Hierarchy of U.S. primary authorities

You are here:
< Back

There are two (major) levels of government in the United States—the federal or national government and the state governments. Primary authorities are made at the federal and state levels and also at county, municipal, and other levels. As a result, there are interlocking hierarchies of authorities, a simplified depiction of which appears in this figure.

The elements of these hierarchies include:

  • Constitutions. A constitution, depicted in blue in the figure, is a document adopted at the inception of a state or national government, and sometimes amended thereafter, that establishes the basic, highest legal rules of the jurisdiction.
  • Statute (or legislation). A statute, depicted in orange in the figure, is a law adopted by a legislature and usually signed by the executive. At the federal level, Congress passes laws that the President then signs. As long as it is consistent with the Constitution, it is the highest authority in a jurisdiction.
  • Administrative rule or regulation. A rule, depicted in gray in the figure, is adopted by an administrative agency (a part of the executive branch) that has received some delegated authority from the legislature to make laws. For example, the federal Food and Drug Administration (an agency under the management of the President) makes regulations that have the force of law with authority it receives under the Federal Food, Drug, and Cosmetic Act, a statute passed by Congress and signed by the President.
  • Executive order. Executive orders are not depicted in the figure, but at the federal level and in most states, the President or governor can promulgate executive orders. They are binding on the operations of the executive branch of the government so long as they are not inconsistent with statutes or regulations.
  • Common law. At the state level, the common law—depicted in gold in the figure—is a rule that creates legal rights or obligations and is adopted by a court with power to bind lower courts. For example, in a case presented in this wiki, Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998), the Minnesota Supreme Court determined that a plaintiff could bring a claim for certain invasion-of-privacy torts that previously did not exist in Minnesota. No legislative action authorized the creation of this new legal right; but it immediately existed in all Minnesota state courts.

There is one more kind of primary authority—a contract. Generally, a  contract is a bargained-for exchange between two or more parties; the contract creates legal rights and obligations only for the parties, and only the parties can go to court (or another kind of dispute resolution, like arbitration) to enforce those rights and obligations. Contracts are most frequently interpreted under the statues and common law of a particular state. As between the parties, a contract can supersede common law, statutes, and even the Constitution. For example, you might be entitled to damages for a tort that someone else commits, but if you sign a contract waiving that right in return for some other thing of value, the contract will prevent you exercising your rights under tort law.

Courts are called on to interpret all these types of primary authority, so court opinions may relate to any of them. The highest, final interpretive authority for each authority depends on which hierarchy the authority appears in. The U.S. Supreme Court has final interpretive authority over the U.S. Constitution, federal statutes, and federal rules. It does not have interpretive authority over state constitutions and other state laws, except if they are challenged as violating the U.S. Constitution. The court of last resort in each state (often called the “supreme court”) has final interpretive authority over the state constitution, state statutes, and state common laws, so long as all are consistent with the U.S. Constitution.

Note that courts may interpret laws outside their hierarchies (fed- eral courts interpreting state law and vice versa) and systems at the state and federal levels sometimes interact in other ways, but we’ll save those discussions for when they happen in our cases.

Previous “Legal authority” defined
Next Sources of law

Leave a Reply

Your email address will not be published.

This site uses Akismet to reduce spam. Learn how your comment data is processed.