The International Students’ Guide to American Politics and News: Part I

Part I: Primer on American Law and Politics for International Students

Benjamin P. Stern, Esq.
Founder & CEO, IvyAchievement
Member, New York State Bar and United States Courts for the Eastern District and Southern District of New York

As a lawyer, the founder of an university admissions consulting company that has served dozens of international students, and a concerned American citizen, I have been following the political situation in the United States very closely. There is a lot of misinformation circulating, especially in international sources. The purpose of this Guide will be to highlight and explain developments in American politics and policy that may affect current and potential international students. I will use “primary sources” (for example, official government documents and organizations’ own statements) where possible. These posts will be updated as necessary to keep them current. 

This post is geared toward international students, international applicants, and American readers who would like to know more about how the United States government works. Most of this content will be familiar to those who have taken a class in American government. You still may learn something!

The Three Branches of Government

The United States Constitution outlines the structure and function of the three branches of American government. A legislative branch to create laws, an executive branch to enforce the laws, and a judicial branch to interpret laws and settle disputes (both civil and criminal). The United States Constitution enshrines two important principles: a separation of powers among the three branches so that it is clear who can do what, and a system of checks and balances put in place so that no branch of government can wield too much power. An example of separation of powers is that only the legislative branch can impose taxes, while the executive branch can set foreign policy. As a check on the legislative power, the president can veto any legislation passed by the legislative branch, and as a balance to the president’s veto power, the legislative branch can override the president’s veto with a two-thirds majority. There are many more examples.

The Legislative Branch

The United States was founded by 13 British colonies that declared themselves as “states” and united to form a common country: hence the name “United States of America.” Each state had its own economic and social interests. As believers in democratic values, the “framers” of the United States Constitution (the political philosophers, statesmen, and authors involved) wanted to provide majority rule and planned to implement a system of proportional representation. However, a purely representative form of government would have resulted in the interests of people in smaller states getting less attention. As part of the “Great Compromise,” the framers created two “houses” of the American legislative branch: the House of Representatives (informally called the “House”), whose members are elected by citizens in geographical districts divided by population, and a Senate in which each state would have two “at-large” representatives. Together, the two are called “Congress,” although the term “congressman” and “congresswoman” refer to a member of the House of Representatives only.

Formally, members of the House of Representatives are called representatives and are titled in media with “Rep.” Members of the Senate are called “senators” and are titled in media with “Sen.” Sen. Kamala Harris (D – CA) means Kamala Harris is a senator from California and is a member of the Democratic Party. Rep. Paul Ryan (R – WI) means that Paul Ryan is a representative from Wisconsin and a member of the Republican Party. There are 435 representatives (set by law independent of total American population) and 100 senators from 50 states.

The Executive Branch

The executive branch consists of a multitude of agencies that administer the functions of the United States government and enforce its laws. The executive branch is led by the president. The president appoints members of his or her cabinet, who oversee various agencies of the executive branch. Cabinet members must be approved by the Senate. Several executive branch departments affect international students and international applicants to the United States:

• The Department of State (or “State Department“) conducts foreign relations and issues passports and visas. The head of the State Department is the Secretary of State. The Secretary of State has always been a member of the president’s cabinet.
• The Department of Homeland Security (DHS), created in 2003, includes agencies such as Citizenship and Immigration Services (CIS), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE). These three agencies’ responsibilities used to be carried out by the Immigration and Naturalization Service (INS), which no longer exists. The head of the Department of Homeland Security is the Secretary of Homeland Security.
• The Department of Labor (DOL or “Labor Department“) is responsible for setting labor policy, monitoring compliance with labor laws, and collecting labor statistics. The head of the Labor Department is the Secretary of Labor. The Secretary of Labor has held a cabinet-level position since 1913.
• The Department of Justice (DOJ or “Justice Department“) is responsible for enforcing the laws of the United States, including civil rights laws. The head of the DOJ is the Attorney General. The Attorney General has always been a member of the president’s cabinet.
• The Department of Education (ED or DoED), created in 1980, sets education policy and administers financial aid for university students and certain grants to universities. The United States does not have any national universities and no universities are directly controlled by the national government, but the Legislative Branch and Executive Branch can exert power over universities by granting or withholding money. The head of the Department of Education is the Secretary of Education.

The Vice President is a member of the Cabinet but has very few powers of his or her own. The primary role of the Vice President is to step in as president if the president is incapacitated, dies, or resigns from office. The Vice President also casts the deciding vote in case there is a tie in the Senate.

Presidential elections are conducted using the Electoral College. In this system, each state is assigned a number of electors equal to the total number of representatives and senators. Each state conducts its own election and residents of each state cast their ballots for a “ticket” consisting of a presidential and vice-presidential candidate. In most states, the winner of the greatest number of votes earns the votes of the electors, who cast their final votes in December. There are 538 electoral votes (435 representatives, 100 senators, and three for Washington, D.C., the United States capital, which is not located in any state). To win the election, a candidate needs to earn at least 270 electoral college votes.

The Judicial Branch

The judicial branch consists of most of the “federal courts” of the United States. (There are also courts that are part of the executive branch, but they are largely irrelevant to international students.) Federal courts decide both criminal and civil cases (lawsuits).

Federal civil courts are courts of limited subject-matter jurisdiction, meaning there are only certain kinds of cases they can hear. One of the most important roles of the judicial branch is determining whether the laws passed by the legislative branch are constitutional. If a law is unconstitutional, it is “struck down” and cannot be enforced. The judicial branch also determines whether the actions of federal government officials are legal. Actions of federal officials may be determined to be illegal if they violate various laws passed by Congress, including civil rights laws, or if they violate constitutional rights.

There are three levels of federal courts:

• District courts hear cases, impose penalties, and order federal officials to act or refrain from acting through the use of “injunctions.” There are 94 district courts covering the 50 states and various U.S. territories. Jurisdiction of the courts is geographical, with at least one district court per state. Some examples of district courts are the United States District Court for the Eastern District of New York (E.D.N.Y.), which covers the New York boroughs of Brooklyn and Queens and the remainder of Long Island and the United States Court for the District of Northern California (N.D. Cal.). Each district court has multiple judges. For example, E.D.N.Y. has 15 judges and N.D. Cal. has 14 judges.
• The courts of appeal (“appellate courts” or “circuit courts“) decide whether decisions issued by district courts are correct. Only certain kinds of decisions may be appealed to the Courts of Appeal. In some urgent cases, an appeal may be taken very quickly. There are 13 courts of appeal, 12 of which are divided up geographically and one which hears all cases on certain subject matter, including patents, trademarks, and international trade issues. The district courts are each assigned to a single circuit court. For example, cases heard in the District Court for the Eastern District of New York are appealed to the Court of Appeals for the Second Circuit, and those in the Northern District of California are appealed to the Ninth Circuit. The circuit courts have several judges. For example, the Second Circuit has 13 active judges and the Ninth Circuit has 29.
• The Supreme Court of the United States (SCOTUS) is the highest court in America. A party that is unhappy with a court of appeals decision can appeal the case further to the Supreme Court. With a few exceptions, the Supreme Court can decide what cases it takes on appeal. If the Supreme Court refuses to take a case, then the decision of the circuit court stands. The Supreme Court can also take appeals from individual state supreme courts if there is a “federal issue” (for example a state law that may violate constitutional rights). The members of the Supreme Court are called “justices” and are appointed by the president. There are nine Supreme Court justices. If the Supreme Court declares a law unconstitutional, then it ceases to be an effective law anywhere in the United States even if it remains “on the books.”

All federal judges in district and circuit courts and the justices of the Supreme Court are appointed by the president and confirmed by a majority vote in the Senate. Notably, unlike other government employees, they serve for life or until they retire. Because the Supreme Court is so powerful and the fact that there are only nine justices, appointing a Supreme Court justice is one of the most important actions a president can take. The process is often fraught with political controversy and maneuvering.

Federalism

When the original Thirteen Colonies unified to form the United States, they each wanted to retain their own sovereignty in some way. Prior to the adoption of the Constitution, there was public debate between federalists, who favored a strong national government, and anti-federalists, who thought the role of the central government should be minimal.

Throughout American history, there has been tension between those who support “states’ rights” and those who prefer the Federal government’s laws

Political Parties

The United States has two major political parties: the Democratic Party and the Republican Party.

Democratic Party

The Democratic Party is conventionally characterized as “liberal” and supports government-sponsored social welfare programs, stricter regulations of business, and higher taxes to fund government spending including on public education. For several decades, the Democratic Party has been considered more “socially liberal,” taking stances in support of protection of lesbian/gay/bisexual/transgender (LGBT) rights, affirmative action in schools, the right of women to abort pregnancies, and stricter gun control. The Democratic Party also tends to align with labor unions, including teachers’ and graduate students’ unions.

Finally, the Democratic Party tends to support liberal immigration policies and does not support policies that target law-abiding “illegal aliens” (often called “undocumented residents”) for deportation. Many in the Democratic Party even support “sanctuary cities” whose law enforcement officers do not report crimes committed by non-citizens to federal authorities. Democrats are more likely to argue that non-citizens should be afforded the same legal rights as citizens, including the right to legal counsel, the right not to be detained unreasonably, and the right to a speedy trial.

Former president Barack Obama is a member of the Democratic Party, as are former president Bill Clinton and Hillary Clinton, who was former First Lady (wife of the president), a United States Senator, Secretary of State, and the 2016 presidential candidate. Hillary Clinton’s opponent during the 2016 election was Senator Bernie Sanders, who was an independent (not a member of either party) until he ran for the presidential nomination against Hillary Clinton.

Leadership and famous party members

The leaders of the Democratic Party include Senator Charles “Chuck” Schumer, who is the Senate Minority Leader, and Representative Nancy Pelosi, who is the House Minority Leader.

Other famous Democrats include Franklin D. Roosevelt (FDR), who served from 1933 until his death in 1945 (longer than any other president) and led the United States during World War II, and John F. Kennedy (JFK), who took office in 1961 and was assassinated in 1963. JFK International Airport is named after him and the Kennedy family is still active in politics.

Republican Party

The Republican Party is conventionally characterized as “conservative.” The Republican Party tends to oppose the expansion of civil rights laws to cover LGBT rights, increased spending on social welfare programs, and laws that regulate the sale or ownership of firearms. Republicans tend to oppose using federal money for certain actions, such as contraception and abortion, that they feel violate certain values, largely derived from Christianity.

Republicans tend to support lower taxes as well as less regulation of businesses and financial institutions. Some Republicans also tend to support programs that benefit private schools over public schools.

Notably, Republicans tend to take a harsher stance toward illegal immigration and a “hawkish” (more confrontational) approach to national security, leading to stricter immigration policies.

Leadership and famous party members

Leaders of the Republican Party include current president Donald J. Trump, Senate Majority Leader Mitch McConnell, and Speaker of the House Paul Ryan.

Famous Republicans include 16th president Abraham Lincoln, who served from 1861 until his death in 1865 and led the United States during the American Civil War, 40th president and former governor of California (and actor) Ronald Reagan, who served from 1981-1989 and led the United States during the end of the “Cold War” with the Soviet Union, and 42nd President and former governor of Texas George W. Bush, who served from 2001-2009, led the United States during the September 11, 2001 terror attacks, and launched wars in Iraq and Afghanistan.

The Republican Party currently has majorities in both houses of Congress, but there has been political upheaval recently due to the 2016 election. There are currently several factions within the Republican party. Two of these factions are noteworthy for international students:

The Christian Right

The Christian right refers to those who believe the United States should be guided by Christian values, specifically Evangelical Christian values. Those on the Christian right oppose LGBT rights and may even support criminalizing homosexual activity. They oppose abortion in any form and tend to oppose contraception as well. Many on the Christian right would prefer that Christianity be made the official religion of the United States, although that is against the Constitution.

In accordance with the tenets of Evangelical Christianity, many on the Christian right believe those who do not practice Christianity are “damned” and so support efforts to convert non-Christians. Some on the Christian right believe that the “Christian world” is at war with the “Islamic world,” and Islam is a force to be defeated. Those on the Christian right tend to oppose immigration from non-Christian countries and have mixed feelings toward immigration from Latin America, which is largely Catholic.

The “alt-right”

The alt-right refers to a relatively new movement that encompasses a range of various positions. In general, the alt-right is nationalistic, putting American interests ahead of others’. Unlike the position the Republican Party has taken for several decades, the alt-right is strongly protectionist, favoring economic policies that encourage the use of labor of United States citizens, including import tariffs and restrictions on immigration. Those on the alt-right generally believe that non-citizens, especially illegal immigrants, are entitled to minimal protection under American law.

The most prominent voices on the alt-right are white, and those considered to be on the alt-right tend to favor policies that tend to benefit white people over others. Several members characterized as alt-right have supported principles of “white supremacy” (the belief that white people are superior to others and ought to have political power) and/or “white nationalism” (the belief that white people have a right and/or duty to politically unite and assert their interests over others’). However, not all members of the alt-right believe in white supremacy or white nationalism.

Those on the alt-right tend to oppose women’s rights movements, affirmative action, or any liberal “identity politics.” The alt-right tends not to be vocal on same-sex marriage or drugs, preferring the government refrain from regulating personal activities.

The alt-right encompasses a range of religious views. Some of the alt-right is overtly Christian, but many believe in a strong separation of Church and State. However, the alt-right tends to be suspicious of immigration by Muslims and Islamophobia is very common. Many on the alt-right see accepting refugees and migrants from Islamic countries as opening up the doors to violence and terrorism, and in support point to countries in Europe that have seen an increase in violent crime after admitting Muslim migrants.

Some notable alt-right personalities include Richard Spencer (a white nationalist who coined the term “alt-right”) and Steve Bannon (former head of Breitbart News and a current Donald Trump advisor).

Donald Trump

Donald J. Trump started working in his family’s real estate business in the 1970s and became a real-estate magnate in the United States by the mid-1980s. He is one of the most recognized celebrities in the United States. Trump’s companies own or control hotels, casinos, clubs, and condominium buildings around the country and several abroad. Donald Trump produced and starred in the television show The Apprentice and its spin-off The Celebrity Apprentice, dismissing contestants with his signature “you’re fired.” Trump has had several other businesses, many of which branded with the “Trump” name.

Before 2015, Donald Trump’s political activity consisted mostly of developing positive relationships with politicians of both parties. However, during Barack Obama’s presidency, Trump became an outspoken member of the “birther” movement, which believes that President Obama was not born in the United States and was therefore, ineligible to be president.

Donald Trump announced his candidacy for the presidency of the United States in June 2015 for the election to be held in November 2016. Trump’s candidacy was not taken seriously by most in the media. Trump entered the Republican primary race with 16 other candidates. During debates, he attacked many of the other candidates in colorful ways. Despite a series of gaffes, statements, and policy positions that would have doomed other candidates’ campaigns, Trump defeated the competition won the nomination.

Trump then engaged in a general election battle with Hillary Clinton. Despite several setbacks, Trump recovered against predictions and was elected president on November 8, 2016. Donald Trump lost the popular vote by nearly 3 million votes but still won the Electoral College 306-232.

Mike Pence

Vice President Michael “Mike” Pence, former governor of Indiana, was Donald Trump’s running mate. He is known as a Christian conservative.

Differences Between the United States and Other Democracies

• The United States does not follow the parliamentary system. In a parliamentary democracy, representatives are selected in proportion (subject to certain cutoffs and other rules) to the number of votes received by their party as a whole.  In the American system, each citizen votes for one representative and one senator. Unlike in a parliamentary democracy, the executive branch can be controlled by a party (or coalition) other than the one that controls the legislative branch.
• The two houses of Congress are not divided into an “upper” or “lower” house. Although senators serve longer terms and the positions are considered more influential and prestigious, the Senate is considered equal in power to the House of Representatives.
• There is a single Supreme Court that hears appeals from regular judicial disputes and also rules on constitutional challenges. In some countries, there is a separate “constitutional court” that rules on constitutional issues only.

How Laws Are Made

All laws of the United States start out as “bills.” A bill is a proposed law.

1. A bill is authored by congressional staff members under direction of one or more members of the House of Representatives (usually) or Senate (sometimes).
2. The bill is reviewed by congressional lawyers.
3. The bill is then introduced by one or more representatives or senators, called “sponsors.”
4. Other representatives or senators sitting on a relevant committee then review and debate on the bill, and vote on whether or not to recommend it become law. Committees most relevant to international students include the House Committee on Homeland Security, the House Committee on Education and the Workforce, the Senate Committee on Health, Education, Labor, and Pensions, and the Senate Committee on Small Business and Entrepreneurship.
5. The bill is brought to a vote by the entire House of Representatives or Senate.
6. The bill is sent to the other house of Congress and sometimes amended.
7. The relevant committee revises the bill if necessary and votes to recommend it for approval. Sometimes the bill goes through several revisions and is sent back and forth between houses of Congress.
8. The second house (usually the Senate) votes on the bill.
9. If the bill is passed by both the House of Representatives and the Senate, then the President is given the bill to sign.
10. The president may (1) sign the bill into law, (2) veto the bill and return it to Congress, or (3) (rarely) not take any action and exercise a “pocket veto.” Only in the first case does a bill immediately become law.
11. If a bill is vetoed, Congress can override the veto with a two-thirds majority in each house.

Executive Orders

An executive order in an order by the president directly to an agency or agencies of the executive branch. Usually the executive branch carries out its functions without direct orders from the president, but sometimes the president wants to implement a policy change or exercise some authority provided by law. 

The use of executive orders has increased in recent decades, with presidents typically issuing around 30-40 executive orders per year.

Executive orders can be controversial because the president may direct law enforcement not to focus on enforcing certain laws. This is because the president swears to “preserve, protect, and defend the Constitution of the United States” and the Constitution requires that he or she carry out the laws. Executive orders that contravene legislation passed by Congress or the Constitution can be challenged in courts.

Our next article will focus on Donald Trump’s executive orders regarding immigration and national security.