Where do laws come from?

A short primer on the branches of government

I didn’t learn much about how government works at various levels until I was several years into being a lawyer. We are strategically withheld information about how laws operate on our lives to prevent us from advocating for change and maintaining agency over our bodies and our survival. I wrote the below just to share a quick primer for those who are interested on the different branches of government and how they are separately empowered to make the rules that impact our lives and our ability to survive.

I. Big picture structure of government

There are three branches of government at the federal level and in each state.

1. Executive — runs the administrative/enforcement side of government and includes the leader of the government.

a. On the federal side this is the President and all the executive agencies and staff (i.e., Department of Education (ED), Department of Health and Human Services (HHS), Department of Housing and Urban Development (HUD), etc.).

b. In the states this is the Governor and then the state level agencies (i.e, Department of Motor Vehicles, State Department of Health, etc).

2. Legislative — passes laws.

a. On the federal side we have Congress, which is made up of the Senate (2 senators per state) and the House (435 apportioned by population). House members are elected to two year terms and senators to six year terms. The leader of the majority party (party with more seats) in the House is called the Speaker of the House and in the Senate the majority leader is called the Senate President.

b. In the states there is a legislative body in each state, which usually includes a state senate and state representative body comparable to the federal House of Representatives (where there are two chambers it is called bicameral).

3. Judicial — courts interpret laws (in theory).

a. On the federal side there are:

i. 94 federal district courts. There is at least one district court in each state (which may have any number of judges) and some states have multiple. This is the trial court level where a case is generally first filed.

ii. 13 federal appeals courts. The states and territories are divided up into 12 circuits that hear appeals of district court decisions and also a “federal circuit”, which hears certain limited appeals. The circuits are the first through the eleventh and then the D.C. Circuit. Any final district court decision can be appealed to a circuit court as of right.

iii. 1 Supreme Court, which hears a limited number of cases and decides, which cases to hear through a process called certiorari (“cert”). When a party wants to be heard by the Supreme Court they petition for certiorari and the Court either grants or denies review. If the Court denies cert then the decision of the lower court stands. The Supreme Court denies most requests for review.

b. Federal judges are appointed for life after being nominated by the President and confirmed by the Senate.

c. At the state level there is a parallel legal system that like the federal system has trial courts (sometimes multiple kinds of trial-level courts — criminal, civil, housing, family, etc.), appellate courts, and a state high court. Some states elect judges and others have appointment procedures that more closely mirror the federal system.

*City and county government

Within states, smaller subdivisions of the state may have their own judicial, legislative and executive branches. For example, school boards are often county-level executive bodies, city councils are city-level legislative bodies and then mayors are executive leaders of cities or towns. There may also be city or county level courts.*

II. Congress

Congress is the legislative branch of the federal government. The Senate is responsible for appointments to the federal judiciary (federal judges). Both the House and the Senate hold hearings to gather information into different issues that then inform their lawmaking. Senators and House members are broken up into committees and the committees will often conduct hearings — both to consider legislation, to have oversight over an particularly issue or the enforcement of a law, to investigate conduct of officials and federal agencies, and more.

Advocating for or against a federal bill:

A piece of proposed legislation will have bill sponsors in each chamber (House and Senate) who are pushing the bill. Then a bill will be introduced in one or both chambers and the majority can decide whether to schedule hearings in different committees. Once it a bill passes out of a committee it will either move to another committee or to the House or Senate floor. In order for a bill to become law it has to pass out of the House and the Senate and then get signed by the President.

Sometimes a bill can be amended during a committee markup (where the bill is debated among committee members) or on the floor of the House or Senate.

Most bills require just a simple majority to pass out of each chamber and then the bill goes to the President. The President can either sign the bill into law or veto the bill.

To prepare to move or stop a bill in Congress advocates can work directly with lawmakers and staff and at times testify at committee hearings on a particular topic or in support of or opposition to a particular piece of legislation.

When a bill moves through Congress and becomes a law, the committee hearings and testimony submitted and debate by members on the bill becomes part of the official legislative history of the bill and are relevant to courts when they are deciding cases over the constitutionality of the law or in a particular application of the law. For this reason, the discussion that takes place during the consideration of a proposed law is extremely important to the ultimate effectiveness of the law when considered by the courts.

Here is a straightforward description of moving a bill through Congress.

III. State Legislatures

Every state has a legislative (lawmaking) body like Congress that is responsible for passing laws that apply to the particular state. Every state also has its own constitution that is usually similar to the United States Constitution but can also be more expansive. A state law or constitution cannot offer fewer rights than the federal Constitution (or federal law on the same topic) otherwise it would violate the federal law and federal law always trumps state law when there is a conflict.

Every state legislature has a different calendar when it is in session. Most states convene every year but some do not. For example, Texas is only in session every other year. Other states have short sessions every other year and then longer sessions on the opposite years.

Like with federal laws, at the state level a bill has to pass through both chambers (House/General Assembly and Senate) if there are two chambers (Nebraska only has one) and then get signed by the Governor. If a Governor vetoes a bill, the legislature can override that veto in some cases. In some states it takes a simple majority to override (50% +1 in each chamber) and in other states it takes 2/3 (a super majority), which is a much harder threshold to meet.

Advocating for or against a state bill:

As in Congress, for a bill to become law in the states it must move through both chambers and then get signed. When drafting legislation or working with already drafted legislation advocates can with a sponsor in the legislature to get the bill into the best shape it can be. When advocates are aware of legislation they oppose, they likewise can work with legislative allies to identify a way to stop the bill.

Just like in Congress, state bills move through each chamber by going through different committees and then getting a vote on the floor. If a bill is amended in one chamber, and a different version of the bill had passed through the other chamber, then the bills have to be reconciled because the same version of a bill must pass both chambers before being passed onto the Governor. The chairs of each legislative committee (i.e., House Rules Committee) have a lot of power to decide when and whether a bill is heard. In some states every bill that is introduced gets a committee hearing but in other states a bill may get introduced and never heard.

Legislative leaders like the Speaker of the House and the Senate president also hold a lot of power in state legislative bodies. When trying to move or stop a bill it can be essential to try to lobby these party leaders. Advocacy also involves bringing constituents to meet with lawmakers and leaving information behind for lawmakers to understand our position.

IV. The Courts

The state and federal court systems are intended to provide a check on legislative and executive power and (in theory) protect minority interests. As noted above there are separate courts systems at the federal level and then within each state.

The Constitution of the United States specifies the types of cases that can be filed in federal court.

When advocates want to challenge either a state law or government or private action, they can assess whether the legal challenge is more appropriate in state or federal court.

State court actions are not removable or reviewable by the federal courts, including the Supreme Court, if all the parties reside in state and there are not federal legal questions raised by the lawsuit.

V. The Executive — Federal and State

Though state legislatures and Congress are responsible for passing laws, the executive branch of government often creates the majority of rules that directly impact our lives. This is done in a number of different ways.

The head executive at the federal level is the President and at the state level is the Governor of each state. The president and governors then have a staff and an office that is responsible for the affairs of their respective executive offices. The president and governor can also issue policies through executive order. At the federal level this is like the “Muslim Ban” which was a directive from Trump and at the state level like some non-discrimination Executive Orders that democratic governors have issued in states where the republican controlled legislature has not passed explicitly LGBTQ-inclusive non-discrimination laws.

Executive agencies also issue regulations implementing laws. At the federal level, a law called the Administrative Procedure Act (APA) requires certain administrative action to go through different steps for public commentary and review. For example, proposed regulations at the federal level must go through something called “notice and comment”. Individuals and organizations can comment on proposed regulations put out by different federal agencies. Under the APA, in certain circumstances an agency must notify the public of a proposed rule or change to an existing rule and then the public has a set period of time to comment on the rule. Then the agency considers the comments and issues a final rule explaining how they considered and incorporated (or not) the various comments from the public. States have comparable procedures for proposing and finalizing regulations.

Executive agencies can also issue sub-regulatory documents that may or may not have to go through any public comment period. For example, the Title IX guidance on transgender students from the Obama administration was issued by the agency and was not an official regulation. Many state identification document policies are sub-regulatory.

When an agency goes beyond its authority as authorized by an applicable law, there may be specific claims that can be raised in court to challenge the ways the agency went outside its scope of authority. Additionally agency action can be challenged in court as violating state or federal statutory law or the constitution.