Cameron Miranda
The primary sources of law are constitutions, statutes, regulations, and cases. These sources are created by the three branches of government: the executive, legislative, and judicial. The executive branch, led by the President, creates administrative law in the form of regulations and executive orders. The legislative branch, composed of elected representatives, creates statutes or laws. The judicial branch, made up of judges, creates law through decisions or opinions, also known as case law. While constitutions outline the organisation and powers of governments, statutes are considered highly authoritative as they are created by a legislative body. Case law interprets and applies other primary law, with judges resolving legal disputes. Secondary sources, such as legal dictionaries, encyclopaedias, and journals, explain and analyse primary law but do not establish binding law.
| Characteristics | Values |
|---|---|
| Creators of primary sources of law | Executive, legislative and judicial branches of government |
| Primary sources of law | Constitutions, statutes, regulations, and cases |
| Executive branch creates | Administrative law, regulations, executive orders and directives |
| Legislative branch creates | Laws ("statutes") |
| Judicial branch creates | Decisions, "opinions", "cases" |
| Administrative law created by | Administrative agencies (e.g. Environmental Protection Agency) |
| Administrative agencies are part of | Executive branch |
| Administrative agencies created by | Legislative branch via "enabling" statutes |
| Lawmakers introduce bills in | Senate or House of Representatives |
| Bills are presented to | President or Governor for signature |
| If not vetoed | Bill becomes law |
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What You'll Learn
The executive branch creates administrative law
In the American system of government, powers are divided among three branches: the legislative, executive, and judicial. These three branches create primary sources of law. The executive branch, which includes the President and those who work under them, is responsible for executing the laws. The President of the United States makes executive orders and directives, which are a form of administrative law.
Administrative law structures refer to designated agencies, boards, commissions, departments, and other governmental institutions created to perform specific tasks or manage particular functions. These institutions are created and empowered by Congress to carry out areas of governance that would be too time-consuming and inefficient for the President, presidential staff, or Congress to manage without them. While agencies operate independently in their day-to-day functions, the President appoints the heads of all administrative agencies, retaining some control over their direction and policy agenda.
Agencies are created through their own organic statutes, which establish new laws, and in doing so, create the respective agencies to interpret, administer, and enforce those laws. Generally, administrative agencies are created to protect the public interest rather than to vindicate private rights. Agencies are given the authority to create administrative law through laws enacted by Congress. This law-making power is delegated to agencies as Congress cannot enforce and administer every law it enacts.
The law created by these agencies comes in the form of rules, regulations, procedures, orders, and decisions. In creating these "laws," the agency acts as a quasi-judicial, quasi-legislative entity. The agencies act in a legislative-like capacity when promulgating rules and regulations, and in a judicial-like capacity when conducting hearings and issuing rulings and decisions on particular matters. The two primary modes of operation used by federal agencies are rule-making and adjudication. Rule-making is the process of issuing binding rules to implement the agency's mandate, while adjudication involves employing judicial hearings to rule on claims on a case-by-case basis.
The Administrative Procedure Act (APA) is the major source of federal administrative agency law, providing for the roles and powers of all agencies and the procedures they must follow. The APA categorizes administrative functions into formal and informal rule-making and adjudication, which have binding effects, and guidance, which does not. Federal agencies, when issuing rules, must follow the steps laid out in the APA to ensure public participation in the rule-making process and a consistent set of procedures for issuing rules.
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The legislative branch creates statutes
The legislative branch of the government creates statutes. In the United States, the legislative branch is referred to as Congress, which consists of the House of Representatives and the Senate. Together, the House and the Senate have equal legislative powers and share the chief function of making laws.
The legislative process begins with a proposed draft of a bill, which can originate from diverse sources, including a Member's election campaign promise, a petition from a citizen group, or a state legislature memorializing Congress to enact specified federal laws. These bills are then introduced and debated in Congress, where they must be passed by both the House and the Senate. If a bill is substantially agreed upon by the President, it may be signed into law and printed in the Statutes at Large.
However, if the President disagrees with the bill, they may veto it and send it back to Congress. Congress can override the veto with a two-thirds vote in both chambers, at which point the bill becomes law. Alternatively, if Congress is in session and the President takes no action on the bill within 10 days, it will automatically become law. If Congress adjourns before the 10 days are up and the President takes no action, the bill dies, and Congress must restart the legislative process if they still wish to pass the legislation.
Statutes created by the legislative branch are considered the most authoritative source of primary law. They are often viewed as the actual law, alongside constitutions and judicial opinions.
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The judicial branch creates opinions and cases
The judicial branch of government creates primary sources of law in the form of decisions, also called "opinions" and "cases". These opinions and cases are published in case reporters.
The judicial branch is established by Article III of the US Constitution, which guarantees every person accused of wrongdoing the right to a fair trial. This article also grants Congress the power to establish courts inferior to the Supreme Court, including US district courts and courts of appeals.
The Supreme Court usually hears oral arguments before issuing a ruling, where the various parties to the suit present their arguments and the Justices ask them questions. The Justices then hold private conferences, make their decision, and issue the Court's opinion, along with any dissenting arguments.
Judicial opinions are written by judges to interpret and apply other primary law and resolve legal disputes. Cases are first decided in the state trial or federal district court, and then can move on to intermediate appellate courts. Federal courts have the sole power to interpret the law, determine the constitutionality of the law, and apply it to individual cases.
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The President makes executive orders
In the United States, an executive order is a directive issued by the President that manages the operations of the federal government. While the US Constitution does not explicitly define or authorise executive orders, Article II vests executive powers in the President, making him the commander-in-chief and requiring him to "take Care that the Laws be faithfully executed".
Executive orders have been used by Presidents since George Washington to make significant decisions. For example, Washington's first executive orders were for executive departments to prepare reports for his inspection and to proclaim a Thanksgiving holiday. Abraham Lincoln suspended the writ of habeas corpus during the Civil War using executive orders, and Franklin Roosevelt established internment camps during World War II through an executive order.
Executive orders can have the same effect as federal laws, and they remain in force until they are cancelled, revoked, adjudicated unlawful, or expire. However, Congress can pass a new law to override an executive order, subject to a presidential veto. Additionally, executive orders are subject to judicial review and may be overturned if they lack support by statute or the Constitution.
The process of issuing an executive order typically involves the President signing the order and sending it to the Office of the Federal Register (OFR). The OFR assigns a sequential number to the order, publishes it in the daily Federal Register, and eventually in Title 3 of the Code of Federal Regulations. Executive orders are often proposed by federal agencies before being issued by the President.
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Administrative agencies make rules and regulations
Administrative agencies are responsible for enforcing laws passed by legislative bodies. To do this, they create their own policies, procedures, and rules, which are a critical part of administrative law. Agencies are created through their own organic statutes, which establish new laws, and in doing so, create the respective agencies to interpret, administer, and enforce those laws. Agencies are delegated power by Congress or, in the case of a state agency, the state legislature.
The rules created by administrative agencies are published in two official sources: the Federal Register and the Code of Federal Regulations. These rules are promulgated to implement, interpret, or prescribe law or policy. Agencies provide the detailed rules and guidance needed to clarify and properly execute statutes.
The process of creating, amending, or repealing rules is called rulemaking. Rulemaking procedures may be formal or informal, depending on the agency and the types of rules involved. Agencies must follow certain procedures in creating their rules, which often include giving notice of a proposed rule before it is enacted. This is known as "notice and comment rulemaking" or "informal rulemaking". The public is given an opportunity to submit comments on the proposed rule, and the agency may make modifications to the rule based on this input. Once all deadlines for public involvement have passed, the final rule is published in the Federal Register and added to the Code of Federal Regulations.
The Administrative Procedure Act (APA) is the major source of federal administrative agency law and governs the rulemaking process. The APA categorizes administrative functions into formal and informal rulemaking and adjudication, which have binding effects, and guidance, which does not. The APA prescribes certain procedural rules that agencies must follow before acting in their functions.
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Frequently asked questions
The constitution is a primary source of law that serves as a guiding instrument within a nation's legal framework. It is created by the legislative branch of the government, which operates at the national, state, or local level.
Statutes are laws created by the legislative branch of the government, which may operate at the national, state, or local level. They are considered primary sources of law.
Cases, also known as opinions, are primary sources of law created by the judicial branch of the government. These decisions are published in case reporters and are considered binding unless overturned by a higher court.
Yes, regulations and treaties are also considered primary sources of law. Regulations are issued by administrative agencies based on statutory authority. Treaties, on the other hand, are formal written agreements between nations governed by international law and negotiated by the executive branch, specifically the President or a member of the executive branch.
