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What congress does?

What congress does?

Description

School: Indiana University
Department: Political Science
Course: Intro to American Politics
Professor: Barbour d
Term: Fall 2015
Tags: Government, American Government, and Politics
Cost: 50
Name: Finals Study Guide
Description: Study Guide for POLS-Y 103 Final
Uploaded: 04/25/2017
90 Pages 136 Views 14 Unlocks
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Chapter 11 Notes


What congress does?



POLS-Y 103

Yellow = Vocab Term

Pink = Important Term

Bold = Important Point

Congress

- What Congress Does?

o Congress & the Constitution

 “first branch” in earlier decades

 Bicameralism: the system of having two chambers within  one legislative body (U.S Congress having the House & the  Senate)

 Senators serve for 6 years; Representatives serve for 2  years

 Members are expected to encompass the common good &  represent their local constituents

 Founders viewed the Senate as the institution for  larger debate & one that would speak more on  

behalf of the national interest (House=more  


Pork barrel means what?



responsive/passionate)

 1913: 17th Amendment allowed for direct election for  

Senators

 Only one-third of the 100 Senate seats up in each election  Relationship b/t President & Congress

∙ Pork barrel: legislative appropriations that benefit  

specific constituents, created with the aim of helping  

local representatives win reelection (Congress better  We also discuss several other topics like Who is winston churchill?

suited for this)

∙ President assumed more of a central role after the  

increasing importance of national security following  

the wars We also discuss several other topics like Weathering means what?

o Congress & People

 People tend to hate Congress as a whole, but like  their individual representatives


Descriptive representation refers to what?



∙ In a poll asking whether people have a higher opinion

of root canals or Congress, root canals won

 Types of representation

∙ Descriptive representation

o Descriptive representation: when a member of  

Congress shares the characteristics of his/her  If you want to learn more check out What is the climate of the middle east and north africa like?

constituents

o Related to the perceived responsiveness of a  

member of Congress

∙ Substantive representation

o Substantive representation: when a member of

Congress represents constituents’ interests &  

policy concerns

 Trustee: member of Congress who  

represents constituents’ interests while  

also taking into account national,  

collective, and moral concerns that  

sometimes cause the member to vote  

against the preference of a majority of  If you want to learn more check out What is parameter queries?

constituents

 Delegate: member of Congress who  

loyally represents constituents’ direct  

interests

∙ Delegates do what the voters want

 Politico: member of Congress who acts as

a delegate on issues that constituents  

care about and as a trustee on more

complex or less-salient issues

 Role of the Constituency

∙ How do districts vary?

o Size

o Who lives there

o What they want from government If you want to learn more check out What is the amazonomachy?

∙ Legislators reflect the central tendencies of their  districts

∙ Despite varying differences, voters wants many of  the same things: healthy economy, safe country,  

good schools, effective health care If you want to learn more check out What is the effect of the environment on traits?

∙ Constituents want their elected officials to do  

casework for the district & showed little interest in  

having the representatives “spend more time in  

Washington”

o Casework: assistance provided by members of  

Congress to their constituents in solving  

problems with the federal bureaucracy or  

addressing other specific concerns

o Members of Congress want to Keep their Jobs

 Political Scientist David R. Mayhew argued that reelection  must come first; if members do not maintain their seats,  then any of their policy goals are essentially worthless

 Electoral connection: idea that congressional behavior is  centrally motivated by members’ desire for reelection  Incumbents work toward reelection

∙ Mayhew outlines three ways for members to promote reelection

o Advertising (appeals or appearances that get  name in front of the public)

o Credit claiming (member takes credit for  

something of value to the voter) (ex: pork  

barrel politics)

o Position taking (public statement about a topic  of interest to constituents or interest groups)

∙ Five costs on focusing on reelection

1. Perception that Congress gives itself  

too many special privileges at securing

reelection

2. Evidence shows that some voters  

question the value of pork barreling

3. Members’ desire to please means that  Congress has a difficult time refusing  

demands, which leads to contradictory  

legislation/policies

4. Being an expert on getting reelected  

granting them some form of  

independence from their party; creates

difficulties between Congress &  

congressional leaders

5. Time spent actively campaigning for  

reelection takes away from the  

responsibilities of enacting laws &  

overseeing their implementation

 The Incumbency Advantage

∙ Senator Tammy Baldwin (D-WI) was elected to serve  in the House for five years & was the first lesbian  woman elected to the Senate in 2012

∙ Incumbency advantage: relative infrequency with  which members of Congress are defeated in their  attempts for reelection

o If member is reelected with less than 55% of  the vote, he is said to have a marginal seat 

o Past two decades, reelection rates have been  record high levels (95-98% of House  

incumbents winning)

 In the District: Home Style

∙ One explanation for this advantage is rooted in the  diverse congressional districts & states

∙ Members are spending more time at home than in Washington in order to get a better  

understanding of constituent wants/needs  Campaign Fundraising

∙ Raising money is the key to staying in office o At least $1 million to pose a challenge

∙ Incumbents spend up to 3x more than  

challengers

∙ Raising enough money also wards off potential  challengers

 Constituency Service

∙ “Work their districts”: taking every opportunity to  meet with constituents

∙ Many House members claim to be in the “Tuesday to  Thursday Club,” meaning they are in Washington  during the middle of the week, and home for the rest  of it

 National Forces in Congressional Elections

∙ Because Congressional politics tend to be  local, voters are usually not influenced by the  president or the national parties

∙ Many Congress members distance themselves from  the national party

o 2008: Republicans backlashed on Bush when  his approval ratings were at record lows. They  

avoided being seen with him & they were able  to maintained their possession of the House in  2012 when Obama was elected

 Redistricting Connects Representation & Elections ∙ District boundaries determine who is able to vote in a congressional race; lines are re-drawn every 10 years o Redistricting: state legislatures re-drawing the  geographic boundaries of legislative districts

∙ Apportionment: process of assigning the 435 seats in the House to the states based on increases or  

decreases in state population

o State growing the fastest gain seats & vice  

versa

∙ The Senate is not redistricted because regardless  each state gets two members

∙ Districts should

o Be roughly equal in population

o Reflect “communities of interest”

o Be compact (no bizarre shapes)

o Be continuous in shape

 Partisan Redistricting

∙ Sometimes in redistricting, a reduction in the number of seats can lead to districting plans that put two

incumbents in one district, which means they  

must run against one another

o Both parties use this technique to knock  

out the other party & have a partisan  

advantage

∙ Gerrymandering: attempting to use the process of re drawing district boundaries to benefit a political  

party, protect incumbents, or change the proportion  

of minority voters in a district

 Racial Redistricting

∙ Redistricting has been utilized to create majority  

populations of minority voters

o Ex: North Carolina created district boundaries  

that looked like inkblots to create these  

districts; it was declared unconstitutional by  

the U.S. Supreme Court

o Dozens of lawsuits about racial redistricting

∙ Race cannot be the predominant factor in  

drawing congressional district lines, but it can  

be one of the factors

 Responsibility-Responsiveness Dilemma

∙ Congress comes off as small-minded due to the  

duality of being responsible for national policy  

making and responsiveness to local constituencies

∙ Choices between responsible and responsive

∙ Gridlock: an inability to enact legislation because of  

partisan conflict within Congress or between  

Congress & the President

- Structure of Congress

o Informal structures

 Norms that provide informal structure for the functioning of Congress

∙ Universalism: the norm stating that when benefits  

are being divided up they should be awarded to as  

many districts & states as possible

∙ Logrolling: form of reciprocity in which members of  

Congress support bills that they otherwise might not  

vote for in exchange for other members’ votes on  

bills that are very important to them

o “Scratch my back, I’ll scratch yours”

o Earmarks: federally funded local projects  

attached to bills passed through Congress

∙ Specialization: (important for efficient Congress  

operation & member reelection) by specializing in a  given issue, members provide valuable information  to the institution as a whole & have more credit  

claiming powers

∙ Seniority: (serves individual & institutional purposes)  members with the longest services on a committee  will chair the committee

o Formal structures

 Parties & Party leaders

∙ Importance of parties in solving collective action  problems in Congress

o Without parties, members of Congress would  

all identify as individual agents & it would  

become more of a fractured/decentralized  

structure

∙ Speaker of the House: head of the majority party and influences the legislative agenda, committee  

assignments, scheduling, and strategies

o 2007, history was made when reps elected  

Nancy Pelosi as first woman Speaker of the  

House

∙ Majority leader: elected head of party holding the  majority of seats in the House; oversees the whip  

system

o Whip system: organization of House leaders  

who work to disseminate information and  

promote party unity in voting on legislation;  

has three functions

 Information gathering

 Information dissemination

 Coalition building

o If a vote looks close, whips try to persuade  

members to support the party’s position

∙ Minority leader: elected head of the party holding the minority of seats in the House

∙ Senate leadership does not have as much power as  the leadership of the House (individual Senators have more power than individual House members due to  Senate’s rule of unlimited debate)

o Senate has whip system, but not developed or  

utilized as House’s system

o Vice President=Leader of the Senate; but  only appears in chamber when needed to cast  

a tie-breaking vote

∙ President pro tempore: largely symbolic position  usually held by the most senior member of the  majority party in the Senate; presides over Senate when VP is not there, but does not have any  real power

 Role of Parties & Conditional Party Government ∙ U.S. Congressional parties are very weak in  comparison to parliamentary systems

∙ Partisanship reached highest levels in the post-World  War II era

o About 70% of all roll call votes were party votes  Roll call votes: recorded vote on  

legislation; members may vote yes, no,  

abstain, or present

 Party votes: vote in which the majority of  

one party opposes the position of the  

majority of the other party

∙ Party unity: extent to which members of Congress in  the same party vote together on party votes

∙ Parties in Congress now are more polarized  than at any point in U.S. history

∙ Leaders must have the ability to bargain &  

compromise

o Find solutions where none appear possible

o Do favors for members to engender a feeling of personal obligation to the leadership when it  

needs a key vote

∙ Party’s most powerful positive  

incentive=campaign finance

∙ Speaker Boehner disciplined four Tea Party House  Republicans by removing them from their  

committees because he had tired of the  

“brinkmanship” approach to budget politics favored  by Tea Party representatives; Boehner was unable to  prevent a government shutdown in 2013 and was  forced to resign by 2015

 The Committee System

∙ Four types of committees

o Standing

o Select

o Joint

o Conference

∙ Standing committees: committees that are  

permanent parts of the House/Senate structure,  

holding more importance & authority than other  

committees

∙ Select committees: typically address a specific topic  for one or two terms; mostly serve to collect  

information, provide policy options, and draw  

attention to a given issue

∙ Joint committees: committees that contain members  of both the House & Senate but have limited  

authority

∙ Conference committees: temporary committees  

created to negotiate differences between the House  

& Senate versions of a piece of legislation that has  

passed through both chambers

∙ Committee system creates division of labor that  

helps members get reelected

∙ Distributive theory: idea that members of Congress  

will join committees that best serve the interests of  

their district and that committee members will  

support one another’s legislation (norm of  

reciprocity)

∙ Informational theory: idea that having committees in  Congress made up of experts on specific policy areas

helps to ensure well-informed policy decisions

o Committee system does not exist solely to  

further members’ electoral goals, but it often  

happens anyways

∙ Committees serve the need of the majority party

o Rules Committee: important to the majority  

party because it structures nature of debate in  

the House by setting length of debate and  

type/number of amendments to a bill that will  

be allowed

 Decisions=”rules”

 Congressional staff

∙ Total number of congressional staff is more  

than four times as large as it was 50 years ago

∙ This increase is to reduce the gap between the  

policy-making capability of Congress & the president

- How a Bill Becomes a Law

o Conventional process

1. Member of Congress introduces the bill

2. Subcommittee & committee craft the bill

3. Floor action on the bill takes place in the first  chamber (House or Senate)

4. Committee & floor action takes place in the  second chamber

5. Conference committee works out any differences  between the House & Senate versions of the bill  (if two chambers pass the same version, steps 5  & 6 are not necessary)

6. Conference committee version is given final  approval on the floor of each chamber

7. President either signs or vetoes the final version 8. If bill is vetoed, both chambers can attempt to  override it with two-thirds vote in both chambers o In more detail

 Only Congress can introduce a bill

 The bill is then sent to the relevant committee (House &  Senate rules specify committee jurisdictions)

 Chair then refers bill to a relevant subcommittee where  much of the legislative work is done

∙ 80-90% of bills die at this stage of the process

∙ Markup: one of the steps through which a bill  

becomes a law, in which the final wording of the bill  is determined

 When it makes it to the floor, the House bill manager  proceeds debate according to time limits & rules governing the nature of amendments; Senate debate is more open  and unlimited in most circumstances

 When debate is completed, voice vote is taken

 Modifications of the Bill are transferred back and forth  between the two houses

 Common way to resolve differences on major legislation is  through conference committee of key players in the House  & Senate

 Bill is then sent to president

∙ May veto (rejection of bill passed by Congress) within ten days

∙ Bill dies if 2/3 of both House & Senate do not vote to  override the veto

∙ If President does not act within 10 days while  Congress is in session, bill becomes a law; if he does not act while Congress is not in session,  measure dies through a pocket veto 

 Any bill that appropriates money must pass through the  two-step process of authorization & appropriation

o Deviations from the conventional process

 Up to 20% of MAJOR bills bypass the committee  system (done through a discharge petition)

 1/3 of major bills are adjusted post-committee and before  the legislation reaches the floor by supporters of the bill to  increase the chances of passage

 Summit meetings between the president and congressional leaders may bypass or jump-start the normal legislative  process

 Omnibus legislation often requires creative approaches by  the leadership to guide the bill through the legislative  maze

∙ Omnibus legislation: large bills that often cover  

several topics & may contain extraneous, or pork

barrel, projects

o Differences in the House & Senate Legislative Process  The continuity of the membership & impact on the  rules

 Way in which bills get to the floor

 Structure of the floor process, including debate &  amendments

∙ Floor process is simpler & less structured in  the Senate

 The filibuster

∙ Senators can speak as long as they want and  offer any amendment to a bill

o Cloture: procedure through which the Senate  

can limit the amount of time spent debating a  

bill (cutting off a filibuster) if a supermajority of

60 senators agree

o Filibuster: tactic used by senators to block a bill

by continuing to hold the floor and speak until  

the bill’s supporters back down

∙ Before 1960s, senators held the floor for hours by  reading from phone books or recipe books

o Strom Thurmond (SC) holds record for 24 hours

& 18 minutes of continuous talking

∙ Today, filibusters are less common because the mere  mentioning of having one dissuades support from the bill

∙ Hold: objection to considering a measure on the  Senate floor

 House Rules

∙ House is a more orderly institution

∙ Three general types of rules

o Closed rules: conditions placed on a legislative  

debate by House Rules Committee prohibiting  

amendments to a bill

o Open rules: conditions placed on a legislative  

debate by the House Rules Committee allowing

relevant amendments to a bill

o Modified rules: conditions placed on a  

legislative debate by the House Rules  

Committee allowing certain amendments to a  

bill while barring others

- Oversight

o Congress plays a large role in overseeing the implementation of  law to make sure it is interpreted as intended

o Mechanisms that Congress may use to accomplish proper  implementation

 Power of the purse

∙ If something is not being implemented properly, they

can cut funding to that agency

 Congress can hold hearings & investigations

∙ Use media spotlight to focus attention on  

bureaucracy or overlooked issues

 Senate has specific control over executive functions  through the “advice and consent” responsibility  

provided in the Constitution

Chapter 12 Notes 

- Development of Presidential Power

o Four Facts

 Presidents matter

 Presidents get their power from a variety of sources  Presidential power has increased over time because  of America’s growth as a nation, its emergence as a  dominant actor in international politics, the  

expansion of federal government, and various acts  

of legislation that have given new authority to the  

president

 There are sharp limits to presidential power; they  are often forced to compromise or abandon plans in  the face of public, congressional, or foreign  

opposition

o Early years throughout WWI

 Monroe Doctrine

∙ Issues by James Monroe in 1813

∙ Stated America would remain neutral in wars  

involving European nations & that these nations must stop colonizing land in the Americas

 Presidents John Tyler & James Polk

∙ Admission of Texas into the Union after Mexican

American War

∙ Acquisitioned land that became Oregon, Washington, Idaho, and parts of Montana and Wyoming

 Abraham Lincoln

∙ Helped form the Republican party in the 1850s

∙ Raised a Union army and pulled the southern states  back into the Union following the Civil War

∙ Issued Emancipation Proclamation (freed slaves in  the South)

 Theodore Roosevelt

∙ Used Sherman-Antitrust Act to break up Northern  Securities Company (nationwide railroad trust)

∙ Increased regulation of businesses & expanded  

federal conservation programs

 Woodrow Wilson

∙ Increased government’s economic regulation with  Clayton Antitrust Act, Federal Reserve Act, first  

federal income tax, and the banning of child labor

∙ Created the League of Nations to help mitigate  

conflicts between European nations and America, but Congress refused to allow America to participate

o Great Depression through the present

 Roosevelt’s New Deal reforms created federal agencies  that helped Americans & imposed new corporate  

regulations

∙ Dwight Eisenhower, who initially opposed these  

reforms, continued presiding over the creation of new agencies & built the interstate highway system

 Lyndon Johnson created domestic programs (Urban  Development, Medicare, Medicaid, etc.) which helped  promote school funding, voting rights, and civil rights

 Johnson and Richard Nixon failed after sending over  thousands of soldiers in the Vietnam War, where 58,000  soldiers died, and Nixon signed a treaty that still did not  end the conflict but took American troops out

 Gerald Ford & Jimmy Carter faced worst economic  conditions since Great Depression due to increased energy  prices

∙ Neither were reelected because their plans to restore the economy & enhance energy sources failed

 Ronald Reagan negotiated important arms deals with the  Soviet Union

 George H.W. Bush removed Iraqi forces from Kuwait with  minimal American casualties

 Bill Clinton passed Free Trade Agreement, welfare reform,  arms control agreements, and successful peacekeeping  efforts by U.S. troops

∙ Had one of the longest periods of economic growth in U.S. history

 George W. Bush initiated tax cuts & education reforms, but  is remembered by his handling of 9/11 terrorist attacks &  the war on terror

 Barack Obama enacted health care reform, economic  stimulating legislation, financial regulations, and  

appointment of two SC justices

- President’s Job Description

o Constitutional authority (presidential): powers derived from the  provisions of the Constitution that outline that president’s role in  government

o Statutory authority (presidential): powers derived from laws  enacted by Congress that add to the powers given to the  president in the Constitution

o Head of the Executive Branch

 Vesting Clause: (2.1 of Const.) makes president both the  head of government & head of state

∙ Head of government: he/she has authority over the  

executive branch

∙ Head of state: he/she represents the country  

symbolically & politically

∙ Debates as to how expansive this clause should be  

interpreted to mean

 In charge of the implementation of laws

∙ Requires using judgment to translate legislative goals  programs, budgets, and regulations

 Can issue orders to government agencies to make  

significant policy changes

 Appointments

∙ Ambassadors, senior bureaucrats, members of  

federal judiciary (SC Justices)

∙ Controls about 8,000 positions

∙ Limit- Senate must confirm many presidential  apptmts., but has approved nearly all  

nominations

∙ Recess appointment: selection by president of a  person to be an ambassador or head of a department while Senate is not in session, bypassing Senate  approval; recess appointees only serve to the end of  congressional term unless voted in again by Senate  Executive order

∙ Executive order: proclamations made by the  president that change government policy without  congressional approval

o Ex: after Sandy Hook shooting, Obama signed  23 executive orders relating to gun control, yet  none of his significant proposals were enacted

∙ Emancipation Proclamation was considered an  executive order

∙ Congress can just as easily create new  legislation to overturn unfavorable executive  orders

 Commander-in-Chief

∙ President is in charge of military (day-to-day  operations), but Congress gets to declare war  o Even though the United States has been  

involved in hundreds of military conflicts,  

there have only been 5 declarations of  

war

∙ To restrain presidential war-making power, Congress  enacted the War Powers Resolution of 1973 (has only been invoked once & has never faced SC review)

o Some scholars argue it gives president  MORE power

o Forces presidents to gain congressional  

consultation/involvement before any large

scale military actions are taken

 Treaty making and foreign policy

∙ Treaty power is shared between Congress & the  President, but president has more of an advantage  (but still needs congressional approval)

∙ 2 strategies for avoiding congressional treaty  vote

o Announce that the US will voluntarily abide by  a treaty without ratification

o Structure a deal as an executive agreement  between executive branch & foreign  

government

 Executive agreement: agreement  

between the executive branch & foreign  

government, which acts as a treaty but  

does not require Senate approval

∙ Obama campaigned reducing military operations  abroad, but in reality, he expanded drone & Special  Forces attacks on terrorist organization members,  promoted American participation in Libya & Syria, &  sent forces to Crimea’s annexation

 Legislative power

∙ Lawmaking is a shared power between president &  Congress

∙ President can RECOMMEND policies to  Congress; specifically, through the State of the Union; he cannot propose legislation

o State of the Union: annual speech in which the  president addresses Congress to report on the  condition of the country and to recommend  

policies

∙ President can veto legislation; signed bills become  laws, vetoed bills go back to Congress for a vote to  override veto

o Pocket veto: president’s ability to veto a piece  of legislation by taking no action on it (possible only when Congress is not in session)

∙ Vetoes are more likely to occur under divided  government and much less likely under unified  government

∙ Veto power can facilitate compromise

o President Obama threatened to veto any  

legislation that repealed his health care act,  

even if it led to a shutdown, and it worked

 Other duties & powers

∙ Constitution gives president several additional  powers

o Authority to pardon people convicted of  federal crimes or reduce their sentences

 Cannot pardon anyone who was  

impeached & convicted by Congress

 Executive power

∙ Executive privilege: right of the president to keep  

executive branch conversations and correspondence  

confidential from the legislative & judicial branches

o United States v Nixon (Watergate scandal):  

Supreme Court ruled that executive privilege  

exists, but is not absolute

- The Presidency as an Institution

o Executive Office of the President

 Executive Office of the President (EOP): group of policy related offices that serve as support staff to the president ∙ Office of Management and Budget

∙ Office of the United States Trade Representative

 Helps president achieve their policy goals & get reelected  Most staff members are presidential appointees who retain  their positions only as long as the president who appointed them remains in office

∙ Most leave their positions due to pressures,  

long hours, and relatively low salaries

o Vice President

 Presides over Senate proceedings & casts tie-breaking  votes

 Becomes president if current president dies, becomes  incapacitated, resigns, or is impeached

o The First Spouse

 Typically one of president’s most important advisers

 Represent America at a wide array of international  events

 Limited policy-making roles; opponents argue that the first  spouse should not be involved in policy-making at all

 Examples

∙ Laura Bush made public appearances to support  

education & literacy programs, as well as HIV/AIDS  

treatment and prevention efforts

∙ Michelle Obama supported exercise & healthy eating  programs

o The president’s Cabinet

 Cabinet: group of 15 executive department heads who  implements the president’s agenda in their respective  

positions

 Chosen based on loyalty to the president & expertise (do  not need to be from the same party necessarily)

- Presidential Power Today

o Ambiguity of the Constitution creates opportunities for the  exercise of presidential power

o Presidents & unilateral action

 Unilateral action: any policy decision made & acted upon  by the president and presidential staff without the explicit  approval or consent of Congress

 Congress can, in theory, undo unilateral action, but  often do not due to the time, effort, and public  perceptions involved in doing so

 Ex: 2011 debate over military action in Syria

∙ Obama’s use of air strikes and limited deployment  did not violate the provisions of the War Powers Act;  no vote was ever taken to undo this despite many  

opposed this proposition

 Unitary executive theory: idea that the vesting clause of  the Constitution gives the president the authority to issue  orders & policy directives that cannot be undone by  Congress

 All presidents take unilateral action

∙ Bush’s wiretapping of American’s international phone conversations without obtaining warrants from the  

FIS Court

∙ Annexation of Texas

∙ Freeing of slaves in the Emancipation Proclamation ∙ Desegregation of the US military

∙ Initiation of affirmative action programs

∙ Creation of agencies similar to the Peace Corps

o Control over the interpretation and implementation of laws  Signing statement: document issued by the president when signing a bill into law explaining his/her interpretation of  the law, which often differs from the interpretation of  Congress, in an attempt to influence how the law will be  implemented

o Congressional responses to unilateral action

 After Obama announced plans to shut down Guantanamo  Bay detention center for terrorist suspects, Congress added an amendment stating that the prison would not close until the administration released plans explaining where the  prisoners would be sent, and the facility remains open to  this day

 Members of Congress also write laws that limit the  president’s authority over their implementation

 Congress’s ability to overturn presidential actions is not  explicitly stated in the Constitution

 Congress can remove president or vice president  through the impeachment process, but this is more  difficult than passing a law to undo unilateral action

∙ House must impeach president by majority  vote

∙ Senators hold a trial, followed by vote where  2/3 majority are needed

 Only two presidents have faced impeachment vote  (only in House, not approved by Senate, did not  actually get impeached)

∙ Andrew Johnson, 1866 (involved in political dispute  over administration over southern states post-Civil  

War)

∙ Bill Clinton, 1999 (lied under oath in sexual  

harassment lawsuit)

∙ (Richard Nixon resigned to avoid an impeachment  vote)

o President as politician

 Presidency is an inherently political office (much of  everything they do has to be approved by others &  compromised)

 Presidents must be aware of their actions & the potential  outcomes because they want to be reelected for a second  term

 Presidential approval rating: percentage of Americans who  think that the president is doing a good job in office ∙ Often determined by the shape of the economy

 President as party leader

∙ Unofficial head of his/her party & normally  picks the party’s day-to-day leadership

 Going Public

∙ Going public: president’s use of speeches and other  public communications to appeal directly to citizens  about issues the president would like the House or  

Senate to act on

∙ Broadcast & cable networks give prime-time slots to  presidential addresses & State of the Union speech

∙ While sometimes going public works, it more often is  ineffectual or counterproductive

o Rather than facilitating compromise, it may  

deepen existing conflicts

o Studies suggest that Americans ignore or  

reject a president’s attempts to go public  

(unless they are extremely popular)

∙ Presidents have difficulty shaping public opinion

o Studies show they are constrained in the area  

in which they govern

Chapter 13 Notes 

What is the Federal Bureaucracy?

- Bureaucracy: system of civil servants and political appointees who  implement congressional or presidential decisions; the “administrative  state” 

- Civil servants: employees of bureaucratic agencies within the  government

- Political appointees: people selected by an elected leader to hold a  government position

- What do bureaucrats do?

o Implement policies established by congressional acts or  presidential decisions

 Legislation only determines general guidelines;  

bureaucracy can develop specific policies and  

programs based on these guidelines

o Regulate behaviors

 Regulation: a rule that allows the government to exercise  control over individuals and corporations by restricting  

certain behaviors

∙ Ex: EPA’s Clean Power Plan (limits on carbon dioxide  

amounts that can be emitted from power plants)

 Notice-and-comment procedure: step in the rule-making  process in which proposed rules are published in the  

Federal Register and made available for debate by the  

general public

∙ Process is time-consuming

 Bureaucrats take pressure from elected officials when  

modifying regulations for two reasons

∙ Bureaucrats’ policy-making power may derive  

from a statute that members of Congress could

overturn

∙ Bureaucrats need congressional support to get

larger budgets & expand their agency’s  

mission

 Federal regulations affect daily life

∙ Gas mileage of cars, road materials, gas prices, work  

hours, medicine, student loans, etc.

 Regulations are often controversial due to trade-offs  

between incompatible goals

o Research, development, and new policies

 Government scientists work in medicine, astronomy,  

agriculture, and applied research using government funds

- Bureaucratic Expertise & its Consequences

o Bureaucrats often have an advanced degree & specialize in  certain policy areas

o Bureaucracy of experts is important for state capacity  State capacity: knowledge, personnel, and institutions that  the government requires to effectively implement policies o Red Tape & Standard Operating Procedures

 Issues with bureaucratic decisions

∙ Take too much time

∙ Rely on arbitrary judgements

∙ Have unintended consequences

 Red tape: excessive or unnecessarily complex regulations  imposed by the bureaucracy

 Standard operating procedures: rules that lower-level  bureaucrats must follow when implementing policies

 Ironically, ineptitude & most failure results from the  bureaucracy’s expertise

∙ Know things that elected officials do not &  

because of this, elected officials have a difficult

time evaluating the bureaucracy’s decisions

o Problem of Control

 Problem of Control: difficulty faced by elected officials in  ensuring that when bureaucrats implement policies they  follow these officials’ intentions but still have enough  

discretion to use their expertise

∙ Ex: Principal-agent game (an interaction between a  

principal who needs something done and an agent  

who is responsible for carrying out the principal’s  

orders

o Giving the agent very specific orders prevents  

the agent from acting based on expertise; but  

if the principal gives the agent freedom to  

make decisions based on expertise the  

principal has less control over the actions

 Sometimes bureaucratic actions result from regulatory  capture

∙ Regulatory capture: situation in which bureaucrats  

favor the interests of the groups they are supposed  

to regulate the expense of the general public

 Many bureaucrats come in & try to implement their own  ideas into their decisions and actions  

∙ Ex: Flint’s water supply- EPA wanted quick action to  

bypass the investigative procedures superiors  

wanted

How has the American Bureaucracy Grown?

- Beginning of the bureaucracy

o Only three executive branches from the Founding to 1828  State

 Treasury

 War

o Very small federal government, limited staff, and narrow range of tasks

o Election of Andrew Jackson introduced the spoils system (people  who had worked in Jackson’s campaign were rewarded with new  positions in the federal government)

 Many often lacked experience

 Procedures were developed to ensure that, even  without experience, they could know what to do

- Building a new American State: the Progressive Era

o Bureaucracy transformed after the Civil War, but more  significantly during the Progressive Era (1890-1920)

o Government’s regulatory powers were increased

 Ex: Sherman Antitrust Act of 1890, Pure Food & Drug Act of 1906, Federal Meat Inspection Act of 1906, expansion of  

Interstate Commerce Commission

o 1883 Pendleton Civil Service Act 

 Federal civil service: system created by the 1883 Pendleton Civil Service Act in which bureaucrats are hired on the  

basis of merit rather than political connections

 Reforms created a bureaucracy in which people were hired  for expertise & not having to fear being fired when a new  

president or member of Congress took office

- The New Deal, the Great Society, and the Reagan Revolution o The New Deal

 Government programs implemented during Franklin  

Roosevelt’s presidency

 Advocates favored more government involvement

 Goal- stimulate economic growth and job  

employment & formation of labor unions

 Controversies

∙ Republicans opposed New Deal reforms because they

thought federal government could not work  

efficiently & that the bureaucracy expansion would  

create a modern spoils system

∙ Southerners worried that fed gov’s expansion would  

endanger racial segregation  

o The Great Society

 Further expansion in size, capacity, and activities of the  bureaucracy

 Johnson & Congress passed many new programs

∙ Bilingual education, college student loans/grants,  

elementary schools, mass-transit, etc.

 Mixed success

∙ Voting & civil rights reforms ended “separate but  

equal” system

∙ Anti-poverty programs failed

o Reagan Revolution & Afterward

 Republican Senate, House, and presidential takeover in  1980

 However, 30 years after the roll back of federal  

government powers, its growth has not slowed (even with Republicans in power)

The Modern Federal Bureaucracy

- Structure of the federal government

o Executive Office of the President (EOP)

 Organizations that support the president & implement  

his/her policy initiatives

∙ Office of Management & Budget: an office within the  

EOP that is responsible for creating the president’s  

annual budget proposal to Congress, reviewing  

proposed rules, and performing other budget-related  

tasks

 Heads of this & 15 other organizations make up the  

president’s cabinet

 Below executive departments (but not subordinate to  them) are independent agencies

∙ Independent agencies: government offices or  

organizations that provide government services and  

are not part of an executive department

∙ Ex: Federal Reserve System, Federal Deposit  

Insurance Corporation, etc.

 2 lessons of divided executive power

∙ Fed government can handle an enormous  

range of functions

∙ Division of activities among executive  

departments & independent agencies does not  

always have an obvious logic

 Independent agencies have more freedom from oversight  and control by the president & Congress

o Size of the federal government

 Fed gov employs millions of people

∙ Dept. of Defense being the largest one

 Bureaucrats are budget maximizers

∙ Budget maximizers: bureaucrats who seek to  

increase funding for their agency whether or not that

additional sending is worthwhile

 Important points of being budget maximizers

∙ Increase in total federal spending masks the  

fact that many agencies see their budgets  

shrink

∙ Every year some government agencies are  

cutting spending as much as possible

∙ Every year some government agencies are  

eliminated

 Overall growth in government results from: the American  public’s demand for services

∙ Polls show little-to-no-evidence of demands for

less government because while they would  

prefer it, they do not support the large-scale  

budget cuts that would be put into action in  

order to achieve this goal

The Human Face of the Bureaucracy

- Civil service regulations

o Current civil service system  

 Sets out a job description & pay ranges for all federal jobs  Establishes tests that determine who is hired for low-level  clerical and secretarial positions

o These regulations provide job security (multi-step procedure  involved in firing someone)

o These regulations exist to prevent elected officials from  hiring & firing those in order to further implement their  own policy goals

 It is illegal to bring politics into hiring decisions

- Limits on political activity

o Hatch Act (1939): prohibited federal employees from engaging in organized political activities; employees can vote & contribute to  candidates but could not work for candidates or political parties

 Modified by the Federal Employees Political Activities Act (allowed federal employees to undertake a wider range of  political activities)

- Political appointees and the Senior Executive Service

o Some government agencies have the reputation of being  turkey farms

 Turkey farms: agencies to which campaign workers and  donors can be appointed in reward for their service  

because it is unlikely that their lack of qualifications will  

lead to bad policy

o Senior Executive Service (SES): top positions in agencies who are exempt from civil service restrictions

Controlling the Bureaucracy

- Bureaucrats hold significant power to influence policy

o Creates principal-agent game issue

o One strategy to eliminate this issue

 Take away discretion and give bureaucrats simple,  direct orders; however, this limits the positive  

influence of their expertise, leaving all the details to the enactors themselves

o Bureaucratic drift: bureaucrats’ tendency to implement policies  in a way that favors their own political objectives rather than  following the original intentions of the legislation

- Agency organization

o Officials who initiate the set-up of a new agency, they determine  where the agency is located within the federal government  structure and who runs it; this minimizes bureaucratic drift

 Ex: Obama administration’s response to the 2008-2009  was to form a new agency to help enforce new bank  

regulations & investigate consumer complaints about  

financial firms

- Monitoring

o Another way to prevent bureaucratic drift is to know what bureaucrats are doing or planning to do

o Oversight: Congressional efforts to make sure that laws are  implemented correctly by the bureaucracy after they have been  passed

o Monitor how bureaucrats are responding to presidential  directives

o Advance warning

 Elected officials and staff gain advance knowledge of  

bureaucratic actions through the notice-and-comment  

procedure (bureaucrats disclose proposed changes before  they take effect)

 Delay gives opponents the opportunity to disclose  proposed changes before they take effect & gives  

legislators time to revise or undo a regulation

o Investigations: Police Patrols and Fire Alarms

 Two types of oversight

∙ Police Patrols: method of oversight in which members

of Congress constantly monitor the bureaucracy to  

make sure that laws are implemented correctly

∙ Fire Alarms: Method of oversight in which members  

of Congress respond to complaints about the

bureaucracy or problems of implementation only as  

they arise rather than exercising constant vigilance

 Police Patrols

∙ Disadvantage- costly in terms of money & staff time

∙ Often times the results show that agencies are doing  

what they should be doing

 Fire Alarms

∙ Different forms

o Representatives meet with constituents who let

them know of any problems

o President may be contacted by lobbyists,  

corporate executives, and ordinary citizens  

with complaints

 Correcting violations

∙ Tactics used to bring a wayward agency into line

o Legislation or an executive order can clarify a  

directive or remove its discretion

o Tasks & programs can be moved to an agency  

more closely aligned with an elected official’s  

goals

o Political appointees within an agency can be  

replaced

o Agencies can be reorganized

∙ One significant difficulty in dealing with bureaucratic  

drift is the disagreement between members of  

Congress & the president about whether an  

agency is doing the right thing

o Without presidential support, Congress  

members need a two-thirds majority to  

impose corrections

o Without Congressional support, president

can only threaten to cut an agency’s  

proposed budget, change its home within  

the federal bureaucracy, or set up a new  

agency to do what the other agency  

refuses to do (carrying out such threats  

requires congressional approval)

∙ Agency can fend off elected officials’ attempts to  

take political control if it has a reputation for  

expertise

∙ Agencies can combat attempts to control their  

behavior by appealing to groups who benefit from  

agency actions

Chapter 14 Notes

The Development of an Independent and Powerful Federal Judiciary - Founders’ view of the Courts: weakest branch?

o Federalist 78- “beyond comparison the weakest branch of the  three departments of power”

o Antifederalist Papers- “Supreme Court under this constitution  would be exalted above all other power in the government and  subject to no control”

o Article III of the Constitution lays out powers of judiciary o Main disagreement- how independent the courts should be vis à-vis the other branches of government and how much power to  give to the courts; whether to give the judiciary some  

“revolutionary power” to strike down laws passed by Congress  that violated the Constitution (judicial review)

o Many details of judiciary were left to Congress (size, time &  place of meetings, and internal organization)

 Details outlined in the Judiciary Act of 1789

∙ Judiciary Act of 1789: law in which Congress laid out  

the organization of the federal judiciary. Law refined  

and clarified federal court jurisdiction and set the  

original number of justices at six; also created the  

Office of the Attorney General and established the  

lower federal courts

∙ District courts: lower-level trial courts of the federal  

judiciary system that handle most U.S. federal cases

∙ Appellate jurisdiction: authority of a court to hear  

appeals from lower courts and change or uphold the  

decision

 For 100 years, district courts each had one judge while  circuit courts had two SC justices and one district judge

∙ Today, separate judges are appointed to fill circuit  

courts (appeal courts)

 Court did not decide a single case in 1791-1792

- Judicial Review: Marbury v Madison

o Court started to gain more power with John Marshall as  chief justice (1801)

o Marbury v Madison: gave the SC the power of judicial review  Judicial review: the SC power to strike down a law or an  executive branch action that it finds unconstitutional (not  

addressed in the Constitution)

 What happened in this case? Feds lost election of 1800  to D-R Thomas Jefferson. Fed lame-duck Congress gave Fed president (Adams) the opportunity to appoint 42 new  

justices for DC and Virginia. New admin took over before  

he could finish appointing because John Marshall (sec of  

state and also confirmed chief justice of the Court) failed to

ensure all were appointed in time, and Jefferson ordered  

his new sec of state not to appoint the remaining  

commissions. Marbury did not receive his commission; to  

get out of the issue Marshall applied judicial review to help  Marbury receive his commission, but he did not win the  

battle

 Original jurisdiction: authority of a court to handle a case  first, as in the SC’s authority to hear disputes between two  states; however, the power is not exclusive to the SC and is applied to lower courts as well

o Judicial review in practice

 Was 50 years after Marbury v Madison that the SC used  judicial review again

 Judiciary Act of 1789 expanded SC power to rule on state  matters

 Relationship b/t state and national government largely  

defined by how active SC was in asserting judicial review

 In total, SC has struck down more than 180 acts of  

Congress (and about 1,400 state laws)

 When SC strikes down congressional or state law, it  

engages in constitutional interpretation & statutory  

interpretation

∙ Constitutional interpretation: process of determining  

whether a piece of legislation or governmental action

is supported by the Constitution

∙ Statutory interpretation: various methods and tests  

used by the courts for determining the meaning of a  

law and applying it to specific situations. Congress  

may overturn the courts’ interpretation by writing a  

new law; thus, it also engages in statutory  

interpretation

 Administrative law (third main area of law) sometimes  

requires the Court to assess the appropriateness of  

statutory interpretation by federal agencies responsible for  implementing laws

 Debates with judicial review

∙ Antidemocratic nature of it- why do we give 9  

unelected justices such power over elected  

representatives?

American Legal and Judicial System

- Court fundamentals

o People in the courtroom

 Plaintiff: person/party who brings a case to court

 Defendant: person/party against whom a case is brought

o Many, but not all cases are heard before a jury that decides the  verdict

o Often settled before coming to trial in a process known as plea  bargaining

 Plea bargaining: negotiating an agreement between a  plaintiff and a defendant to settle a case before it goes to  trial or the verdict is decided. In a civil case, usually  involves an admission of guilt & monetary agreement for  compensation; in a criminal case, this involves an  

admission guilt for a reduced charge or sentence

o Differences between Civil & Criminal Cases

 Standard of proof to determine outcome of case ∙ Civil- jury has to determine whether the  

“preponderance of evidence” (majority of evidence)  proves the plaintiff wins

∙ Criminal- defendant must be found guilty “beyond a  reasonable doubt”

 Where the burden of proof lies

∙ Civil- burden of proof may be on the plaintiff or the  defendant; the plaintiff may have to prove certain  

points and the defendant other points (more difficult) ∙ Criminal- assumption of “innocent until proven  

guilty” (state must prove the guilt of the defendant

 Type of civil suit

∙ Class-action lawsuit: case brought by a group of  individuals on behalf of themselves and others in the  general public who are in similar circumstances

o Common elements of the judicial system

 Adversarial court system

∙ Lawyers on both sides can present both their cases,  challenge testimony of opposing side, and try to  

convince that their version of events is the truth

 49/50 of the states and the federal courts operate  under common law

∙ Common law: law based on the precedent of  

previous court rulings rather than on legislation

∙ Louisiana practices civil law (based on a detailed  codification of the law that is applied to each specific  case)

 Precedent: legal norm established in court cases that is  then applied to future cases dealing with the same legal  questions

∙ Lower cases are bound by SC decisions where there  is clear precedent relevant for a given case

∙ Lower courts have considerable discretion in sorting  out which precedents are the most important

∙ SC has overruled more than twice as many decisions  since 1953 than in the previous 164 years

o Explained by the amount of precedents that  

could have been overturned in the first few  

decades of nation’s history

∙ Considerations before a case is filed

o Person bringing the case must have standing to

sue in a civil case

 Standing: legitimate justification for  

bringing a civil case to court

 Get more complex when government is  

involved

∙ Ex: Environment group challenged  

the Interior Dept.’s interpretation of

Endangered Species Act, SC  

declared group had no standing  

because there was no “imminent”  

injury to the group itself

o When bringing case to court, must choose a  

court that actually has the power to hear your  

case (jurisdiction)

 Jurisdiction: the sphere of a court’s legal  

authority to hear and decide cases

 Varies state-by-state

o Structure of the Court System and Federalism

 Court system operates on two parallel tracks within ∙ State and local courts

∙ Federal courts

 Within each of these courts, there are original  jurisdiction, appeals courts, and courts of special  jurisdiction

 State courts are entirely separate from federal  courts (with the exception of the SC)

 DIsctrict Courts

∙ Handle more than a quarter of a million filings a year ∙ 89 districts in 50 states; at least 1/state

∙ Two limited-jurisdiction district courts

o Court of International Trade (cases  

involving international trade & customs issues)

o U.S. Court of Federal Claims (handles  

claims for money damages against the United  

States, disputes over federal contracts,

unlawful “takings” or private property by  

federal government, and more)

 Appeals Courts

∙ Appeals courts: intermediate level of federal courts  that hear appeals from district courts; any court with  appellate jurisdiction

∙ Losing side in a federal case can appeal to the SC,  but most just go to the appeals courts

 Supreme Court

∙ Top of the federal court system; “Court of Last  

Resort”

∙ Applications and interpretations of the Constitution  are consistent nationwide

∙ Resolves conflicts between lower courts, state &  federal laws, and laws in different states

∙ Does not always have the final say, Congress and  president can also interpret Constitution

∙ Congress can fight back by passing a  

constitutional amendment (difficult and time

consuming process)

o Chisholm v Georgia: case upheld the right of a  

citizen in one state to sue another state in  

federal court; amendment to overturn this  

decision quickly happened in Congress and the  

Eleventh Amendment was passed

o How judges are selected

 National level- president makes appointments with  advice & consent of the Senate

 State-level judges

∙ Judges can be appointed for trial courts in five  

different ways

o Appointment by governor

o Appointment by state legislature

o Partisan elections

o Nonpartisan elections

o Governor makes appointment from list  

compiled by a nonpartisan screening  

committee (Missouri Plan)

∙ Interest groups often become involved by making  endorsements

∙ Elected judges are controversial because they  will be more subject to public opinion; but the  alternative is viewed as elitist

 Federal judges

∙ Constitution does not specify requirements for  serving on federal courts

∙ Do not even have to have a law degree

∙ President appoints judges with “advice & consent” of  Senate

 Role of the President

∙ Presidents have broad discretion over who to  nominate and have tried to influence the Court  by picking people who share their views

o Not always predictable as to how justices will  behave

o Justice Earl Warren was appointed by  

Republican president, but was one of the most  liberal chief justices of the last century

∙ President FDR

o Court struck down several legislative pieces of  his New Deal policies

o Proposed nominating a new judge for every  judge over 70 years old (6 new justices,  

building a 15-justice Court)

o Plan never was enacted

 Role of the Senate

∙ Senate rarely rejects nominees based on their  qualifications; rather, it does this for political reasons o Of 28 SC nominees rejected by Senate,  only 2 were turned down based on their  

qualifications

 Battles over Lower-Court Judges

∙ Battles between president nominations and  Senate confirmation has recently expanded to  district and appeals courts

∙ Senatorial courtesy: norm in the nomination of  district court judges in which the president consults  with his/her party’s senators from the relevant state  in choosing the nominee

∙ President typically shows more interest in appeals  court nominations

o “Blue slip process”: home state senators record their support or opposition to nominees on blue slips of paper

∙ Confirmation rate for federal judges has been  relatively stable in the past 35 years and average  time to confirm nominees has increased dramatically

∙ First draft of Constitution gave Senate full power to  

appoint nominees to the SC

Access to the Supreme Court

- The Court’s workload

o Docket of cases has increased dramatically, but most are written  off as frivolous; prevention of “frequent filers” by ordering that  the Court focuses on “petitioners who have no abused the  processes”

o Only issue half as many opinions as it used to (current 8 SC justice deck prevents SC from taking on cases due to chance of  deadlock decisions (4-4))

- Rules of access

o Four paths case may take to get to SC

 Article III specifies Court has original jurisdiction in  cases involving foreign ambassador or foreign  

countries

∙ Cases involving disputes between two or more states

over territorial or natural resource issues

 Appeal as a matter of right

 Appeal through certification (rarely used)

 Appeal through writ of certiorari (most common)

∙ Writ of certiorari: at least four of nine justices agree  

to hear a case that has reached them via an appeal  

from the losing party in a lower court’s ruling

- Court’s criteria

o Collusion, Standing, and Mootness

 Collusion

∙ Constitution limits the Court to hearing actual “cases  

and controversies”

∙ Court cannot offer advisory opinion about  

hypothetical situations

 Standing

∙ Party brining the case must have a personal stake in  

the outcome

∙ Court has discretion in deciding standing

∙ May often avoid controversial cases based on a  

“threshold” issue like standing and not have to  

decide the merits of the case

 Mootness

∙ Mootness: the irrelevance of a case by the time it is  

received by a federal court, causing the Court to  

decline to hear the case

o One guideline eliminates the largest number of cases

 If a case does not involve a “substantial federal  

question,” it will not be heard

 Conflict between appeals courts and court decisions  are most likely to produce a SC hearing

- Internal politics

o Cert pool: system initiated in the SC in the 1970s in which law  clerks screen cases that come to the SC and recommend to the  justices which cases should be heard

 Ultimate decision to hear a case is up to the judges, but  clerks have significant power in shaping the Court’s  

agenda

o Chief justice has an important agenda-setting power

 He/she decides the “discusslist” for a given day

o Cases that have generated a lot of attention and support from  interest groups are more likely to be heard

o Solicitor general: presidential appointee in the Justice Dept. who  conducts all litigation on behalf of the federal government before the Supreme Court and supervises litigation in the federal  appellate courts

Hearing Cases Before the Supreme Court

- Court is in session from first Monday in October through the end of  June

- Briefs

o Supreme Court only hears appeals (does not call  witnesses or gather new evidence)

o Interest groups often submit amicus curiae (85% of cases have  at least one)

 Amicus curiae: Latin for “friend of the court,” refers to an  interested group/person who shares relevant information  

about a case to help the Court reach a decision

- Oral argument

o Oral arguments: spoken presentations made in person by the  lawyers of each party to judge or an appellate court outlining the legal reasons their side should prevail

o Court is strict on time limits and uses system of three lights to  show the lawyers how much of their allotted 30 minutes is left o Justices often jump in immediately with questions during a  lawyer’s allotted time

o Cameras are not allowed in the Court room

- Conference

o Meetings conducted in secret after oral argument to vote on the  case

- Opinion writing

o If chief justice is in the majority opinion (which is most common), he chooses which justice will write the majority opinion;  

otherwise, most senior member will write

o Determinations on how a case will be assigned

 Chief justice will try to give each justice the same  number of cases

 Justices’ individual areas of expertise

o Strategy on the Court

 Opinions may be assigned based on the Court’s external  relations, internal relations, and the personal policy  goals of the opinion assigner

o Dissents

 Two points about the process of writing and issuing  

opinions

∙ Until 1940, there was a premium placed on  

unanimous decisions

∙ Dissents serve a purpose in allowing the  

minority view to be expressed and providing  

the basis for reversing a poorly reasoned case

Supreme Court Decision Making

- Influenced by two factors

o Legal (precedents of earlier cases and norms that justices must  follow the language of the Constitution)

o Political (Justice’s preferences/ideologies, stances on restrained  or activist roles, and external factors)

- Legal factors

o Precedent

 Does not determine the outcome of just any given case o The language of the Constitution

 Strict construction: way of interpreting a Constitution  

based on language alone

∙ Literalist view of the Constitution (sometimes called  

textualist)  

∙ Justices need not look no further than the actual  

words of the Constitution

∙ Justice Hugo Black was one of the most famous  

literalist advocates (“Congress shall make no law  

abridging the freedom of speech,” means (in his  

eyes) literally NO law)

∙ Critics point out that Constitution is silent on  

many important points (privacy, etc.) and  

Founders could not have anticipated legal  

implications of technology; also, many words in

the Constitution are intentionally vague

∙ Original intent: theory that justices should surmise  

the intentions of the Founders when the language of  

the Constitution is unclear

 Living Constitution: way of interpreting the Constitution  that takes into account evolving national attitudes and  

circumstances rather than the text alone

∙ Supporters argue strict constructionism makes the  

nation “a prisoner of the past”

- Political factors

o Political Ideology and attitudes

 Attitudinalist approach: way of understanding decisions of  the SC based on the political ideologies of the justices

∙ Liberal judges civil liberties, often pro-choice,  

environmental protective measures, affirmative  

action, etc.

∙ Conservative judges state regulation of private  

conduct, prosecutors over defendants, often pro-life,  

and color-blind policy on race

o Strategic model

 Strategic approach to understanding how decisions are  made focuses on

∙ Justice’s calculations about preferences of  

other justices, president, and Congress

∙ Choice the other justices are likely to make

∙ Institutional context within which they operate  Median voter has very influential role on the Court  

(between liberal and conservative)

∙ Research shows that at least one justice switches  

his/her vote at some stage in the process

o Separation of powers

 Judicial restraint: idea that the SC should defer to the  democratically elected executive and legislative branches  of government rather than contradicting existing laws

 Judicial activism: idea that the SC should assert its  

interpretation of the law even if it overrules the elected  executive and legislative branches of government

 Some argue that these behaviors don’t matter because  they Court usually follows public opinion and rarely plays a  lead role in promoting policy change

∙ Research done showed that 3/5 of SC decisions were consistent with public opinion

∙ Plenty examples of when Court has stood up for  

unpopular views (banning prayers in schools,  

allowing flag burning, etc.)

o Judicial Activism

 Media wrongly asserts that liberal judges are  

“activist judges”

 Current court is conservative, yet activist

 Popular media description of activism and restraint

∙ If you like a decision, it is restrained; if you do not, it  

is activist

∙ Ex: Bush v. Gore

o Outside influences: interest groups and public opinion

 Lobbying and fundraising are irrelevant in Court

 Court expresses public preferences in several indirect ways ∙ Public elects president and Senate; president  

& Senate appoint justices; therefore, Court  

should reflect views of the public

∙ When the public has a clear position on an issue  

before the Court, the Court usually tends to agree  

with the public

o “Public mood” and Court decisions are  

mostly consistent

o Ex: Court switching during the New Deal era in  

the 1930s after standing in the way for four  

years

o Occasionally shift views to reflect international  

opinion

 Ex: striking down the death penalty for  

minors in 12 states

o Shifting the time of the decision to please the  

public

Role of the Court in our Political System

- Compliance and implementation

o In most cases that involve a broad policy established in  Court, the Court relies on the president for enforcement - Relations with other branches

o Resistance from other branches

 President & Congress fight back when they think Court is  exerting too much influence

 President & Congress can counter Court’s influence by  failing to enforce a decision with effort

 Most commonly, Congress will simply pass legislation that  overturns the decision

o Self-imposed restraint

 Court often refuses to act on “political questions” (outside  judicial domain and should be decided by elected officials)

 Court reserves the right to determine what a  

“political question” is (an important part of its  

policy-making power)

o Court’s Multifaceted Role

 Judicial branch is a basic paradox

∙ Can be seen as either the least or most  

democratic branch

 Least democratic view

∙ Federal judges and state/local judges are unelected  

and are not accountable to the voters

 Most democratic view

∙ Cases are brought to the courts from the people, and

the court must hear these cases if they follow the  

criteria

Chapter 17 Notes 

What is Foreign Policy?

- Foreign policy: government actions involving countries, corporations,  groups, and individuals that lie outside America’s borders

o Military operations, economic interactions, human rights policies, environmental agreements, foreign aid, democracy assistance,  interventions in civil wars and other conflicts, and international  efforts to limit WMDs and nuclear weapons

- Foreign policy principles and perspectives

o Should we act alone?

 Unilateral action: independent acts of foreign policy  

undertaken by a nation without the assistance or  

coordination of other nations

 Multilateral action: foreign policy carried out by a nation in  coordination with other nations or international  

organizations (more common)

o Should we intervene?

 Isolationism: idea that a country should refrain from  

involvement n international affairs

 Internationalism: idea that a country should be involved in  the affairs of other nations, out of both self-interest and  

moral obligation

 Isolationists believe

∙ Avoid making alliances and agreements with  

other nations

∙ Concentrate on defending America’s borders

∙ Let other countries work problems out on their  

own

 Internationalists believe

∙ Establish agreements and alliances

∙ Intervene in international crises

∙ Solve humanitarian crises for moral obligations o Are we only out for ourselves?

 Realism: idea that a country’s foreign policy decisions are  motivated by self-interest and the goal of gaining more  

power

 Idealism: idea that a country’s foreign policy decisions are  based on factors beyond self-interest, including upholding  important principles or values

∙ Nation building: use of country’s resources, including  the military, to help create democratic institutions  

abroad and prevent violence in other countries

 Constructivism: idea that foreign policy is shaped by how a  state’s leaders define the national interest, ideology, and  other factors

 Syrian War

∙ Realist John Mearsheimer argued in 2014 that there  

was no need to intervene because America had no  

compelling interest, and, in fact, it would be costly in  

terms of money and lives

∙ Idea that America is morally obligated to help  

fight cruel governmental treatment in Syria is  

idealistic

- History of American Foreign Policy

o Founding to Present

 Until America’s entry into WWI in 1917, American  foreign policy was largely isolationist

∙ Monroe Doctrine: American policy initiated under  

President James Monroe in 1823 stating that the U.S.  

would remain neutral in conflicts between European  

nations and that these nations should stop  

colonizing/occupying North & South America

 Policy was never completely isolationist, even in the early  years

∙ Built Panama Canal

∙ Continued trading with European nations & others

 U.S. never joined the League of Nations, an  

organization similar to United Nations that was a part of  the treaty ending WWI, because the Senate rejected joining  The rise of Internationalism

∙ Transition in foreign policy during WWII

o America joined the Allied Powers—the  

United States, Great Britain, the Soviet  

Union, and other countries

 The Cold War

∙ Cold War: period of tension and arms competition  between the United States and Soviet Union that  lasted from 1945-1991

∙ Countries disagreed over the reconstruction of  Germany and reconstruction of countries that had  been occupied by Germany

∙ American diplomat George F. Kennan argued for  containment

o Containment: important feature of American  Cold War policy in which the U.S. used  

diplomatic, economic, and military strategies in an effort to prevent the Soviet Union from  

expanding its influence

∙ Several measures to build/strengthen alliances o Marshall Plan 

 Series of aid & development programs to  

restore Western European economies  

devastated during WWII

o Formation of the World Bank

o IMF

o Formed alliances with other countries (NATO)  (1949)

 Soviets formed Warsaw Pact with  

Eastern European nations

o 1945 creation of UN

 To prevent wars by facilitating  

negotiations and sending military forces  

to stop conflicts

∙ Korean War was motivated by the idea of  

containment

o Supported brutal leaders of other  

countries for the sake that they would  

serve as valuable allies against Soviets

∙ Maintained large military forces and assembled  nuclear weapons

o Mutually assured destruction: idea that two  nations that possess large stores of nuclear  

weapons would both be annihilated in any  

nuclear exchange, thus making it likely that  

either country would launch a first attack

o War nearly broke out with the Cuban Missile  Crisis (where Soviets tried to site nuclear  

missiles in Cuba)

∙ Early 1960s, American became involved in  Vietnam War believing that North Vietnam’s  desire to take over South Vietnam was part of  the Soviet’s plan for world domination

o Domino theory: idea held by American foreign  policy makers during Cold War that the creation of one Soviet-backed communist nation would  

lead to the spread of communism in that  

nation’s region

 Proved inaccurate- the Vietnam War was  

a civil war

∙ Early 1970s, President Richard Nixon began a  process of détente with the Soviet Union

o Détente: approach to foreign policy in which  cultural exchanges and negotiations are used  

to reduce tensions between rival nations

 SALT I- limited growth of U.S./Soviet  

missile forces

∙ Increasing tensions

o Recession in America after OPEC raised  oil prices in 1979

o Iran hostage crisis, where Iranian students & government held American embassy staff  

hostage for over 14 months

o Soviet support of Sandinista rebellion in  Nicaragua and invasion of Afghanistan in  

1980

∙ Change begins

o Mikhail Gorbachev became Soviet president in  1985 and his policies of glasnost (openness)  

and perestroika (restructuring) dissolved the  

Warsaw Pact and divided Soviet Union into 15  

countries, ending Cold War

o Continued disagreements to today, but little  chance of direct conflict

 After the Cold War: Human rights, trade, and terrorism ∙ United States became more involved in  humanitarian and nation-building efforts in  Somalia, Bosnia, and Kosovo

o Soft power- America can have influence over  other nations through increased economic

actions and cultural ties, rather than through  

military force

∙ New security threats emerged from Al-Qaeda, which  

organized several attacks on Americans

o After 9/11, President George W. Bush  

announced the Bush Doctrine

 Bush Doctrine: foreign policy under which

the United States would use military  

force preemptively against threats to its  

national security

o Barack Obama’s presidency retracted many of  

these, but later on his use of drone attacks and

with ISIL conflicts seemed to correspond with  

Bush-era policies

Foreign Policy Makers

- President and the executive branch

o President= dominant actor in foreign policy

 Negotiate treaties

 Change policy through executive orders

 Mobilize public opinion

 Shape foreign policy through appointments

 Commander-in-Chief

o National Security Council (NSC): within the EOP an agency that  advises the president on matters of foreign policy

o Department of State

 Principal foreign policy department in the executive branch  Head = Secretary of State 

∙ Acts as the official spokesperson for the United  

States in foreign relations and is an important advisor

to the president

 Interact with other countries extensively

o Department of Defense

 Carries out military actions as ordered by civilian  

authorities ranging from full-scale wars to smaller  

operations

 Military’s role not limited to use of force

∙ Deliver humanitarian aid

∙ Help American citizens evacuate areas of conflict

∙ Advises & trains armed forces in other countries

 Civilian control: idea that military leaders do not formulate  military policy but rather implement directives from civilian leaders

o Department of Homeland Security

 Formed after 9/11 attacks

 Combined the Coast Guard, TSA, Border Patrol, and several other agencies

 Secure America’s borders, prevent future attacks, and  coordinate intelligence gathering

 Impose large societal costs

o Intelligence Agencies

 Responsible for government intelligence gathering

 Collect information from public/semipublic sources

 Ex: CIA, NSA

o How much foreign policy power does the president have?  Some argue that the broad powers allow for  

“imperial presidents” (implement preferred foreign  

policies without Congressional approval)

 Power lies in the theory of unilateral presidential power ∙ Constitution does not set explicit limits on  

what chief executive can/cannot do

∙ Presidents sometimes pull back from a new foreign  

policy if they do not believe there will be much  

congressional support

o Ex: President Clinton’s Kyoto Protocol  

(international treaty for combating climate  

change)

- Congress

o Committee on Foreign Affairs (House) & Foreign Relations  Committee (Senate)

 Write legislation that deals with foreign policy

 Hold hearings in which they pose questions to foreign  policy experts

o House & Senate have an Intelligence Committee that oversees  covert operations and actions of the CIA, NSA, and other  agencies

o Three types of influence over foreign policy

 Power of the Purse

 Power to approve treaties and confirm  

appointments of senior members of the president’s  foreign policy team

 Power to declare war on other nations

o War Power Resolution (1973)- designed to limit president’s war making powers and give Congress a way to reverse decisions - Federal courts

o Weigh in on foreign policy through judicial review

 Ex: SC decisions forced the Bush administration to revise  policies of holding terror suspects indefinitely without  

charges

- Groups outside the federal government

o Interest groups

 American-Israel Public Affairs Committee (AIPAC),  one of the most powerful interest groups in  

Washington, lead opposition to Iran regarding its  nuclear weapons program (unsuccessful)

 Pits business interests against other concerns such as  national security

 Focus on publicizing international events in hope of  prompting citizens to demand government action

∙ Ex: Syrian refugees

o The Media

o Public Opinion

 American public opinion has consistently been opposed to  allowing Syrian refugees to live in the United States  One reason that foreign policy does not mirror  public opinion

∙ Most politicians have political goals other than  

winning reelection, including affecting America’s  

relations with other nations

 Many Americans know little about other nations,  meaning that public opinion is minimally decisive in  foreign policy

o Intergovernmental Organizations, Nongovernmental  Organizations, and International Organizations

 International organizations (IGOs): organizations that seek  to coordinate policy across member nations

∙ Associations of sovereign states

 Nongovernmental organizations (NGOs): groups operated  by private institutions (rather than governments) to  promote growth, economic development, and other  agendas throughout the world

∙ Private organizations

 Goals of IGOs and NGOs

∙ Promoting global economic development and  growth

o World Bank: one of the largest IGOs that  

provides financial support for economic  

development projects in developing nations

o International Monetary Fund (IMF): IGO that  

helps stabilize the international monetary  

system, improve economic growth, and aid  

developing nations

∙ NGOs strive

o To provide humanitarian relief

o Promote human rights

 Amnesty

o Help build democracies

Tools of Foreign Policy

- Diplomacy 

o Process of using personal contact and negotiations with national  leaders and representatives to work out international  

agreements or persuade other nations to change their behavior - Trade and Economic Policy

o Foreign trade is a critical component of the American economy o Main tools

 Tariffs

∙ Tariff: tax levied on imported and exported goods

 Trade agreements

o By adjusting tariff rates, government can affect domestic  industries

 High tariffs on imports = charge lower prices

 Low tariffs on exports = help sell overseas

o For a while, United States and other nations have been lowering  tariffs and establishing free-trade zones (NAFTA and CAFTA)  World Trade Organization: international organizations  

created in 1995 to oversee trade agreements between  

nations by facilitating negotiations and handling disputes

o Most-favored-nation status: standing awarded to counties with  which the U.S. has good trade relations, providing the lowest  possible tariff rate

o Trade agreements generally split party coalitions and plays a  pivotal role in U.S. elections

o Trade

 Use free-trade to bargain with countries for  

concessions in economic policy areas or cement  

international alliances

 Strengthen economic ties with Asian nations to  

counter increased economic and military power in  

China

o Economic policies can be used to induce or change the  behavior of other countries

 Economic sanctions: penalties applied by one country or  group of countries on another, usually in the form of tariffs  of other trade barriers

 UN Security Council ordered economic sanctions against  Iran to force the nation to stop enriching uranium

- Foreign Aid

o Money, products, or services given to other countries

o Sometimes aim to reflect desires of providing basic assistance to  other countries

- Alliances and Treaties

o Treaty is an agreement between nations to work together on  economic or security issues

o Alliance is an agreement that commits nation to security  guarantees

- Military Force

o Fights wars to further their foreign policy goals

o Military force is not all-powerful

 Despite decades of combat operations in Afghanistan, the  Taliban still control most of Afghan territory

Chapter 11 Notes

POLS-Y 103

Yellow = Vocab Term

Pink = Important Term

Bold = Important Point

Congress

- What Congress Does?

o Congress & the Constitution

 “first branch” in earlier decades

 Bicameralism: the system of having two chambers within  one legislative body (U.S Congress having the House & the  Senate)

 Senators serve for 6 years; Representatives serve for 2  years

 Members are expected to encompass the common good &  represent their local constituents

 Founders viewed the Senate as the institution for  larger debate & one that would speak more on  

behalf of the national interest (House=more  

responsive/passionate)

 1913: 17th Amendment allowed for direct election for  

Senators

 Only one-third of the 100 Senate seats up in each election  Relationship b/t President & Congress

∙ Pork barrel: legislative appropriations that benefit  

specific constituents, created with the aim of helping  

local representatives win reelection (Congress better  

suited for this)

∙ President assumed more of a central role after the  

increasing importance of national security following  

the wars

o Congress & People

 People tend to hate Congress as a whole, but like  their individual representatives

∙ In a poll asking whether people have a higher opinion

of root canals or Congress, root canals won

 Types of representation

∙ Descriptive representation

o Descriptive representation: when a member of  

Congress shares the characteristics of his/her  

constituents

o Related to the perceived responsiveness of a  

member of Congress

∙ Substantive representation

o Substantive representation: when a member of

Congress represents constituents’ interests &  

policy concerns

 Trustee: member of Congress who  

represents constituents’ interests while  

also taking into account national,  

collective, and moral concerns that  

sometimes cause the member to vote  

against the preference of a majority of  

constituents

 Delegate: member of Congress who  

loyally represents constituents’ direct  

interests

∙ Delegates do what the voters want

 Politico: member of Congress who acts as

a delegate on issues that constituents  

care about and as a trustee on more

complex or less-salient issues

 Role of the Constituency

∙ How do districts vary?

o Size

o Who lives there

o What they want from government

∙ Legislators reflect the central tendencies of their  districts

∙ Despite varying differences, voters wants many of  the same things: healthy economy, safe country,  

good schools, effective health care

∙ Constituents want their elected officials to do  

casework for the district & showed little interest in  

having the representatives “spend more time in  

Washington”

o Casework: assistance provided by members of  

Congress to their constituents in solving  

problems with the federal bureaucracy or  

addressing other specific concerns

o Members of Congress want to Keep their Jobs

 Political Scientist David R. Mayhew argued that reelection  must come first; if members do not maintain their seats,  then any of their policy goals are essentially worthless

 Electoral connection: idea that congressional behavior is  centrally motivated by members’ desire for reelection  Incumbents work toward reelection

∙ Mayhew outlines three ways for members to promote reelection

o Advertising (appeals or appearances that get  name in front of the public)

o Credit claiming (member takes credit for  

something of value to the voter) (ex: pork  

barrel politics)

o Position taking (public statement about a topic  of interest to constituents or interest groups)

∙ Five costs on focusing on reelection

1. Perception that Congress gives itself  

too many special privileges at securing

reelection

2. Evidence shows that some voters  

question the value of pork barreling

3. Members’ desire to please means that  Congress has a difficult time refusing  

demands, which leads to contradictory  

legislation/policies

4. Being an expert on getting reelected  

granting them some form of  

independence from their party; creates

difficulties between Congress &  

congressional leaders

5. Time spent actively campaigning for  

reelection takes away from the  

responsibilities of enacting laws &  

overseeing their implementation

 The Incumbency Advantage

∙ Senator Tammy Baldwin (D-WI) was elected to serve  in the House for five years & was the first lesbian  woman elected to the Senate in 2012

∙ Incumbency advantage: relative infrequency with  which members of Congress are defeated in their  attempts for reelection

o If member is reelected with less than 55% of  the vote, he is said to have a marginal seat 

o Past two decades, reelection rates have been  record high levels (95-98% of House  

incumbents winning)

 In the District: Home Style

∙ One explanation for this advantage is rooted in the  diverse congressional districts & states

∙ Members are spending more time at home than in Washington in order to get a better  

understanding of constituent wants/needs  Campaign Fundraising

∙ Raising money is the key to staying in office o At least $1 million to pose a challenge

∙ Incumbents spend up to 3x more than  

challengers

∙ Raising enough money also wards off potential  challengers

 Constituency Service

∙ “Work their districts”: taking every opportunity to  meet with constituents

∙ Many House members claim to be in the “Tuesday to  Thursday Club,” meaning they are in Washington  during the middle of the week, and home for the rest  of it

 National Forces in Congressional Elections

∙ Because Congressional politics tend to be  local, voters are usually not influenced by the  president or the national parties

∙ Many Congress members distance themselves from  the national party

o 2008: Republicans backlashed on Bush when  his approval ratings were at record lows. They  

avoided being seen with him & they were able  to maintained their possession of the House in  2012 when Obama was elected

 Redistricting Connects Representation & Elections ∙ District boundaries determine who is able to vote in a congressional race; lines are re-drawn every 10 years o Redistricting: state legislatures re-drawing the  geographic boundaries of legislative districts

∙ Apportionment: process of assigning the 435 seats in the House to the states based on increases or  

decreases in state population

o State growing the fastest gain seats & vice  

versa

∙ The Senate is not redistricted because regardless  each state gets two members

∙ Districts should

o Be roughly equal in population

o Reflect “communities of interest”

o Be compact (no bizarre shapes)

o Be continuous in shape

 Partisan Redistricting

∙ Sometimes in redistricting, a reduction in the number of seats can lead to districting plans that put two

incumbents in one district, which means they  

must run against one another

o Both parties use this technique to knock  

out the other party & have a partisan  

advantage

∙ Gerrymandering: attempting to use the process of re drawing district boundaries to benefit a political  

party, protect incumbents, or change the proportion  

of minority voters in a district

 Racial Redistricting

∙ Redistricting has been utilized to create majority  

populations of minority voters

o Ex: North Carolina created district boundaries  

that looked like inkblots to create these  

districts; it was declared unconstitutional by  

the U.S. Supreme Court

o Dozens of lawsuits about racial redistricting

∙ Race cannot be the predominant factor in  

drawing congressional district lines, but it can  

be one of the factors

 Responsibility-Responsiveness Dilemma

∙ Congress comes off as small-minded due to the  

duality of being responsible for national policy  

making and responsiveness to local constituencies

∙ Choices between responsible and responsive

∙ Gridlock: an inability to enact legislation because of  

partisan conflict within Congress or between  

Congress & the President

- Structure of Congress

o Informal structures

 Norms that provide informal structure for the functioning of Congress

∙ Universalism: the norm stating that when benefits  

are being divided up they should be awarded to as  

many districts & states as possible

∙ Logrolling: form of reciprocity in which members of  

Congress support bills that they otherwise might not  

vote for in exchange for other members’ votes on  

bills that are very important to them

o “Scratch my back, I’ll scratch yours”

o Earmarks: federally funded local projects  

attached to bills passed through Congress

∙ Specialization: (important for efficient Congress  

operation & member reelection) by specializing in a  given issue, members provide valuable information  to the institution as a whole & have more credit  

claiming powers

∙ Seniority: (serves individual & institutional purposes)  members with the longest services on a committee  will chair the committee

o Formal structures

 Parties & Party leaders

∙ Importance of parties in solving collective action  problems in Congress

o Without parties, members of Congress would  

all identify as individual agents & it would  

become more of a fractured/decentralized  

structure

∙ Speaker of the House: head of the majority party and influences the legislative agenda, committee  

assignments, scheduling, and strategies

o 2007, history was made when reps elected  

Nancy Pelosi as first woman Speaker of the  

House

∙ Majority leader: elected head of party holding the  majority of seats in the House; oversees the whip  

system

o Whip system: organization of House leaders  

who work to disseminate information and  

promote party unity in voting on legislation;  

has three functions

 Information gathering

 Information dissemination

 Coalition building

o If a vote looks close, whips try to persuade  

members to support the party’s position

∙ Minority leader: elected head of the party holding the minority of seats in the House

∙ Senate leadership does not have as much power as  the leadership of the House (individual Senators have more power than individual House members due to  Senate’s rule of unlimited debate)

o Senate has whip system, but not developed or  

utilized as House’s system

o Vice President=Leader of the Senate; but  only appears in chamber when needed to cast  

a tie-breaking vote

∙ President pro tempore: largely symbolic position  usually held by the most senior member of the  majority party in the Senate; presides over Senate when VP is not there, but does not have any  real power

 Role of Parties & Conditional Party Government ∙ U.S. Congressional parties are very weak in  comparison to parliamentary systems

∙ Partisanship reached highest levels in the post-World  War II era

o About 70% of all roll call votes were party votes  Roll call votes: recorded vote on  

legislation; members may vote yes, no,  

abstain, or present

 Party votes: vote in which the majority of  

one party opposes the position of the  

majority of the other party

∙ Party unity: extent to which members of Congress in  the same party vote together on party votes

∙ Parties in Congress now are more polarized  than at any point in U.S. history

∙ Leaders must have the ability to bargain &  

compromise

o Find solutions where none appear possible

o Do favors for members to engender a feeling of personal obligation to the leadership when it  

needs a key vote

∙ Party’s most powerful positive  

incentive=campaign finance

∙ Speaker Boehner disciplined four Tea Party House  Republicans by removing them from their  

committees because he had tired of the  

“brinkmanship” approach to budget politics favored  by Tea Party representatives; Boehner was unable to  prevent a government shutdown in 2013 and was  forced to resign by 2015

 The Committee System

∙ Four types of committees

o Standing

o Select

o Joint

o Conference

∙ Standing committees: committees that are  

permanent parts of the House/Senate structure,  

holding more importance & authority than other  

committees

∙ Select committees: typically address a specific topic  for one or two terms; mostly serve to collect  

information, provide policy options, and draw  

attention to a given issue

∙ Joint committees: committees that contain members  of both the House & Senate but have limited  

authority

∙ Conference committees: temporary committees  

created to negotiate differences between the House  

& Senate versions of a piece of legislation that has  

passed through both chambers

∙ Committee system creates division of labor that  

helps members get reelected

∙ Distributive theory: idea that members of Congress  

will join committees that best serve the interests of  

their district and that committee members will  

support one another’s legislation (norm of  

reciprocity)

∙ Informational theory: idea that having committees in  Congress made up of experts on specific policy areas

helps to ensure well-informed policy decisions

o Committee system does not exist solely to  

further members’ electoral goals, but it often  

happens anyways

∙ Committees serve the need of the majority party

o Rules Committee: important to the majority  

party because it structures nature of debate in  

the House by setting length of debate and  

type/number of amendments to a bill that will  

be allowed

 Decisions=”rules”

 Congressional staff

∙ Total number of congressional staff is more  

than four times as large as it was 50 years ago

∙ This increase is to reduce the gap between the  

policy-making capability of Congress & the president

- How a Bill Becomes a Law

o Conventional process

1. Member of Congress introduces the bill

2. Subcommittee & committee craft the bill

3. Floor action on the bill takes place in the first  chamber (House or Senate)

4. Committee & floor action takes place in the  second chamber

5. Conference committee works out any differences  between the House & Senate versions of the bill  (if two chambers pass the same version, steps 5  & 6 are not necessary)

6. Conference committee version is given final  approval on the floor of each chamber

7. President either signs or vetoes the final version 8. If bill is vetoed, both chambers can attempt to  override it with two-thirds vote in both chambers o In more detail

 Only Congress can introduce a bill

 The bill is then sent to the relevant committee (House &  Senate rules specify committee jurisdictions)

 Chair then refers bill to a relevant subcommittee where  much of the legislative work is done

∙ 80-90% of bills die at this stage of the process

∙ Markup: one of the steps through which a bill  

becomes a law, in which the final wording of the bill  is determined

 When it makes it to the floor, the House bill manager  proceeds debate according to time limits & rules governing the nature of amendments; Senate debate is more open  and unlimited in most circumstances

 When debate is completed, voice vote is taken

 Modifications of the Bill are transferred back and forth  between the two houses

 Common way to resolve differences on major legislation is  through conference committee of key players in the House  & Senate

 Bill is then sent to president

∙ May veto (rejection of bill passed by Congress) within ten days

∙ Bill dies if 2/3 of both House & Senate do not vote to  override the veto

∙ If President does not act within 10 days while  Congress is in session, bill becomes a law; if he does not act while Congress is not in session,  measure dies through a pocket veto 

 Any bill that appropriates money must pass through the  two-step process of authorization & appropriation

o Deviations from the conventional process

 Up to 20% of MAJOR bills bypass the committee  system (done through a discharge petition)

 1/3 of major bills are adjusted post-committee and before  the legislation reaches the floor by supporters of the bill to  increase the chances of passage

 Summit meetings between the president and congressional leaders may bypass or jump-start the normal legislative  process

 Omnibus legislation often requires creative approaches by  the leadership to guide the bill through the legislative  maze

∙ Omnibus legislation: large bills that often cover  

several topics & may contain extraneous, or pork

barrel, projects

o Differences in the House & Senate Legislative Process  The continuity of the membership & impact on the  rules

 Way in which bills get to the floor

 Structure of the floor process, including debate &  amendments

∙ Floor process is simpler & less structured in  the Senate

 The filibuster

∙ Senators can speak as long as they want and  offer any amendment to a bill

o Cloture: procedure through which the Senate  

can limit the amount of time spent debating a  

bill (cutting off a filibuster) if a supermajority of

60 senators agree

o Filibuster: tactic used by senators to block a bill

by continuing to hold the floor and speak until  

the bill’s supporters back down

∙ Before 1960s, senators held the floor for hours by  reading from phone books or recipe books

o Strom Thurmond (SC) holds record for 24 hours

& 18 minutes of continuous talking

∙ Today, filibusters are less common because the mere  mentioning of having one dissuades support from the bill

∙ Hold: objection to considering a measure on the  Senate floor

 House Rules

∙ House is a more orderly institution

∙ Three general types of rules

o Closed rules: conditions placed on a legislative  

debate by House Rules Committee prohibiting  

amendments to a bill

o Open rules: conditions placed on a legislative  

debate by the House Rules Committee allowing

relevant amendments to a bill

o Modified rules: conditions placed on a  

legislative debate by the House Rules  

Committee allowing certain amendments to a  

bill while barring others

- Oversight

o Congress plays a large role in overseeing the implementation of  law to make sure it is interpreted as intended

o Mechanisms that Congress may use to accomplish proper  implementation

 Power of the purse

∙ If something is not being implemented properly, they

can cut funding to that agency

 Congress can hold hearings & investigations

∙ Use media spotlight to focus attention on  

bureaucracy or overlooked issues

 Senate has specific control over executive functions  through the “advice and consent” responsibility  

provided in the Constitution

Chapter 12 Notes 

- Development of Presidential Power

o Four Facts

 Presidents matter

 Presidents get their power from a variety of sources  Presidential power has increased over time because  of America’s growth as a nation, its emergence as a  dominant actor in international politics, the  

expansion of federal government, and various acts  

of legislation that have given new authority to the  

president

 There are sharp limits to presidential power; they  are often forced to compromise or abandon plans in  the face of public, congressional, or foreign  

opposition

o Early years throughout WWI

 Monroe Doctrine

∙ Issues by James Monroe in 1813

∙ Stated America would remain neutral in wars  

involving European nations & that these nations must stop colonizing land in the Americas

 Presidents John Tyler & James Polk

∙ Admission of Texas into the Union after Mexican

American War

∙ Acquisitioned land that became Oregon, Washington, Idaho, and parts of Montana and Wyoming

 Abraham Lincoln

∙ Helped form the Republican party in the 1850s

∙ Raised a Union army and pulled the southern states  back into the Union following the Civil War

∙ Issued Emancipation Proclamation (freed slaves in  the South)

 Theodore Roosevelt

∙ Used Sherman-Antitrust Act to break up Northern  Securities Company (nationwide railroad trust)

∙ Increased regulation of businesses & expanded  

federal conservation programs

 Woodrow Wilson

∙ Increased government’s economic regulation with  Clayton Antitrust Act, Federal Reserve Act, first  

federal income tax, and the banning of child labor

∙ Created the League of Nations to help mitigate  

conflicts between European nations and America, but Congress refused to allow America to participate

o Great Depression through the present

 Roosevelt’s New Deal reforms created federal agencies  that helped Americans & imposed new corporate  

regulations

∙ Dwight Eisenhower, who initially opposed these  

reforms, continued presiding over the creation of new agencies & built the interstate highway system

 Lyndon Johnson created domestic programs (Urban  Development, Medicare, Medicaid, etc.) which helped  promote school funding, voting rights, and civil rights

 Johnson and Richard Nixon failed after sending over  thousands of soldiers in the Vietnam War, where 58,000  soldiers died, and Nixon signed a treaty that still did not  end the conflict but took American troops out

 Gerald Ford & Jimmy Carter faced worst economic  conditions since Great Depression due to increased energy  prices

∙ Neither were reelected because their plans to restore the economy & enhance energy sources failed

 Ronald Reagan negotiated important arms deals with the  Soviet Union

 George H.W. Bush removed Iraqi forces from Kuwait with  minimal American casualties

 Bill Clinton passed Free Trade Agreement, welfare reform,  arms control agreements, and successful peacekeeping  efforts by U.S. troops

∙ Had one of the longest periods of economic growth in U.S. history

 George W. Bush initiated tax cuts & education reforms, but  is remembered by his handling of 9/11 terrorist attacks &  the war on terror

 Barack Obama enacted health care reform, economic  stimulating legislation, financial regulations, and  

appointment of two SC justices

- President’s Job Description

o Constitutional authority (presidential): powers derived from the  provisions of the Constitution that outline that president’s role in  government

o Statutory authority (presidential): powers derived from laws  enacted by Congress that add to the powers given to the  president in the Constitution

o Head of the Executive Branch

 Vesting Clause: (2.1 of Const.) makes president both the  head of government & head of state

∙ Head of government: he/she has authority over the  

executive branch

∙ Head of state: he/she represents the country  

symbolically & politically

∙ Debates as to how expansive this clause should be  

interpreted to mean

 In charge of the implementation of laws

∙ Requires using judgment to translate legislative goals  programs, budgets, and regulations

 Can issue orders to government agencies to make  

significant policy changes

 Appointments

∙ Ambassadors, senior bureaucrats, members of  

federal judiciary (SC Justices)

∙ Controls about 8,000 positions

∙ Limit- Senate must confirm many presidential  apptmts., but has approved nearly all  

nominations

∙ Recess appointment: selection by president of a  person to be an ambassador or head of a department while Senate is not in session, bypassing Senate  approval; recess appointees only serve to the end of  congressional term unless voted in again by Senate  Executive order

∙ Executive order: proclamations made by the  president that change government policy without  congressional approval

o Ex: after Sandy Hook shooting, Obama signed  23 executive orders relating to gun control, yet  none of his significant proposals were enacted

∙ Emancipation Proclamation was considered an  executive order

∙ Congress can just as easily create new  legislation to overturn unfavorable executive  orders

 Commander-in-Chief

∙ President is in charge of military (day-to-day  operations), but Congress gets to declare war  o Even though the United States has been  

involved in hundreds of military conflicts,  

there have only been 5 declarations of  

war

∙ To restrain presidential war-making power, Congress  enacted the War Powers Resolution of 1973 (has only been invoked once & has never faced SC review)

o Some scholars argue it gives president  MORE power

o Forces presidents to gain congressional  

consultation/involvement before any large

scale military actions are taken

 Treaty making and foreign policy

∙ Treaty power is shared between Congress & the  President, but president has more of an advantage  (but still needs congressional approval)

∙ 2 strategies for avoiding congressional treaty  vote

o Announce that the US will voluntarily abide by  a treaty without ratification

o Structure a deal as an executive agreement  between executive branch & foreign  

government

 Executive agreement: agreement  

between the executive branch & foreign  

government, which acts as a treaty but  

does not require Senate approval

∙ Obama campaigned reducing military operations  abroad, but in reality, he expanded drone & Special  Forces attacks on terrorist organization members,  promoted American participation in Libya & Syria, &  sent forces to Crimea’s annexation

 Legislative power

∙ Lawmaking is a shared power between president &  Congress

∙ President can RECOMMEND policies to  Congress; specifically, through the State of the Union; he cannot propose legislation

o State of the Union: annual speech in which the  president addresses Congress to report on the  condition of the country and to recommend  

policies

∙ President can veto legislation; signed bills become  laws, vetoed bills go back to Congress for a vote to  override veto

o Pocket veto: president’s ability to veto a piece  of legislation by taking no action on it (possible only when Congress is not in session)

∙ Vetoes are more likely to occur under divided  government and much less likely under unified  government

∙ Veto power can facilitate compromise

o President Obama threatened to veto any  

legislation that repealed his health care act,  

even if it led to a shutdown, and it worked

 Other duties & powers

∙ Constitution gives president several additional  powers

o Authority to pardon people convicted of  federal crimes or reduce their sentences

 Cannot pardon anyone who was  

impeached & convicted by Congress

 Executive power

∙ Executive privilege: right of the president to keep  

executive branch conversations and correspondence  

confidential from the legislative & judicial branches

o United States v Nixon (Watergate scandal):  

Supreme Court ruled that executive privilege  

exists, but is not absolute

- The Presidency as an Institution

o Executive Office of the President

 Executive Office of the President (EOP): group of policy related offices that serve as support staff to the president ∙ Office of Management and Budget

∙ Office of the United States Trade Representative

 Helps president achieve their policy goals & get reelected  Most staff members are presidential appointees who retain  their positions only as long as the president who appointed them remains in office

∙ Most leave their positions due to pressures,  

long hours, and relatively low salaries

o Vice President

 Presides over Senate proceedings & casts tie-breaking  votes

 Becomes president if current president dies, becomes  incapacitated, resigns, or is impeached

o The First Spouse

 Typically one of president’s most important advisers

 Represent America at a wide array of international  events

 Limited policy-making roles; opponents argue that the first  spouse should not be involved in policy-making at all

 Examples

∙ Laura Bush made public appearances to support  

education & literacy programs, as well as HIV/AIDS  

treatment and prevention efforts

∙ Michelle Obama supported exercise & healthy eating  programs

o The president’s Cabinet

 Cabinet: group of 15 executive department heads who  implements the president’s agenda in their respective  

positions

 Chosen based on loyalty to the president & expertise (do  not need to be from the same party necessarily)

- Presidential Power Today

o Ambiguity of the Constitution creates opportunities for the  exercise of presidential power

o Presidents & unilateral action

 Unilateral action: any policy decision made & acted upon  by the president and presidential staff without the explicit  approval or consent of Congress

 Congress can, in theory, undo unilateral action, but  often do not due to the time, effort, and public  perceptions involved in doing so

 Ex: 2011 debate over military action in Syria

∙ Obama’s use of air strikes and limited deployment  did not violate the provisions of the War Powers Act;  no vote was ever taken to undo this despite many  

opposed this proposition

 Unitary executive theory: idea that the vesting clause of  the Constitution gives the president the authority to issue  orders & policy directives that cannot be undone by  Congress

 All presidents take unilateral action

∙ Bush’s wiretapping of American’s international phone conversations without obtaining warrants from the  

FIS Court

∙ Annexation of Texas

∙ Freeing of slaves in the Emancipation Proclamation ∙ Desegregation of the US military

∙ Initiation of affirmative action programs

∙ Creation of agencies similar to the Peace Corps

o Control over the interpretation and implementation of laws  Signing statement: document issued by the president when signing a bill into law explaining his/her interpretation of  the law, which often differs from the interpretation of  Congress, in an attempt to influence how the law will be  implemented

o Congressional responses to unilateral action

 After Obama announced plans to shut down Guantanamo  Bay detention center for terrorist suspects, Congress added an amendment stating that the prison would not close until the administration released plans explaining where the  prisoners would be sent, and the facility remains open to  this day

 Members of Congress also write laws that limit the  president’s authority over their implementation

 Congress’s ability to overturn presidential actions is not  explicitly stated in the Constitution

 Congress can remove president or vice president  through the impeachment process, but this is more  difficult than passing a law to undo unilateral action

∙ House must impeach president by majority  vote

∙ Senators hold a trial, followed by vote where  2/3 majority are needed

 Only two presidents have faced impeachment vote  (only in House, not approved by Senate, did not  actually get impeached)

∙ Andrew Johnson, 1866 (involved in political dispute  over administration over southern states post-Civil  

War)

∙ Bill Clinton, 1999 (lied under oath in sexual  

harassment lawsuit)

∙ (Richard Nixon resigned to avoid an impeachment  vote)

o President as politician

 Presidency is an inherently political office (much of  everything they do has to be approved by others &  compromised)

 Presidents must be aware of their actions & the potential  outcomes because they want to be reelected for a second  term

 Presidential approval rating: percentage of Americans who  think that the president is doing a good job in office ∙ Often determined by the shape of the economy

 President as party leader

∙ Unofficial head of his/her party & normally  picks the party’s day-to-day leadership

 Going Public

∙ Going public: president’s use of speeches and other  public communications to appeal directly to citizens  about issues the president would like the House or  

Senate to act on

∙ Broadcast & cable networks give prime-time slots to  presidential addresses & State of the Union speech

∙ While sometimes going public works, it more often is  ineffectual or counterproductive

o Rather than facilitating compromise, it may  

deepen existing conflicts

o Studies suggest that Americans ignore or  

reject a president’s attempts to go public  

(unless they are extremely popular)

∙ Presidents have difficulty shaping public opinion

o Studies show they are constrained in the area  

in which they govern

Chapter 13 Notes 

What is the Federal Bureaucracy?

- Bureaucracy: system of civil servants and political appointees who  implement congressional or presidential decisions; the “administrative  state” 

- Civil servants: employees of bureaucratic agencies within the  government

- Political appointees: people selected by an elected leader to hold a  government position

- What do bureaucrats do?

o Implement policies established by congressional acts or  presidential decisions

 Legislation only determines general guidelines;  

bureaucracy can develop specific policies and  

programs based on these guidelines

o Regulate behaviors

 Regulation: a rule that allows the government to exercise  control over individuals and corporations by restricting  

certain behaviors

∙ Ex: EPA’s Clean Power Plan (limits on carbon dioxide  

amounts that can be emitted from power plants)

 Notice-and-comment procedure: step in the rule-making  process in which proposed rules are published in the  

Federal Register and made available for debate by the  

general public

∙ Process is time-consuming

 Bureaucrats take pressure from elected officials when  

modifying regulations for two reasons

∙ Bureaucrats’ policy-making power may derive  

from a statute that members of Congress could

overturn

∙ Bureaucrats need congressional support to get

larger budgets & expand their agency’s  

mission

 Federal regulations affect daily life

∙ Gas mileage of cars, road materials, gas prices, work  

hours, medicine, student loans, etc.

 Regulations are often controversial due to trade-offs  

between incompatible goals

o Research, development, and new policies

 Government scientists work in medicine, astronomy,  

agriculture, and applied research using government funds

- Bureaucratic Expertise & its Consequences

o Bureaucrats often have an advanced degree & specialize in  certain policy areas

o Bureaucracy of experts is important for state capacity  State capacity: knowledge, personnel, and institutions that  the government requires to effectively implement policies o Red Tape & Standard Operating Procedures

 Issues with bureaucratic decisions

∙ Take too much time

∙ Rely on arbitrary judgements

∙ Have unintended consequences

 Red tape: excessive or unnecessarily complex regulations  imposed by the bureaucracy

 Standard operating procedures: rules that lower-level  bureaucrats must follow when implementing policies

 Ironically, ineptitude & most failure results from the  bureaucracy’s expertise

∙ Know things that elected officials do not &  

because of this, elected officials have a difficult

time evaluating the bureaucracy’s decisions

o Problem of Control

 Problem of Control: difficulty faced by elected officials in  ensuring that when bureaucrats implement policies they  follow these officials’ intentions but still have enough  

discretion to use their expertise

∙ Ex: Principal-agent game (an interaction between a  

principal who needs something done and an agent  

who is responsible for carrying out the principal’s  

orders

o Giving the agent very specific orders prevents  

the agent from acting based on expertise; but  

if the principal gives the agent freedom to  

make decisions based on expertise the  

principal has less control over the actions

 Sometimes bureaucratic actions result from regulatory  capture

∙ Regulatory capture: situation in which bureaucrats  

favor the interests of the groups they are supposed  

to regulate the expense of the general public

 Many bureaucrats come in & try to implement their own  ideas into their decisions and actions  

∙ Ex: Flint’s water supply- EPA wanted quick action to  

bypass the investigative procedures superiors  

wanted

How has the American Bureaucracy Grown?

- Beginning of the bureaucracy

o Only three executive branches from the Founding to 1828  State

 Treasury

 War

o Very small federal government, limited staff, and narrow range of tasks

o Election of Andrew Jackson introduced the spoils system (people  who had worked in Jackson’s campaign were rewarded with new  positions in the federal government)

 Many often lacked experience

 Procedures were developed to ensure that, even  without experience, they could know what to do

- Building a new American State: the Progressive Era

o Bureaucracy transformed after the Civil War, but more  significantly during the Progressive Era (1890-1920)

o Government’s regulatory powers were increased

 Ex: Sherman Antitrust Act of 1890, Pure Food & Drug Act of 1906, Federal Meat Inspection Act of 1906, expansion of  

Interstate Commerce Commission

o 1883 Pendleton Civil Service Act 

 Federal civil service: system created by the 1883 Pendleton Civil Service Act in which bureaucrats are hired on the  

basis of merit rather than political connections

 Reforms created a bureaucracy in which people were hired  for expertise & not having to fear being fired when a new  

president or member of Congress took office

- The New Deal, the Great Society, and the Reagan Revolution o The New Deal

 Government programs implemented during Franklin  

Roosevelt’s presidency

 Advocates favored more government involvement

 Goal- stimulate economic growth and job  

employment & formation of labor unions

 Controversies

∙ Republicans opposed New Deal reforms because they

thought federal government could not work  

efficiently & that the bureaucracy expansion would  

create a modern spoils system

∙ Southerners worried that fed gov’s expansion would  

endanger racial segregation  

o The Great Society

 Further expansion in size, capacity, and activities of the  bureaucracy

 Johnson & Congress passed many new programs

∙ Bilingual education, college student loans/grants,  

elementary schools, mass-transit, etc.

 Mixed success

∙ Voting & civil rights reforms ended “separate but  

equal” system

∙ Anti-poverty programs failed

o Reagan Revolution & Afterward

 Republican Senate, House, and presidential takeover in  1980

 However, 30 years after the roll back of federal  

government powers, its growth has not slowed (even with Republicans in power)

The Modern Federal Bureaucracy

- Structure of the federal government

o Executive Office of the President (EOP)

 Organizations that support the president & implement  

his/her policy initiatives

∙ Office of Management & Budget: an office within the  

EOP that is responsible for creating the president’s  

annual budget proposal to Congress, reviewing  

proposed rules, and performing other budget-related  

tasks

 Heads of this & 15 other organizations make up the  

president’s cabinet

 Below executive departments (but not subordinate to  them) are independent agencies

∙ Independent agencies: government offices or  

organizations that provide government services and  

are not part of an executive department

∙ Ex: Federal Reserve System, Federal Deposit  

Insurance Corporation, etc.

 2 lessons of divided executive power

∙ Fed government can handle an enormous  

range of functions

∙ Division of activities among executive  

departments & independent agencies does not  

always have an obvious logic

 Independent agencies have more freedom from oversight  and control by the president & Congress

o Size of the federal government

 Fed gov employs millions of people

∙ Dept. of Defense being the largest one

 Bureaucrats are budget maximizers

∙ Budget maximizers: bureaucrats who seek to  

increase funding for their agency whether or not that

additional sending is worthwhile

 Important points of being budget maximizers

∙ Increase in total federal spending masks the  

fact that many agencies see their budgets  

shrink

∙ Every year some government agencies are  

cutting spending as much as possible

∙ Every year some government agencies are  

eliminated

 Overall growth in government results from: the American  public’s demand for services

∙ Polls show little-to-no-evidence of demands for

less government because while they would  

prefer it, they do not support the large-scale  

budget cuts that would be put into action in  

order to achieve this goal

The Human Face of the Bureaucracy

- Civil service regulations

o Current civil service system  

 Sets out a job description & pay ranges for all federal jobs  Establishes tests that determine who is hired for low-level  clerical and secretarial positions

o These regulations provide job security (multi-step procedure  involved in firing someone)

o These regulations exist to prevent elected officials from  hiring & firing those in order to further implement their  own policy goals

 It is illegal to bring politics into hiring decisions

- Limits on political activity

o Hatch Act (1939): prohibited federal employees from engaging in organized political activities; employees can vote & contribute to  candidates but could not work for candidates or political parties

 Modified by the Federal Employees Political Activities Act (allowed federal employees to undertake a wider range of  political activities)

- Political appointees and the Senior Executive Service

o Some government agencies have the reputation of being  turkey farms

 Turkey farms: agencies to which campaign workers and  donors can be appointed in reward for their service  

because it is unlikely that their lack of qualifications will  

lead to bad policy

o Senior Executive Service (SES): top positions in agencies who are exempt from civil service restrictions

Controlling the Bureaucracy

- Bureaucrats hold significant power to influence policy

o Creates principal-agent game issue

o One strategy to eliminate this issue

 Take away discretion and give bureaucrats simple,  direct orders; however, this limits the positive  

influence of their expertise, leaving all the details to the enactors themselves

o Bureaucratic drift: bureaucrats’ tendency to implement policies  in a way that favors their own political objectives rather than  following the original intentions of the legislation

- Agency organization

o Officials who initiate the set-up of a new agency, they determine  where the agency is located within the federal government  structure and who runs it; this minimizes bureaucratic drift

 Ex: Obama administration’s response to the 2008-2009  was to form a new agency to help enforce new bank  

regulations & investigate consumer complaints about  

financial firms

- Monitoring

o Another way to prevent bureaucratic drift is to know what bureaucrats are doing or planning to do

o Oversight: Congressional efforts to make sure that laws are  implemented correctly by the bureaucracy after they have been  passed

o Monitor how bureaucrats are responding to presidential  directives

o Advance warning

 Elected officials and staff gain advance knowledge of  

bureaucratic actions through the notice-and-comment  

procedure (bureaucrats disclose proposed changes before  they take effect)

 Delay gives opponents the opportunity to disclose  proposed changes before they take effect & gives  

legislators time to revise or undo a regulation

o Investigations: Police Patrols and Fire Alarms

 Two types of oversight

∙ Police Patrols: method of oversight in which members

of Congress constantly monitor the bureaucracy to  

make sure that laws are implemented correctly

∙ Fire Alarms: Method of oversight in which members  

of Congress respond to complaints about the

bureaucracy or problems of implementation only as  

they arise rather than exercising constant vigilance

 Police Patrols

∙ Disadvantage- costly in terms of money & staff time

∙ Often times the results show that agencies are doing  

what they should be doing

 Fire Alarms

∙ Different forms

o Representatives meet with constituents who let

them know of any problems

o President may be contacted by lobbyists,  

corporate executives, and ordinary citizens  

with complaints

 Correcting violations

∙ Tactics used to bring a wayward agency into line

o Legislation or an executive order can clarify a  

directive or remove its discretion

o Tasks & programs can be moved to an agency  

more closely aligned with an elected official’s  

goals

o Political appointees within an agency can be  

replaced

o Agencies can be reorganized

∙ One significant difficulty in dealing with bureaucratic  

drift is the disagreement between members of  

Congress & the president about whether an  

agency is doing the right thing

o Without presidential support, Congress  

members need a two-thirds majority to  

impose corrections

o Without Congressional support, president

can only threaten to cut an agency’s  

proposed budget, change its home within  

the federal bureaucracy, or set up a new  

agency to do what the other agency  

refuses to do (carrying out such threats  

requires congressional approval)

∙ Agency can fend off elected officials’ attempts to  

take political control if it has a reputation for  

expertise

∙ Agencies can combat attempts to control their  

behavior by appealing to groups who benefit from  

agency actions

Chapter 14 Notes

The Development of an Independent and Powerful Federal Judiciary - Founders’ view of the Courts: weakest branch?

o Federalist 78- “beyond comparison the weakest branch of the  three departments of power”

o Antifederalist Papers- “Supreme Court under this constitution  would be exalted above all other power in the government and  subject to no control”

o Article III of the Constitution lays out powers of judiciary o Main disagreement- how independent the courts should be vis à-vis the other branches of government and how much power to  give to the courts; whether to give the judiciary some  

“revolutionary power” to strike down laws passed by Congress  that violated the Constitution (judicial review)

o Many details of judiciary were left to Congress (size, time &  place of meetings, and internal organization)

 Details outlined in the Judiciary Act of 1789

∙ Judiciary Act of 1789: law in which Congress laid out  

the organization of the federal judiciary. Law refined  

and clarified federal court jurisdiction and set the  

original number of justices at six; also created the  

Office of the Attorney General and established the  

lower federal courts

∙ District courts: lower-level trial courts of the federal  

judiciary system that handle most U.S. federal cases

∙ Appellate jurisdiction: authority of a court to hear  

appeals from lower courts and change or uphold the  

decision

 For 100 years, district courts each had one judge while  circuit courts had two SC justices and one district judge

∙ Today, separate judges are appointed to fill circuit  

courts (appeal courts)

 Court did not decide a single case in 1791-1792

- Judicial Review: Marbury v Madison

o Court started to gain more power with John Marshall as  chief justice (1801)

o Marbury v Madison: gave the SC the power of judicial review  Judicial review: the SC power to strike down a law or an  executive branch action that it finds unconstitutional (not  

addressed in the Constitution)

 What happened in this case? Feds lost election of 1800  to D-R Thomas Jefferson. Fed lame-duck Congress gave Fed president (Adams) the opportunity to appoint 42 new  

justices for DC and Virginia. New admin took over before  

he could finish appointing because John Marshall (sec of  

state and also confirmed chief justice of the Court) failed to

ensure all were appointed in time, and Jefferson ordered  

his new sec of state not to appoint the remaining  

commissions. Marbury did not receive his commission; to  

get out of the issue Marshall applied judicial review to help  Marbury receive his commission, but he did not win the  

battle

 Original jurisdiction: authority of a court to handle a case  first, as in the SC’s authority to hear disputes between two  states; however, the power is not exclusive to the SC and is applied to lower courts as well

o Judicial review in practice

 Was 50 years after Marbury v Madison that the SC used  judicial review again

 Judiciary Act of 1789 expanded SC power to rule on state  matters

 Relationship b/t state and national government largely  

defined by how active SC was in asserting judicial review

 In total, SC has struck down more than 180 acts of  

Congress (and about 1,400 state laws)

 When SC strikes down congressional or state law, it  

engages in constitutional interpretation & statutory  

interpretation

∙ Constitutional interpretation: process of determining  

whether a piece of legislation or governmental action

is supported by the Constitution

∙ Statutory interpretation: various methods and tests  

used by the courts for determining the meaning of a  

law and applying it to specific situations. Congress  

may overturn the courts’ interpretation by writing a  

new law; thus, it also engages in statutory  

interpretation

 Administrative law (third main area of law) sometimes  

requires the Court to assess the appropriateness of  

statutory interpretation by federal agencies responsible for  implementing laws

 Debates with judicial review

∙ Antidemocratic nature of it- why do we give 9  

unelected justices such power over elected  

representatives?

American Legal and Judicial System

- Court fundamentals

o People in the courtroom

 Plaintiff: person/party who brings a case to court

 Defendant: person/party against whom a case is brought

o Many, but not all cases are heard before a jury that decides the  verdict

o Often settled before coming to trial in a process known as plea  bargaining

 Plea bargaining: negotiating an agreement between a  plaintiff and a defendant to settle a case before it goes to  trial or the verdict is decided. In a civil case, usually  involves an admission of guilt & monetary agreement for  compensation; in a criminal case, this involves an  

admission guilt for a reduced charge or sentence

o Differences between Civil & Criminal Cases

 Standard of proof to determine outcome of case ∙ Civil- jury has to determine whether the  

“preponderance of evidence” (majority of evidence)  proves the plaintiff wins

∙ Criminal- defendant must be found guilty “beyond a  reasonable doubt”

 Where the burden of proof lies

∙ Civil- burden of proof may be on the plaintiff or the  defendant; the plaintiff may have to prove certain  

points and the defendant other points (more difficult) ∙ Criminal- assumption of “innocent until proven  

guilty” (state must prove the guilt of the defendant

 Type of civil suit

∙ Class-action lawsuit: case brought by a group of  individuals on behalf of themselves and others in the  general public who are in similar circumstances

o Common elements of the judicial system

 Adversarial court system

∙ Lawyers on both sides can present both their cases,  challenge testimony of opposing side, and try to  

convince that their version of events is the truth

 49/50 of the states and the federal courts operate  under common law

∙ Common law: law based on the precedent of  

previous court rulings rather than on legislation

∙ Louisiana practices civil law (based on a detailed  codification of the law that is applied to each specific  case)

 Precedent: legal norm established in court cases that is  then applied to future cases dealing with the same legal  questions

∙ Lower cases are bound by SC decisions where there  is clear precedent relevant for a given case

∙ Lower courts have considerable discretion in sorting  out which precedents are the most important

∙ SC has overruled more than twice as many decisions  since 1953 than in the previous 164 years

o Explained by the amount of precedents that  

could have been overturned in the first few  

decades of nation’s history

∙ Considerations before a case is filed

o Person bringing the case must have standing to

sue in a civil case

 Standing: legitimate justification for  

bringing a civil case to court

 Get more complex when government is  

involved

∙ Ex: Environment group challenged  

the Interior Dept.’s interpretation of

Endangered Species Act, SC  

declared group had no standing  

because there was no “imminent”  

injury to the group itself

o When bringing case to court, must choose a  

court that actually has the power to hear your  

case (jurisdiction)

 Jurisdiction: the sphere of a court’s legal  

authority to hear and decide cases

 Varies state-by-state

o Structure of the Court System and Federalism

 Court system operates on two parallel tracks within ∙ State and local courts

∙ Federal courts

 Within each of these courts, there are original  jurisdiction, appeals courts, and courts of special  jurisdiction

 State courts are entirely separate from federal  courts (with the exception of the SC)

 DIsctrict Courts

∙ Handle more than a quarter of a million filings a year ∙ 89 districts in 50 states; at least 1/state

∙ Two limited-jurisdiction district courts

o Court of International Trade (cases  

involving international trade & customs issues)

o U.S. Court of Federal Claims (handles  

claims for money damages against the United  

States, disputes over federal contracts,

unlawful “takings” or private property by  

federal government, and more)

 Appeals Courts

∙ Appeals courts: intermediate level of federal courts  that hear appeals from district courts; any court with  appellate jurisdiction

∙ Losing side in a federal case can appeal to the SC,  but most just go to the appeals courts

 Supreme Court

∙ Top of the federal court system; “Court of Last  

Resort”

∙ Applications and interpretations of the Constitution  are consistent nationwide

∙ Resolves conflicts between lower courts, state &  federal laws, and laws in different states

∙ Does not always have the final say, Congress and  president can also interpret Constitution

∙ Congress can fight back by passing a  

constitutional amendment (difficult and time

consuming process)

o Chisholm v Georgia: case upheld the right of a  

citizen in one state to sue another state in  

federal court; amendment to overturn this  

decision quickly happened in Congress and the  

Eleventh Amendment was passed

o How judges are selected

 National level- president makes appointments with  advice & consent of the Senate

 State-level judges

∙ Judges can be appointed for trial courts in five  

different ways

o Appointment by governor

o Appointment by state legislature

o Partisan elections

o Nonpartisan elections

o Governor makes appointment from list  

compiled by a nonpartisan screening  

committee (Missouri Plan)

∙ Interest groups often become involved by making  endorsements

∙ Elected judges are controversial because they  will be more subject to public opinion; but the  alternative is viewed as elitist

 Federal judges

∙ Constitution does not specify requirements for  serving on federal courts

∙ Do not even have to have a law degree

∙ President appoints judges with “advice & consent” of  Senate

 Role of the President

∙ Presidents have broad discretion over who to  nominate and have tried to influence the Court  by picking people who share their views

o Not always predictable as to how justices will  behave

o Justice Earl Warren was appointed by  

Republican president, but was one of the most  liberal chief justices of the last century

∙ President FDR

o Court struck down several legislative pieces of  his New Deal policies

o Proposed nominating a new judge for every  judge over 70 years old (6 new justices,  

building a 15-justice Court)

o Plan never was enacted

 Role of the Senate

∙ Senate rarely rejects nominees based on their  qualifications; rather, it does this for political reasons o Of 28 SC nominees rejected by Senate,  only 2 were turned down based on their  

qualifications

 Battles over Lower-Court Judges

∙ Battles between president nominations and  Senate confirmation has recently expanded to  district and appeals courts

∙ Senatorial courtesy: norm in the nomination of  district court judges in which the president consults  with his/her party’s senators from the relevant state  in choosing the nominee

∙ President typically shows more interest in appeals  court nominations

o “Blue slip process”: home state senators record their support or opposition to nominees on blue slips of paper

∙ Confirmation rate for federal judges has been  relatively stable in the past 35 years and average  time to confirm nominees has increased dramatically

∙ First draft of Constitution gave Senate full power to  

appoint nominees to the SC

Access to the Supreme Court

- The Court’s workload

o Docket of cases has increased dramatically, but most are written  off as frivolous; prevention of “frequent filers” by ordering that  the Court focuses on “petitioners who have no abused the  processes”

o Only issue half as many opinions as it used to (current 8 SC justice deck prevents SC from taking on cases due to chance of  deadlock decisions (4-4))

- Rules of access

o Four paths case may take to get to SC

 Article III specifies Court has original jurisdiction in  cases involving foreign ambassador or foreign  

countries

∙ Cases involving disputes between two or more states

over territorial or natural resource issues

 Appeal as a matter of right

 Appeal through certification (rarely used)

 Appeal through writ of certiorari (most common)

∙ Writ of certiorari: at least four of nine justices agree  

to hear a case that has reached them via an appeal  

from the losing party in a lower court’s ruling

- Court’s criteria

o Collusion, Standing, and Mootness

 Collusion

∙ Constitution limits the Court to hearing actual “cases  

and controversies”

∙ Court cannot offer advisory opinion about  

hypothetical situations

 Standing

∙ Party brining the case must have a personal stake in  

the outcome

∙ Court has discretion in deciding standing

∙ May often avoid controversial cases based on a  

“threshold” issue like standing and not have to  

decide the merits of the case

 Mootness

∙ Mootness: the irrelevance of a case by the time it is  

received by a federal court, causing the Court to  

decline to hear the case

o One guideline eliminates the largest number of cases

 If a case does not involve a “substantial federal  

question,” it will not be heard

 Conflict between appeals courts and court decisions  are most likely to produce a SC hearing

- Internal politics

o Cert pool: system initiated in the SC in the 1970s in which law  clerks screen cases that come to the SC and recommend to the  justices which cases should be heard

 Ultimate decision to hear a case is up to the judges, but  clerks have significant power in shaping the Court’s  

agenda

o Chief justice has an important agenda-setting power

 He/she decides the “discusslist” for a given day

o Cases that have generated a lot of attention and support from  interest groups are more likely to be heard

o Solicitor general: presidential appointee in the Justice Dept. who  conducts all litigation on behalf of the federal government before the Supreme Court and supervises litigation in the federal  appellate courts

Hearing Cases Before the Supreme Court

- Court is in session from first Monday in October through the end of  June

- Briefs

o Supreme Court only hears appeals (does not call  witnesses or gather new evidence)

o Interest groups often submit amicus curiae (85% of cases have  at least one)

 Amicus curiae: Latin for “friend of the court,” refers to an  interested group/person who shares relevant information  

about a case to help the Court reach a decision

- Oral argument

o Oral arguments: spoken presentations made in person by the  lawyers of each party to judge or an appellate court outlining the legal reasons their side should prevail

o Court is strict on time limits and uses system of three lights to  show the lawyers how much of their allotted 30 minutes is left o Justices often jump in immediately with questions during a  lawyer’s allotted time

o Cameras are not allowed in the Court room

- Conference

o Meetings conducted in secret after oral argument to vote on the  case

- Opinion writing

o If chief justice is in the majority opinion (which is most common), he chooses which justice will write the majority opinion;  

otherwise, most senior member will write

o Determinations on how a case will be assigned

 Chief justice will try to give each justice the same  number of cases

 Justices’ individual areas of expertise

o Strategy on the Court

 Opinions may be assigned based on the Court’s external  relations, internal relations, and the personal policy  goals of the opinion assigner

o Dissents

 Two points about the process of writing and issuing  

opinions

∙ Until 1940, there was a premium placed on  

unanimous decisions

∙ Dissents serve a purpose in allowing the  

minority view to be expressed and providing  

the basis for reversing a poorly reasoned case

Supreme Court Decision Making

- Influenced by two factors

o Legal (precedents of earlier cases and norms that justices must  follow the language of the Constitution)

o Political (Justice’s preferences/ideologies, stances on restrained  or activist roles, and external factors)

- Legal factors

o Precedent

 Does not determine the outcome of just any given case o The language of the Constitution

 Strict construction: way of interpreting a Constitution  

based on language alone

∙ Literalist view of the Constitution (sometimes called  

textualist)  

∙ Justices need not look no further than the actual  

words of the Constitution

∙ Justice Hugo Black was one of the most famous  

literalist advocates (“Congress shall make no law  

abridging the freedom of speech,” means (in his  

eyes) literally NO law)

∙ Critics point out that Constitution is silent on  

many important points (privacy, etc.) and  

Founders could not have anticipated legal  

implications of technology; also, many words in

the Constitution are intentionally vague

∙ Original intent: theory that justices should surmise  

the intentions of the Founders when the language of  

the Constitution is unclear

 Living Constitution: way of interpreting the Constitution  that takes into account evolving national attitudes and  

circumstances rather than the text alone

∙ Supporters argue strict constructionism makes the  

nation “a prisoner of the past”

- Political factors

o Political Ideology and attitudes

 Attitudinalist approach: way of understanding decisions of  the SC based on the political ideologies of the justices

∙ Liberal judges civil liberties, often pro-choice,  

environmental protective measures, affirmative  

action, etc.

∙ Conservative judges state regulation of private  

conduct, prosecutors over defendants, often pro-life,  

and color-blind policy on race

o Strategic model

 Strategic approach to understanding how decisions are  made focuses on

∙ Justice’s calculations about preferences of  

other justices, president, and Congress

∙ Choice the other justices are likely to make

∙ Institutional context within which they operate  Median voter has very influential role on the Court  

(between liberal and conservative)

∙ Research shows that at least one justice switches  

his/her vote at some stage in the process

o Separation of powers

 Judicial restraint: idea that the SC should defer to the  democratically elected executive and legislative branches  of government rather than contradicting existing laws

 Judicial activism: idea that the SC should assert its  

interpretation of the law even if it overrules the elected  executive and legislative branches of government

 Some argue that these behaviors don’t matter because  they Court usually follows public opinion and rarely plays a  lead role in promoting policy change

∙ Research done showed that 3/5 of SC decisions were consistent with public opinion

∙ Plenty examples of when Court has stood up for  

unpopular views (banning prayers in schools,  

allowing flag burning, etc.)

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