not fulfilling the Congressional mandate. If the court agrees, the executive agency will need to change its practices. Guess what? The president does not always prevail.
• Congress also can respond to action or inaction of the executive branch by enacting another statute to clarify what Congress intended to accomplished with the first statute that the executive branch is not administering. Again, the executive branch (ie., the President) is limited as to what it can do.

President Nixon (and other presidents) occasionally think they can do more than the law authorizes them to do. President Nixon did not finish his term in office. Other presidents were effectively rendered powerless because Congress would not pay any attention to the presidents' suggestions. Guess what? Congress prevails.

Bottom line -- despite all the international attention paid to the office of the U.S. President, NEVER forget that it is Congress that sets the direction or policy. The media sometimes misleads us by giving all the credit or blame to the president. We need to understand the structure of the U.S. government and to follow current events close enough to understand who is doing what and who ultimately prevails. A presidential suggestion will only become law if a majority of Congress agrees. Without Congress' approval, no one's suggestions (including the president's suggestions) will ever become law.

Summary of Key Points

• The purpose of this page was to overview the U.S. legal system and to emphasize the type of law that is created by each branch of government (legislative branch enacts statutes, the executive branch promulgates regulations, and appellate courts within the judicial branch render legal opinions that collectively form the common law).
• A second emphasis was on describing the relationship among the three branches of goverment -- that is, the legislative branch debates and establishes policy, the executive branch executes or implements the policies set forth by the legislative branch, and the judicial branch interprets the Constitution, statutes, and regulations.
  • The word "law" encompasses statutes, regulations, and the common law.  HINT -- clarify your communication by stating whether you are describing a statute, a regulation or a court decision, rather than generally referring to "the law".
• A third point in this discussion is that the Constitution specifies what government is authorized to do and what government is prohibited from doing.
• Perhaps the most confusing parts of these materials are 1) the relationship among the Constitution, statutes, regulations and court decisions (because your earlier studies of US government may not have emphasized that point) and 2) the process by which government agencies in the executive branch promulgates regulations.
• This course focuses on concepts that generally arise as civil matters or civil court cases; criminal law is NOT the focus of this course.

Also see Overview of U.S. Government

 

The next page introduces how to research law.

Last updated August 25, 2010