5.1 Branches of Government, Terminology, Civil vs Criminal Law

The Paralegal CORE Competency Exam (PCCE) tests the U.S. legal system as a labeling skill. Domain 1 asks which branch produced a document, whether a file is civil or criminal, and whether the problem is jurisdiction, venue, standing, or something else. Later chapters will teach how to file a complaint and how a crime is proved. This section teaches the map those later chapters sit on.

Three branches, three jobs

The United States Constitution divides the federal government by article. Article I creates the legislative branch. Article II creates the executive branch. Article III creates the judicial branch. Match the output to the branch:

• Statutes and the power of the purse = legislative
• Enforcement, agencies, and executive orders = executive
• Cases, judgments, and judicial review = judicial

Legislative branch: statutes

Congress is bicameral: the House of Representatives (435 voting members, two-year terms, apportioned by population) and the Senate (100 members, two per state, six-year staggered terms). A bill that passes both houses in the same form is presented to the President (presentment). If the President signs it, or if Congress overrides a veto by a two-thirds vote in each house, the bill becomes a statute — enacted positive law. Modern duties that look like “the law” on a desk — Title VII of the Civil Rights Act, the Americans with Disabilities Act (ADA), the Internal Revenue Code, the Social Security Act — are statutes.

State legislatures do the same job inside each state. A state statute is not a “lesser federal regulation.” It is the law of that state, subject to the Supremacy Clause when it conflicts with the Constitution, a federal statute, or a valid federal treaty. City and county ordinances are legislation too, but they sit below state law. On the exam, “Congress enacted” or “the legislature passed” is legislative. Do not call a statute a regulation or an opinion.

Executive branch: enforcement, agencies, executive orders

The President heads the executive branch, takes care that the laws be faithfully executed, nominates principal officers and federal judges (with Senate advice and consent), and serves as commander in chief. Day-to-day administration is done by executive departments (Justice, Treasury, Homeland Security, and the rest of the Cabinet) and by independent and executive administrative agencies.

Enforcement is an executive function: the Department of Justice (DOJ) prosecutes a federal crime; the Environmental Protection Agency (EPA) issues a compliance order; a state attorney general sues under a consumer statute; a sheriff serves a writ. An executive order is a presidential directive that manages the executive branch. It can have legal effect inside that branch if it rests on a statute or a constitutional power, but a President cannot repeal a statute by order or invent a crime Congress never enacted.

Agencies also write regulations and decide adjudications. Those jobs look legislative and judicial. They exist only because a statute enabled the agency. Section 5.4 covers the Administrative Procedure Act (APA). For this section, lock the label: a regulation is executive (agency) work, not a congressional statute and not a court opinion.

Judicial branch: cases and judicial review

Article III vests the judicial power in one Supreme Court and in such inferior courts as Congress creates. Federal judges hold office during good behavior. Courts decide cases and controversies; they do not issue advisory opinions. The signature judicial power is judicial review: the authority, recognized in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), to declare a statute, regulation, or official act unconstitutional and refuse to give it effect.

A judicial opinion explains a court’s decision. It is not a statute. When the Supreme Court interprets a statute, Congress can often amend the statute. When the Court interprets the Constitution, the usual paths to change are a later Court or an Article V amendment.

Separation of powers and checks

Separation of powers assigns distinct functions so that no one branch writes, enforces, and adjudicates the same law. Checks and balances are the tools each branch uses to restrain the others.

Federalism is a second split. The national government is one of enumerated powers. States retain a general police power to regulate health, safety, welfare, and morals unless the Constitution or a valid federal law occupies the field. A stem that asks who can create a new trial court of general jurisdiction in Ohio is pointing at state structure, not at Congress.

Civil law versus criminal law

The same conduct can produce two files. A drunk driver who injures a cyclist may be prosecuted by the state for a crime and sued by the cyclist for negligence. Keep the files separate.

Preponderance means the factfinder is persuaded the proposition is more probably true than not. Beyond a reasonable doubt is the highest conventional burden. It is not mathematical certainty, but it is far above a civil preponderance. Do not assign “beyond a reasonable doubt” to a breach-of-contract case, and do not assign “preponderance” to a felony guilt finding.

Civil captions read Smith v. Jones. Criminal captions read United States v. Jones or State v. Jones. A civil defendant who loses pays money or obeys an injunction. A criminal defendant who is convicted can lose liberty. Punitive damages in a civil tort case punish, but they are still a civil remedy paid to the plaintiff, not a criminal sentence.

Terminology the blueprint expects

These words appear as standalone definition items and as traps inside longer stems.

• Jurisdiction is the power of a court to hear a case and enter a valid judgment. Split it into subject-matter jurisdiction (power over this kind of case) and personal jurisdiction (power over this defendant). A court that lacks either cannot proceed.
• Venue is the proper geographic place among courts that already have jurisdiction. Venue can usually be waived; subject-matter jurisdiction cannot.
• Standing is the plaintiff’s personal stake: a concrete injury in fact, fairly traceable to the defendant, and likely redressable by a favorable judgment. Disliking a statute is not automatically standing.
• Cause of action is a recognized legal theory — negligence, breach of contract, battery — that, if the elements are proved, entitles the plaintiff to a remedy.
• Remedy is what the court awards: damages, an injunction, restitution, a declaration. A theory without an available remedy is an empty win.
• Appellant is the party who takes the appeal; appellee is the party who defends the judgment below. At the Supreme Court and in many state high courts the labels become petitioner and respondent.

Own the nearby words as well: burden of proof, statute of limitations, common law (judge-made law), equity (injunctive and other historically chancery relief), and precedent.

How PCCE items ask “which branch” or “civil or criminal”

Expect three stems.

Branch-ID. “A cabinet secretary issues a regulation implementing a statute.” That is executive. “The Ninth Circuit holds that the statute is unconstitutional.” That is judicial. “The state senate passes a licensing bill that the governor signs.” That is legislative. Ignore the subject matter (environment, taxes, crime). Look at who acted and what document was produced.

Civil-or-criminal. Read the caption, the burden, and the requested relief. If the United States seeks a prison term, it is criminal. If a neighbor seeks an injunction and money for a boundary tree, it is civil. If the item mixes both — “after the conviction, the victim files suit” — the second case is civil even though it follows a crime.

Term-swap. The exam loves to offer venue when the problem is jurisdiction, appellee when the loser below is appealing, or standing when the real issue is the cause of action. Define the word before you pick.

Worked path. A client was fired and wants “the government to throw the manager in jail and also get her job back plus back pay.” Jail is a criminal remedy the client cannot privately prosecute in the ordinary case. Reinstatement and back pay are civil employment remedies. Congress wrote the statute (legislative). An Equal Employment Opportunity Commission (EEOC) investigation is executive. A later district-court judgment is judicial. Keep those four labels straight and the item is finished.