POLS Exam 2 Study Guide
POLS Exam 2 Study Guide POLS 1101
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Kyla Brinkley POLS 1101 EXAM REVIEW Fall 2015 Bakker Chapter 6 Congress a b c The House and Senate occupy the center stage in national policymaking Congressional parties have become highly polarized Electoral politics influences almost everything members of congress do individually and collectively The majority party through its leaders directs and sometimes dominates the action in the House but less so in the Senate i The degree of control depends on how unified the parties are internally The rules amp organization the House amp Senate adopt have a deliberate amp crucial effect on both the distribution of power and policymaking in Congress It s easier to stop things from happening than make them happen in congress Congress in the Constitution i The basic structure of congress is the product of the Great Compromise at the Constitutional Convention 1 Bicameral legislature was mixed solution 2 Representatives in House popularly chosen in biennial elections held in even numbered years a Two year term b Broad suffrage qualification for voting is the same Short tenure Min age 25 Citizen for 7 years Must live in state they represent but not in the districts they serve i Usually do though quot ltD 19 3 Senate a Term 6 years b 13 of senates membership stands for election every 2 years c Stable compared to the House d Incorporated remnants of state sovereignty into the new national gov e Min age 30 f Citizen for 9 years g Must live in state they represent h Powers of Congress i Necessary amp proper clause expands power of congress 1 Elastic clause stretched powers of congress ii Only congress may declare war raise amp finance an army amp navy amp call out state militias 1 Senate ratifies treaties amp confirms presidential appointments of ambassadors 2 Senate approves presidentially appointed supreme court justices amp top executive branch officials a Senate is advisory council to the executive iii Bills raising revenue originate in the House with the Senate having a right to amend them iv Congress doesn t have exclusive authority over legislation i The Electoral System i Members of congress and presidents are elected separately ii Members of congress are elected from states amp congressional districts by plurality vote iii Some parliamentary systems employ proportional representation gives a party a share of seats in the legislature matching the hare of votes it wins on Election Day 1 Ex if party s share of votes gets 85 seats then 85 candidates from the party go to parliament a Voters are choosing among parties not candidates iv American legislators are elected from territorial units not party lists 1 Parties matter in congressional elections 2 Parties don t control nominations though 3 Almost all congressional nominees are now chosen by voters in primary elections j Congressional Districts i House of Reps membership was fixed at today s 435 in 1911 ii States lose and gains seats to reflect population shifts after 10year censuses vi vii 1 Show population movements of US Federal law can apportion House seats among states after each census but each state draws the lines that divide its territory into districts 1964 Wesberry v Sanders districts must have equal populations 1986 Thornburg v Gingles district lines may not dilute minority representation but also can t be drawn with race as the predominant consideration Gerrymandering drawing legislative districts in such a way as to give one political party a disproportionately large share of seats for the share of votes its candidates wm 1986 Davis v Bandemer a gerrymander would be unconstitutional if it were too strongly biased against a party s candidates 1 Vague 2 Racial Gerrymandering a Supreme court 1986 Thornburg decision was interpreted as making mapmakers design districts where racial amp ethnic minorities constituted a majority of voters wherever residence patterns made this feasible k Unequal Representation in the Senate There are 50 senate constituencies one for each state The 9 largest states have 51 of the total US population and the smallest 26 states have 18 of the population but 52 of seats in the Senate Until 1913 senators were chosen by state legislatures 1 Progressivism 17th amendment changed to popular election Congress and Electoral Politics Modern congress organized to serve goals of its members CandidateCentered vs PartyCentered Electoral Politics 1 During era of dominance congressional Democrats thrived onencouraged electoral politics where candidates operated largely as independent political entrepreneurs 4 5 Republicans sought in 1994 to have their candidates run more as a party team emphasizing national issues and a common program of action Political action committees PACs organizations that raise amp distribute money for campaigns Most congressional campaigns were personal and centered on local interestsvalues Ticketsplitting voting for candidates of different parties for different offices iii The Advantages of lncumbency 1 2 Congressional incumbents exploited and abetted the loosening of party ties Members could expand their electoral base by emphasizing individual character legislative performance and constituency services encouraging voters to use this criteria in deciding how to vote Congress voted themselves greater resources for servicing their statesdistricts a Higher allowances for staff travel offices communication Incumbent reelection rates have been higher since mid19605 Growth in party line voting and decline in ability of incumbents to separate themselves from their party s collective fate Fortunes of congressional candidates are increasingly tied to those of their presidential candidates Despite growing importance of party individual candidates still matter so incumbents still work to discourage potential opponents Constituent Service a Members of congress highly responsive to their constituencies b Keeping in touch staying visible c Casework requests from constituents for info and help in dealing with government agencies Vulnerable Senators a Senators 3x more likely to lose their seats than House reps i But senators face reelection 13 as often so tenure in office stays equal b Senate election outcomes more variable than House election outcomes c Senate incumbents win less consistently and by narrower margins than representatives because i States are more populous and diverse than congressional districts ii States are more likely than congressional districts to have balanced party competition iii Senate races attract a larger proportion of experienced politically talented well financed challengers iv States usually fit media markets better v Senators are more readily associated with controversial issues and don t have pressure of 2year election cycle iv National Politics in Congressional Elections 1 Resurgence of partycentered campaigning since 1994 has strengthened the national component of congressional election politics 2 National forces still have effect on electoral fates 3 ln midterm elections president s party almost always loses congressional seats 4 Members of congress can t always dissociate from their party s fate or separate themselves from Congress a Try to show individual efforts v Representation vs Responsibility 1 Legislators represent citizens by carrying out the policies promised by the party 2 Candidate centered electoral process that flourished during democratic control before 1994 gave members of congress more incentive to be more individually responsive than collectively responsible This has been slightly reduced since then 3 Pursuit of reelection makes logrolling legislative practice in which members of congress offer reciprocal support to each other s votegaining projects or tax breaks an attractive strategy a Creates prisoners dilemma 4 Earmarks items individual members routinely insert into spending bills or revenue bills providing special benefits to their states etc 5 Pork barrel legislation legislation that provides members of congress with federal projects and programs for their individual districts a same logic that encourages logrolling makes members of congress hesitate to impose direct costs on identifiable groups to produce greater but more diffuse benefits for all citizens b ways to fight this i delegate authority to bureaucratic agencies or state govs let them take the heat ii frame the lawmaker s choice in a way that highlights credit for the general benefits while minimizing individual responsibility mWho Serves in Congress i Not representative of US demographically ii Womenracial minorities underrepresented iii of blacksHispanics in the house increased after 1982 voting rights act amendments maximize of majority minority districts iv Difference in diversity v 113th congress 201314 for first time ever womenminorities make up majority 53 of House democratic membership vi Republican house membership 90 white men n The Basic Problems of Legislative Organization i To exercise the powers conferred on them by the Constitution the House and Senate had to solve problems 1 How to coordinate action 2 How to resolve conflicts 3 How to get members to work for common amp personal goals ii Challenges that spurred members to develop the modern congress fall into 2 classes 1 Problems besetting the House amp Senate as organizations 2 Problems arising from the competing individual amp collective needs of members iii The Need for Information 1 Division of labor and specialization 2 Committeesubcommittee systems 3 Specialists are able to develop deeper understanding of their domains 4 Better informed decisions 5 More efficient 6 Congress compensates members who master an area of specialization amp supply specialized information with enhance influence iv Coordination Problems 1 Coordination becomes more difficult amp necessary the greater the group s workload amp the more elaborate its division of labor 2 Dividing up the work directing flow of bills through legislative process scheduling debates amp votes on the floor coordination problems 3 Usually solved by group giving one or several members the authority to coordinate 4 Control over the agenda is powerful legislative weapon v Resolving Conflicts 1 Legislation isn t passed until the majorities in both houses agree 2 Agreement requires successful politicking getting people who are pursuing divergent even conflicting ends to make a common course of action 3 Members delegate the task of building legislative coalitions to party leaders 4 Presence of readymade coalitions resolves many conflicts in advance reducing the transaction costs of negotiating agreements on legislation a Price is loss of autonomy to the party and of authority to its leaders individual members incur greater conformity costs because they cannot always do what is politically best for themselves rather than their party vi Collective Action 1 What members do to pursue individual goals tax breaks for local firms special projects for their constituents maintaining their ideological purity by rejecting compromise may undermine the reputation of their party or of Congress as a whole 2 Tension between individual amp collective political welfare pervades congressional life a Prisoners dilemma vii Transaction Costs 1 Transaction costs the price of doing politics time effort bargaining resources favors to be exchanged 2 Many transaction costs of congress have to do with building legislative coalitions conflicts compromises favors 3 Congress is organized to limit other transaction costs a Fixed rules to automate decisions i Seniority rule routinely allocating first choice in committee chairs offices and committee assignments to majority party members who have served longest ii Reduces time and energy that would ve been spent competing 4 Need to reduce transaction costs explains why congress does its work within an elaborate structure of rules amp precedents viii Time Pressures 1 Pressure to avoid unnecessary transaction costs is intensified by the ticking clock a One year session of congress b Two year tenure of each congress 2 as budgets have grown larger Congress has found it difficult to enact them on schedule 3 legislation has to pass through all the hurdles within the 2 year life of a Congress 4 bills in the pipeline but not enacted by the end of the second session of one Congress must be reintroduced in the next Congress 5 because House is bigger it experiences higher organizational problems than the senate 6 senators can get away with looser organization and retain more individual autonomy and equality because there are less of them 0 Organizing Congress i Have to overcome barriers to collective action ii The Parties 1 Decisions made by majority vote a Enact bills b Set rules c Establish procedures d Choose leaders e Decide how to organize houses 2 Political parties are formed when people recognize it is in their best interests to cooperate despite their disagreements 3 Party coalitions are assembled and maintained by party leaders 4 Members sacrifice independence by conceding some authority to party leaders 5 Development of Congressional Parties a Began to form in first session of First Congress i Hamilton v Madison amp Jefferson ii Wanted to recruit and elect likeminded men iii Federalists v Republicans then called DemocraticRepublicans then Democrats 6 Speaker of the house majority s leader amp agent Authority to appoint committees make rules manage legislative process on the majority party s behaH a Centralized authority reached its peak under Speaker Thomas Brackett Speaker in 51 54 55 congresses 1890s i Support of Republican House majority ii Short terms caused them to not mind strong leadership iii Began to weaken Speaker 1910 House members chose to tolerate higher transaction costs to reduce their conformity costs iv 1970s democrats strengthened speaker v 1995 Newt Gingrich republican most powerful speaker since Cannon 1903 1911 b Conditional party government the degree of authority delegated to and exercised by congressional party leaders varies with and is conditioned by the extent of election driven ideological consensus among members iii Increased Partisanship 1 Party coalitions have become more homogeneous 2 As the congressional parties became more unified also became more polarized along ideological lines 3 Party Organization a Majority party of the House led by the Speaker of the House i Assistants are 1 Majority leader the formal leader of the party controlling a majority of the seats in the House or the Senate In the Senate the majority leader is the head of the majority party In the House the majority leader ranks second behind the Speaker 2 Majority whip heads up the whip organization the members who form the communication network connecting leaders with other members whose purpose is to help solve the party s coordination problems ii The minority party leadership is the same minus the Speaker the minority leader is its head b Party members give House party leaders resources for inducing members to cooperate when they are tempted to go their own way as free riders c House party leaders are members agents not bosses The only people who can hire and fire party members are voters i Members choose the style of leadership they believe will best serve their goals d For the minority party in the house legislative leadership is normally less crucial because the party s legislative role has usually been modest e When the party balance is close minority leaders can influence legislation by forming alliances with moderate members of majority pany f When majority enjoys wider margin minority leaders choose between 2 strategic options cooperating with majority thus exerting some influence but getting little credit or opposing and attacking majority to position their party for future electoral battles i Minority leader has big dilemma when the pres is in their party because pres has to cut deals with the majority to accomplish anything at all 4 Parties amp Party Leaders in the Senate a Senate slower than House to develop formal leadership positions amp have never delegated as much authority to their leaders b President pro tempore presides when vice present is absent VP leads senate i Temporary position ii Neither is a real leadership role c Party leadership in the Senate is less formal than in the House d Minority party has greater influence in the Senate because business is conducted under unanimous consent agreements negotiated by party leaders These agreements can be killed by a single objection 5 Other Groups in Congress a Ideological i Republican study committee ii Progressive caucus iii New democrat coalition iv Blue dog coalition b Demographics i Black caucus ii Hispanic caucus iii Caucus for women s issues c Regional interests i Western caucus ii Appalachian caucus iii NortheastMidwest caucus d Economic concerns i Steel caucus ii Automotive caucus iii Wine caucus e Specific issues i Prolife caucus ii Prochoice caucus iii Human rights caucus iv The Committee Systems 1 Evolution of Congressional Committees a Transaction costs were reduced by having committee members appointed by the Speaker rather than elected b Standing committees exist from one Congress to the next unless they are explicitly disbanded c Seniority rule reduced transaction and conformity costs and avoided election and appointment by party leaders 2 Types of committees a Standing committees embody congress s division of legislative labor i Have fixed jurisdictions ii Stable memberships b Once elected members in committees keep seats unless their party suffers large electoral losses c Party ratios on committees match party ratios in the house and senate d Job security associated with standing committees gives committee members both the motive and opportunity to become knowledgeable about policy issues e Money committees important i Ways and Means committee in House ii Appropriations committee in House iii Finance and Appropriations committees in Senate 3 Committee Assignments a Made by party committees under the firm control of senior party leaders and are ratified by the party membership b Subcommittees fixed jurisdictionsstable memberships i Specialization c Specialselect committees appointed to deal with specific problems then disappear 4 Joint Committees a Joint committees gather info amp oversee executive agencies but do not support legislation i Ex Library committee oversees library of congress US botanic garden and public statuary b Ad hoc committees appointed to handle bills that are particularly sensitive c Conference committees appointed to resolve differences between the House amp Senate versions of bills 5 Committee Power a Committee chairs have control b Changes produced fragmented decentralized committee system 6 Jurisdiction a Committees amp subcommittees compete for jurisdiction over important policy areas b Inactive committees are hard to kill off i Since 19205 house amp senate have trimmed committee systems several times c Consolidation committees became subcommittees 7 Party leaders sometimes cope with the problem of multiple jurisdictions by using multiple referrals sending bills to several committees at the same time or in sequence 8 The Money Committees a power of the purse has influenced most contentious jurisdictional fights b Early years of gov revenuespending bills handled by Ways amp Means in House and Finance in Senate c Today legislative spending has 2 step process in each chamber d Committee with jurisdiction over a program authorizes expenditures for it e Appropriations committee appropriates he money i Writes bill f Entitlements designate specific classes of people who are entitled to a legally defined benefit 9 Budget Reform a Early 19705 ability of money committee to enforce collective selfcontrol eroded b Committee reforms weakened committee leaders c Move towards congressional openness i Doing more business in public ii Made it harder for indv Members to resist temptation to promote locally popular projects d Budget amp lmpoundment Control Act 1974 i Subjected presidential impoundment authority to strict congressional control ii Revamped Congress s budgetary process with goal of making impoundment unnecessary e Partisan politics dominates budgeting process v Congressional Staff amp Support Groups 1 Committee staffs deeply involved in all legislative activities a Organize hearings amp investigations research policy options attend to legislative details amp negotiate with legislators lobbyists amp executive branch officials on behalf of the party faction on the committee that employs them p Making Laws i Lawmaking process presents opponents of a bill with many opportunities to sidetrack or kill the legislation ii Easier for members to stop bills than to pass them iii Introducing Legislation 1 Only members may submit legislation to house or senate 2 many proposals originate outside of Congress but need a congressional sponsor to enter legislative process 3 personal credit for a collective act of Congress is a valuable commodity 4 proponents of bills try to line up cosponsors to build support by sharing credit and to display it increasing chances for legislative action 5 parties and pres use legislative proposals to stake out political positions amp make political statements iv Assignment to Committee 1 Most bills routinely assigned to appropriate committee 2 Complex bills referred to several committees 3 Controversial bills sometimes handled by temporary ad hoc committees appointed for that purpose alone 4 Once bill is assigned to committee usually nothing happens a Most bills die of neglect 5 Bills introduced by the minority party to score political points or embarrass the majority are deliberately buried v Hearings 1 Once subcommittee acts it or full committee holds hearings to testify in person or in writing about issue at stake and proposals to deal with it a From executive agencies interest groups academia 2 Committees can investigate almost anything including white house or congress itself 3 Congress often criticized for shirking its duty to oversee administration of laws vi Reporting a Bill 1 If subcommittee decides to act on a bill usually doesn t it edits it and reports it to full committee 2 Full committee accepts rejects or amends bill 3 If bill can t get support from at least majority party committee members it will probably die 4 Written report that comes with bills is most important source of info on legislation for members of congress not on the committee and other people in the gov a Summarize bills purpose vii Scheduling Debate 1 When committee reports bill to the floor bill is put on House or Senate calendar list of bills scheduled for ac on 2 Noncontroversial bills put on the consent calendar to be passed without debate 3 Controversial bills go to Union Calendar money bills or House Calendar other public bills 4 Open rule amendments from the floor 5 Restricted rule only certain amendments 6 Closed rule no amendments a Majority leader s use restrictedclosed rules to keep unwanted amendments off the agenda b Closed rules help solve majority party s prisoner s dilemmas i Many proposals wouldn t be enacted piece by piece because diff members would defect on diff sections ii But passed as packages instead to solve this 7 Sometimes House kills a bill by voting against the rule rather than against the bill itself 8 Discharge petition brings a bill directly to the floor without committee approval when signed by a majority of house members 9 Leaders of both parties negotiate unanimous consent agreements to arrange orderly consideration of legislation 10 Filibuster hold the floor making endless speeches so no action can be taken on the bill or anything else to try to kill bills that the majority would otherwise enact 11 Cloture allows max of 30 additional hrs of debate on bill before vote viii Debate amp Amendment 1 if amendments to a bill are allowed under the rule they must be pertinent to the purpose of the bill 2 riders extraneous proposals not allowed 3 quorum of members who must be present for House to act officially 4 floor debates don t change many minds Politian s aren t swayed by each other 5 floor action does more to shape legislation in senate than in house ix The Vote 1 Opponents of a measure may propose killer amendments which if passed make the bill unacceptable to an otherwise supportive majority 2 Recommit a bill send it back to committee for modification before final vote 3 What influences congressmen a Their own views b Opinions of constituents c Advise of colleagues 4 Explainable vote can be defended publicly if brought up by challenger in future campaign 5 House members job is to construct legislative packages that party members are comfortable supporting a If successful no persuasion necessary b If fail few members likely to put party loyalty ahead of constituents views 6 Roll call vote taken at request of at least 20 members x In Conference 1 Once passed bill sent to other chamber for consideration 2 If 2nol chamber passed bill unchanged sent to white house for pres signature or veto 3 Sometimes bill taken bath and forth between chambers with changes made 4 Party leaders in each house appoint a conference delegation that includes members of both parties usually from among the standing committee members most actively involved for and against the legislation 5 Conference committees reconcile differences in 2 versions of bills 6 If differences can t be fixed the bill dies a This is unusual b Usually if a bill makes it this far they make a choice xi To the President 1 Pres can sign bill etc or ignore so it ll be come law in 10 days xii 2 If congress adjourns before the 10 days are up the bill fails because it was subject to a pocket veto 3 If veto pres sends statement to congress to explain why 4 Congressional override of a presidential veto requires 23 vote in each chamber a b If overrode becomes law Success is rare because presidents party usually supports him A Bias Against Action 1 High transaction costs confer strong bias in favor of status quo 2 Opponents only need to win once to stop a bill 3 Unorthodox Lawmaking a b C e Requires heavy investment of leader s resources time energy favors Cooperation in face of disagreement to act collectively In House designing complex special rules to structure debate amp amendment to minimize minority s influence i Bypassingoverriding committees to draft bills directly ii Rewriting legislation iii Combining separate bills into packages all or nothing ln Senate i Filibuster ii Supermajority coalitions Victoriesdefeats always partial and temporary making cooperation possible q Evaluating Congress 39 Most incumbents win reelection even if public is fed up with national policies and politicians of 1 or both parties Americans use politics as vehicle for social decisions even when they share no consensus about best plan Congress has a bad reputation because of pluralism 1 ln pluralist politics adamant minorities frequently defeat apathetic majorities because they invest more of their political resources a Votes b Money c Persuasion iv Senators and reps can t avoid making political deals representing conflicted publics or paying attention to intensely held views v Approval of congress varies in response to how it seems to be doing its job 1 Prefers bipartisan agreement not partisan bickering 2 Cooperation between branches 3 Successful gov policies ll Chapter 7 The Presidency a The Historical Presidency i Energetic presidency avoids a napoleon ambitious person who would use the temporary advantages conferred by a national crisis to permanently alter the constitutional order ii Executive has enough resources for coordinating national responses during emergencies but insufficient authority to usurp the Constitution 1 President has power during national urgency iii 19th century all federal employees were appointed directly by pres or one of his agents iv The Era of Cabinet Government 1 19th century congress routed all matters related to administration amp policy through the appropriate department secretary 2 President consulted cabinet for info on agency heads performances amp advice on whether to veto or sign bills 3 Strong cabinet didn t mean strong pres a lntersecting interests 4 Cabinet members were likely to pursue own politicalpolicy objectives as well as presidents 5 Partnership based on reciprocity not loyalty a Cabinet helped president achieve limited political goals president let them pursue their agendas V 6 19th century politicians cabinet was steppingstone to white house 7 Today s politicians cabinet is end of career Parties amp Elections 1 18005 party that won state s presidential contest usually gained control of all other offices on the cket a Party that controlled presidency controlled congress too 2 Pres also had little media coverage other than elections back then compared to now a Congress was in media more 3 Pres candidates more valued for popular appeal than policy a Candidates w little gov experience had advantage over established politicians b Ex military heroes Jackson Taylor Grant c Pres glorified clerk b The Modern Presidency iv V vi vii viii National gov grew dramatically throughout 20th century Modern presidency is product of changing place of Washington in national amp world affairs Legislation creatingrevamping programs gives pres statutory authority to oversee amp make changes in policy Congress seeks guidance in making annual budgetsreauthorizing programs Constitution designates presidents to take Care that the Law be faithfully executed Divided government pits president against an opposition party that controls 1 or both chambers of Congress Common today 1 For most of history party control was unified pres party controlled congress too 2 Pres relies more on constitutional amp other resources a Veto b Executive orders 0 Centralized administration 1 Assertions of executive privilege Increase in delegations of authority and responsibility The President as Commander in Chief and Head of State 1 The Commander in Chief constitution declares pres to be commander in chief of the armed forces Check only Congress can declare war a Presidents often commit troopsengage in hostilities then go to Congress for authority to con nue Legislature may have little choice but to ratify president s decisions After confederate firing on Fort Sumter 1861 Lincoln suspended writ of habeas corpus that prevented Union Army from detaining civilians suspected of spying or opposing war effort and didn t consult congress Congress s authority to declare war has become hollow check on president s initiative i Korean war amp Vietnam were never formally declared War Powers Act 1973 approved over Nixon s veto Law requires president to inform congress within 48 hours of committing troops abroad in a military action Operation must end in 60 days unless congress approves extension 2 Head of State a A of C found it hard to transact foreign affairs b Framers gave president broader authority in C diplomatic affairs than with the domestic front Most important limitation on president s leadership in foreign affairs is requirement that 23 majority of Senate ratify treaties i Famous Senate rejected Woodrow Wilson s League of Nations To sidestep treaty rejections presidents sometimes negotiate executive agreements exempt from Senate ratification Statements of understanding between the administration amp a foreign gov i Can t supersede US law ii Congress can pass laws to remove them iii EX NAFTA ix The President as Chief Executive 1 section 2 of constitution president may appoint the officers of gov by amp with the Advice amp Consent of the Senate Majority confirmation vote 2 Take care clause section 3 of Constitution president may require the Opinion in writing of the principal Officer in each of the executive Departments a take Care that the Laws be faithfully executed 3 ln leaving the creation of several departments the Framers also gave that bod the authority to define the president s role as chief executive 4 ln 1800s congress kept president at bay by insisting that executive agencies report directly to congressional over sign committees 5 Delegation a Congress shares many lawmaking powers with the president b In writing public laws Congress can choose to delegate more or less rulemaking authority to the president i Too little freezes policy may leave rigid programs ii Too much surrenders control over important decisions that could change legislation s intent 0 Congress delegates to gain political advantage d Pass the buck congress finds political advantage in delegating to pres broad responsibility for policies that might have politically unattractive outcomes Hope to avoid blame e Executive is separate branch of gov insulated from congressional control f Pres rarely views role as congress s agent 6 Executive Orders a Until 1900s presidents didn t intrude into administrative practices i Congress oversaw bureaucracy b Executive order a presidential directive to an executive agency establishing new policies or indicating how an existing policy is to be carried out i ii iii iv v vi vii viii 7 Budgeting AKA PRESIDENTIAL MEMORANDUM 1 Less formal 2 Pres does it more 3 Read differently from executive order 4 Semantic differences 5 Direct agencies to do specific actions as if president were directing those activities Has force of law until pres or successor retracts it congress nullifies it or federal court rules that it violates Constitution or federal law Most arise from authorityresponsibility explicitly delegated to president by law Establish executive branch agencies Modify administrative rulesactions Change decision making procedures Give substanceforce to statutes Some are based on president s assertions of constitutional authority a clerical tasks b Send congress annual budget for all federal programs 0 Opportunity to set spending priorities of federal gov d 1921 Budget amp Accounting Act gave pres responsibility for compiling budgets from the executive depts amp submitting them to lawmakers as single package i Strengthened pres role in national policymaking e Pres annual budget is submitted to Congress 1St Monday in February i Technicalpolitical info ii Sometimes accepted with minor changes sometimes ignored 8 Centralized Administration a Institutionalized presidency developed 1930s A set of offices amp staff were created to assist the president Staff would continue to grow in number amp scope of activity Through delegation congress has pushed work toward the presidency along with discretionary authority amp responsibility Gag rule extended by Taft to cover congressional action of any kind amp barred workers from responding to congressional requests for information except as authorized by their dept heads Executive order by FDR all dep communications to congress that could affect future budgets must first be cleared as consistent with president s policy by Bureau of the Budget predecessor for today s office of Management amp Budget OMB Central clearance standard procedure for agency officials heading to Capitol Hill to give testimony i Has strengthened president s hand in national policy ii Stops officials from casually expropriating president s endorsement for their legislative initiatives iii Alerts white house earl to attempted end runs where an agency seeks more moneyauthority than president wants 9 Unitary Presidency a When pres tries to extend influence unilaterally by issuing controversial executive orders opponents are quick to say he is trying to have imperial presidency elected monarch with aides to do his bidding i Unfair label ii Ex Nixon s impoundment orders b Unitary executive when a president claims prerogative to attach signing statements to bills amp asserts hisher right to modify implementation or ignore altogether provisions of a new law that encroaches on hisher constitutional prerogatives as the chief executive or as commander in chief i pres may remove all subordinates in exec Branch ii pres may direct subordinates to take a particular action iii pres can veto any objectionable actions including those mandated by Congress iv if unitary executive doctrine prevailed president could remove any requirements etc that federal law places on heads of federal departmentsagencies v signing statements statements that presidents would attach to legislation as he signed it into law vi now that congress and the pres are usually different parties competing the division of authority between the branches is more significant x The President as Legislator 1 President has modest role in legislative arena 2 Can call congress into special session rare congress almost always in session 3 Veto laws passed by congress 4 Reports to legislative branch on state of the Union 5 Growth in president s administrative duties has ensured that congress will give pres legislative proposals serious consideration 6 Presidents and their appointees who administer federal agencies have informational advantage shown in all delegation that gives advantage when proposing legislation a Pres can improve chances of legislative success by selectively withholding info from legislators 7 Opposition partisans in Congress recognize that president s legislative success might debit their vote count in the next election 8 Opposition party members have chance to defeat administration when they disagree with its policies and coopt credit for passage of those initiatives that they agree with a O republican votes for health care bill 2010 9 Big programs passed when presidents had huge majorities in congress a FDR new deal early 1930s b LBJ great society mid 1960s 10 Gridlock a legislative traffic jam often precipitated by divided gov occurs when presidents confront oppositioncontrolled congresses with policy preferences amp political stakes that are in direct competition with their own amp those of their party Neither side is willing to compromise gov accomplishes little federal operations may even come to a halt a Can also occur when both sizes recognize a policy problem that entails an unpopular solution 11 The Veto a Most formidable tool in dealing with congress b Pres Gerald Ford 197477 has veto record 66 bills Only 12 overridden c Lineitem veto a procedure available in 1997 for first time permitting pres to cancel amounts of new discretionary appropriations budget authority as well as new items of direct spending entitlements amp certain limited tax benefits unless Congress disapproves by law within a specified period of time Declared unconstitutional in 1998 d Pres usually commits in advance to veto a bill i to be effective veto threat must be credible ii show they aren t bluffing and will veto if congress doesn t accommodate them iii Threat must be explicit amp public political embarrassment if back down iv Costly v Risk 12 Mobilizing Public Opinion a Until early 1900s presidents satisfied constitutional obligation to report state of the Union by conveying message to congress i Officer of congress read it to an inattentive audience ii State of the Union address a message to Congress under constitutional directive that the president shall from time to time give to the Congress Information of the State of the Union and recommend to their Consideration such Measures as he shall judge necessary amp expedient 1 big prime time televised affair today b going public engaging in intensive public relations to promote the president s policies to the voters amp thereby induce cooperation from other elected officeholders in Washington 1 presidents view going public as a viable alternative to negotiating with the opposition on Capitol Hill 0 today presidents devote a great deal of timeenergy appealing directly to the American people for support for themselves amp their policies i harder because today cablesatellite tv provides alternatives to listening to presidents address ii in 1960s there were 3 tv stations that changed programming for pres no choice other than to turn off tv iii communicates in other ways 1 appearances 2 travel d president s leadership of public opinion rests on public s appraisal of him as president i when unpopular president issues public appeals citizens inclined to ignore him amp suspect base motives for his appeal xi The Institutional Presidency 1 Detailed staff staff from another gov agency intended to assist the White House 2 Brownlow report report issues in 1937 by the president s committee on administrative management that likened the president to the chief executive officer of a large corporation amp concluded that the president needed a professional staff a Executive office of the President EOP a collection of agencies that help the president oversee department amp agency activities formulates budgets amp monitor spending craft legislation amp lobby Congress Major components established in 1939 by FDR include the White House Office Office of Management amp Budget National Security Council Council of Economic Advisors b White House Office Agency in the Executive Office of the President EOP that serves as the president s personal staff system Although the entire EOP does the president s business the White House staff consists of the president s personal advisors who oversee the political amp policy interests of the administration 0 Gave pres more control over policies but at heavy cost of having to personally manage decisions that othenNise would ve been delegated to professionals in the bureaucracy d National Security Council NSC the highest advisory body to the president on military amp diplomatic issues Established 1947 In EOP Helps pres coordinate the actions of government agencies including the State amp Defense Departments amp the Joint Chiefs of Staff into a single cohesive policy for dealing with other nations 6 Largestmost important presidential agency is Office of Management amp Budget i Staffed by accountants economists tax lawyers ii Creates annual federal budget monitors agency performance compiles recommendations from departments on enrolled bills bills that have been passed in identical form by both houses of Congress amp presented to the president for his signature and performs central clearance over agencies communications with Congress f National Security Council NSC compiles reports amp advice from the State amp Defense Departments amp Joint Chiefs of Staff amp keep pres informed on international affairs g White house staff is larger than ever i 450 full time positions ii 13 tends to public relations iii in early years staff was smaller and informally organized iv through staff competition Roosevelt solved dependency problem that afflicts all principals who rely on agents for infoadvice h Chief of staff system the means by which a chain of command is imposed on the president s staff The system clarifies responsibilities amp shields the president from having to micromanage the staff s routine activities 0 Presidents as Strategic Actors I ii iii iv lll Chapter 8 More responsibilityauthority bigger staffing system greater capacity to speak to public than Framers imagined Still have checks and balances Modern problems Demands of office continue to exceed resources available to incumbents to meet them The Bureaucracy a The American people delegate power to make their collective decisions to elected officials These lawmakers then hand over power to enforce amp implement these decisions to the unelected bureaucrats whom they employ b Delegation is built into Constitution c The Development of the Federal Bureaucracy Framers viewed the executive as source of energy in government Created executive branch agencies with authority to implement laws it passes The remarkable variety of arrangements adopted to administer government policies is largely a product of the endless search by Congress amp the White House for ways to maximize the potential political benefits amp minimize the potential costs each time they decide to exercise amp delegate their authority Modest Beginnings The Dilemma of Delegation 1 First Congress reestablished departments from A of C 2 Drawback executives might also pursue ends contrary to those desired by congressional majorities a Congress leveraged authority to establish executive branch agencies amp set annual budgets to balance president s power The Federalist Years A Reliance of Respectability 1 Small federal gov 2 17891801 3 Washington had small staff 4 Chose wealthy educated men 5 Officials literally had money on the line to do well a Posted bonds of money to give up if they failed to do job b Customstax collectors got portion of sale of c d goods they took from smugglers Heavy fines for bribery These efforts succeeded vi Democratization of the Civil Service The Spoils System 1 Rotation in office advocated by Andrew Jackson An official would serve in a position for a short fixed period then move on to something else perhaps in government but usually returning to private life a Common in Congress in 1800s 2 Spoils system the practice of the winning party dispensing government jobs 3 Rotation in officespoils system meant to democratize administration but led to bureaucratization a Arises when leaders try to solve the huge coordinationdelegation problems raised by large scale collective action 4 Bureaucratic institutions a Hierarchical structure of authority command flows down amp info flows up for coordination amp control Division of labor reap advantages of specialization Abstract rules for what needs to be donewho needs to do it for coordination among specialists control over subordinates amp uniformity of action in each position regardless of who holds it lmpersonality for consistency amp impartiality treat everyone same Career system w appointment amp advancement by demonstrated merit incentives for loyaleffective performance f Specified goals collective action is aimed towards 5 The model bureaucracy purposive machine w interchangeable human parts designed to facilitate collective action while enabling principals to control agents a lmposes heavy conformity costs on bureaucrats amp people they deal with 6 Red tape labyrinthine procedures layers of paperwork demands for strict adherence to form for which bureaucracies are legendary vii Civil Service Reform 1 Only after civil war were calls from citizens amp reformers to adopt government service as a career w job security amp advancement based on merit 2 Whiskey Ring conspiracy of revenue collectorswhiskey distillers to evade taxes exploited positions 3 Reforms extended gradually 4 Pendleton Act 1883 basic of modern civil service Put 10 of federal jobs under merit system amp authorized pres to extend coverage by executive order 5 Merit system problems a Career bureaucrats develop own personalinstitutional interests Rules designed to protect them from political retaliation make it hard to punish them b Become experts in bureau s procedures hidden action principals can t see what agents are doing d Hidden information agents know things principals don t e Agents can play multiple principals against each other d An Expanding Government i Despite dramatic changes in howthe gov operated after Jackson what it did changed very little 1 of federal officials grew but the performed same limited tasks 9 a Collecting dutiestaxes b delivering mail c disposing of public lands in West d granting patents e managing foreign relations f maintaining small armynavy ii after civil war federal gov began expanding its activitiespersonnel iii gov could only grow if Congress amp the president were willing to delegate authority to new agencies iv The Cabinet 1 Presidents can invite whoever they want to their cabinet whether or not they head a department 2 Over the years political entrepreneurs have fought to confer departmental status on the agencies that administer policies affecting their constituents a Competition for scares resources 3 The Earliest Departments a Until 1849 i Treasury ii State iii Navy iv War b 1849 i Department of the Interior 1 Public lands 2 Natural resources 3 Native American affairs c 1870 i Department of Justice 1 Response to civil warreconstruction 4 Clientele Agencies a 1889 i Department of Agriculture 1 farmers b 1903 i Department of Labor 1 Labor unions ii Department of Commerce 1 Business c Demand for clientele agencies emerging national market economy d Industrial revolution s legacy ofdistinct economic interests 5 The Military Establishment a 1947 i Department of Defense 1 WWII US as an international superpower b Cold war military stayed large c Combined army navy and air force into single cabinet level National Military Establishment renamed Defense 2 years later d Pentagon symbol of large expensive military responsibilities assumed by US as a world power 6 Extension of the Federal Domain a 1979 i Department of Health amp Human Services 1 Social welfare agenciesprograms 2 Roots in New Deal b 1965 i Department of Housing amp Urban Development Reviving innercity neighborhoods Solving urban housing problems Linked to civil rights movement LBJ seated first black cabinet official here P9053 c 1966 i Department of Transportation 1 Highways 2 Air carriers 3 Railroads 4 Sea transport 5 Urban mass transit d 1977 i Department of Energy 1 Coal oil natural gas atomic hydroelectric geothermal solar 2 Pres Jimmy Carter 7 The Symbolism of Cabinet Status a Following depts are mostly symbolic b 1979 i Department of Education 1 Carter s promise to teachers groups 2 Needed their support c 1988 i Department of Veterans Affairs 1 Vietnam 2 Woo veteran vote for Reagan 8 The Department of Homeland Security 2002 Response to 911 Bush s executive order Coordinating domestic preparednesscounterterrorism Most farreaching gov reorganization since Dept of Defense i Combined 22 agencies f Had been suggested but not implemented until after 911 g In wartime the president s national security rationale for reducing transaction costs in managing homeland security policy trumped congress s normal reluctance to risk higher conformity costs amp agency losses by broad delegations of authority to the pres v Noncabinet Agencies 1 Independent Executive Agencies a Placed outside depts for political reasons b President may want to avoid bureaucratic layer between him and agency c Other agencies have independent status to keep certain activities under mostly civilian control vi Independent Regulatory Commissions 51997 D 1 Designed to maintain independence from the president amp executive departments 2 Represents congress s attempt to hedge against the potential political costs of delegation by restricting the influence of presidents amp party politics on regulatory decisions 3 Run by boards of commissioners usually 5 a Conduct decision making by majority rule b Appointed by president c Serve fixed staggered terms no less than 5 yrs i Exceed pres term so pres can t keep making new appointments 4 Major reason for delegating authority to an independent agency is to avoid direct responsibility for unpopular decisions 5 3 waves of gov expansion a Late 1800searly 1900s i Interstate commerce commission federal trade commission federal reserve system b1930s i New deal ii Federal deposit insurance corporation securities amp exchange commission national labor relations board c 1960s70s i Consumer product safety commission national transportation safety board environmental protection agency nuclear regulatory commission equal employment opportunity commission 6 Federal Register publishes all new administrative rules that have the force of law vii Independent Government Corporations 1 Like private corporations gov corporations are typically run by a CEO under the supervision of a board of directorscommissioners amp chosen in same manner as members of regulatory commissions e 2 Can buy amp sell property lend amp borrow money sue or be sued 3 Congress can put any constraints it wants on gov corps 4 Examples a US Postal Service i Predates constitution established 1777 by 2nol Continental Congress b Tennessee Valley Authority i New deal ii Electric powerwater transportation c National Railroad Passenger Corporation i 1970 ii Maintain inner city rail passenger service viii lndirect Administration 1 Federal spending has increased 670 in last 60 years 2 Federal workforce has barely grown at all 3 state govs administer Medicaid Temporary Assistance for Needy Families amp other welfare 4 by delegating administrative duties to state amp local go agencies Congress can add programs which voters like without increasing the federal bureaucracy which voters don t like 5 federal gov provides grants to nonprofits amp statelocal govs to implement programs 6 indirect administration has political risks for principals Bureaucracy in Action i Federal civil service mirrors American population more accurately than Congress 1 Minoritieswomen 2 More similar to citizens ii Most want to be good agents iii Bureaucratic Culture amp Autonomy 1 Subject to authority of all branches but many operate with autonomy a Some are more monitored by principals b Strive for autonomy 2 Bureaucratic culture the norms and regular patterns of behavior found within a bureaucratic org different agencies often develop their own norms which shape the behaviors of those who work there 3 Value agency programsservices 4 Conditions that give an agency high morale amp strong sense of mission may encourage it to see independence from political control iv Bureaucrats as Politicians 1 As partisans of their agencies amp missions bureaucrats are necessarily politicians 2 Motives that account for bureaucratic behavior Quest for bigger budget More subordinates More authority Chance to do good Preference for stable predictable environment Opportunity for career security amp advancement 3 These goals can only be achieved thru politics a Mobilizing supporters b Gathering allies c Negotiating deals with other politicians d Adapting to power 4 Most important political relationship is with congress a Congress controls organization authority budgets staffing amp existence of deptsbureaus b Exchange of intelligence anticipate consequences 5 Survival of bureaucrats depends on having appreciative constituency like other politicians 6 If feasible programs produce widely distributed local benefits even when their main purpose is to generate diffuse national benefits v Bureaucratic nfighting 1 Agencies with different missions clienteles skills amp ideologies compete for influence authority over policy control of implementation amp resources f Who Controls the Bureaucracy eeces i More things elected representatives want the gov to do the more discretionary authority they must give to administrators ii Congress has delegated many tasks with little guidelines on authority to be used iii At times gov agencies amp programs have served private interests almost exclusively 1 Congressional majorities have found ways to delegate Department of Agriculture authority without abdicating control 1 Police patrol the type of oversight in which Congress directly monitors agencies to ensure that they are implementing laws faithfully doing this visibly so that bureaucrats will notice that they are being watched and stay in line a Time can be wasted when there is no crime b Investigative hearings c Scientific studies d Field observation 2 Fire alarm the type of oversight in which Congress doesn t act directly but instead sets up processes that allow organized groups amp private individuals to detect failures in the implementation of laws amp to alert Congress a Majority of oversight v Methods of Congressional Control 1 2 3 Congress creates amp empowers agencies by ordinary legislation and can eliminate or change them Most agencies require new budget appropriations every year to keep functioning Hearings amp investigations bureaucrats called before subcommittees to explaindefend decisions Mandatory reports congress requires executive agencies even pres to report on programs Legislative vetoes allow one or both houses of Congress sometimes even indv Committees to veto by majority vote agency s policy proposals a Declared unconstitutional 1983 by supreme court but they still do it 6 Committee amp conference reports instruct agencies how Congress expects them to use their discretion 7 Limitation riders attached to appropriations bills Forbid an agency to spend any of the money appropriated on activities specified by Congress in the rider a Used to block agencies from issuing regulations opposed by congress 8 Inspectors general every agency who audit agency books amp investigate activities on congress s behaH 9 Government accountability office audits programs amp agencies amp reports to congress on their performance 10 Congress can t tell bureaucrats what to do but it can tell them how to do it a Administrative Procedure Act 1946 APA declares procedures b Bureaucrats have to be public with their ac ons 11 When an agency wants to make a rule it has to give public notice in the Federal Register a Then agency responds to public comments b Makes rulemaking a public act c Give members of congressagencies advance notice of political fallout that regulations might cause 12 The APA sets up a fire alarm mechanism that alerts members of congress when delegated authority is being exercised in a way that might hurt them politically 13 Standing the right to bring legal action a Enables groups amp their lawyers to enforce compliance thru the courts ensuring their interests won t be ignored 39 The President amp the Bureaucracy 1 President has power to appoint senior gov officials amp other congressionally conferred grants of authority a Institutional realities impose formidable barriers to presidential influence 2 The Power of Appointment a Presidents pursue policy goals by appointing officials loyal to them amp their ideas b But if enough members of congress oppose the objectives of the president s appointments they can force agency back in line c Agencies in US gov with most presidential appointments usually perform worse than agencies with more career civil servants 3 Senatorial Approval a Presidential appointments require Senate approval i Many appointments withdrawn after unfavorable committee votes b Some nominations not made because pres doesn t think it will be approved c Senators use approval process to extract promises from appointees about what they will do in office d President may also have to satisfy clientele groups because they may also benefit from presidential appointments i Appointments as symbolic payoffs to important factions in party s electoral coalition e Some appointed officials change from being loyal to becoming agents of their departments instead of the pres 4 Mechanisms for Presidential Supervision a Presidents have built up supervisory bureaucracy in Executive Office of the President to gain more control over activities of the federal bureaucracy b Control instrument office of management amp budget c When congress ignores president s recommendations presidents may use the veto to nudge them closer to their budget preferences d Presidents have more control during national crisis because they have authority over agencies involved in diplomacynational defense vii The Courts amp the Bureaucracy 1 Judiciary also shares authority over bureaucracy 2 Disputes between gov amp private individuals over whether gov is acting lawfully goes before the courts as normal lawsuit 3 Judge treats gov as any other party in a lawsuit 4 Under the APA any agency dealing with individual cases like a court must act like a court a Hold hearings conducted by neutral referees administrative law judges b Decisions that violate those procedures can be challengedoverturned in federal court 5 Federal courts interpret the APA as requiring almost as much procedural care in making rules as in deciding cases 6 Congress can rewrite the law if the courts invalidated rules that solid HouseSenate majorities want to see implemented a May alter court s jurisdiction over administrative matters viii lron Triangles Captured Agencies amp lssue Networks 1 Politics of program administration gives agency staff members of Congress amp organized interest groups powerful incentives to form mutually beneficial alliances to manage policy in their areas of specialization a Iron triangle a stable mutually beneficial political relationship among a congressional committee or subcommittee administrative agency amp organized interests concerned with a particular policy domain 2 Politics of regulation allows regulators to be captured by the very interests they re supposed to regulate a lron triangles amp captured agencies survive only as long as the costs they impose on everyone are small enough to avoid attracting serious attention from political entrepreneurs in Congress or White House who may be scouting for popular issues to champion 3 Issue networks a loose informal amp highly variable web of relationships among representatives of various interests who are involved in a particular area of public policy a Agencies adapted b When political environment changes gov agencies have little choice but to change too 9 Bureaucratic Reform A Hardy Perennial 39 every modern president has viewed the federal bureaucracy as a problem that needs fixing but federal bureaucracy is hard to reform and harder to prune because its actions amp structure have a political logic of their own The Logic of Red Tape 1 Red tape proliferates because it helps principals control amp monitor their agents the goal of the APA and helps agents demonstrate to their principals that they are doing their jobs correctly Many rulesprocedures adopted to ensure fairequal treatment of each citizen a Prevent unaccountable behavior Red tape often springs directly from congress s desire to control administration Although congress rails against red tape in general it views with suspicion attempts to reduce the controls that generate it a Successful efforts at easing controls could reduce congressional ability to monitor amp influence administration a risk congressional majorities have been reluctant to accept esp when the other party holds the White House Bureaucratic focus on process rather than product arises from reality that unlike private businesses gov agencies have no bottom line against which to measure the success or failure of their enterprise iv The Bureaucratic Reward System 1 Entrepreneurs take risks proportionate to prospective rewards while civil servants seldom profit personally from their attempts to make agencies more productivecustomerfriendly 2 If an alarm sounds and a routine is followed the routine rather than the bureaucrat gets the blame 3 Merit system doesn t encourage entrepreneurial risk taking 4 Government pursues overlapping conflicting or disconnected goals in response to the diverse demands Americans place on it a Each agencyprogram reflects the coalition of forces that brought it into being b Different coalitions want different things amp design different administrative institutions to get them 5 the problem of bureaucracy is not bureaucracy but politics a it s impossible to do anything without changing power relationships among interests amp institutions IV Chapter 9 The Federal Judiciary a Setting the Stage for Judicial Review i Federalists passed judiciary act of 1801 1 Designed to protect Constitution against perceived DemocraticRepublican schemes sharply increased the number of district and appeals courts and conveniently created new judgeships for aspiring Federalists 2 Shrank supreme court from 6 to 5 members 3 John Marshall new chief justice ii Democratic republicans derided the judiciary as a hospital of decayed politicians and made clear their intention to repeal the judiciary act as soon as their congress opened the following December iii Judicial review the authority of a court to declare legislative and executive acts unconstitutional amp therefore invalid iv Nearly everyone appears to have accepted that the Constitutions supremacy clause article VI allows the supreme court to exercise judicial review and veto state laws that trespassed on federal jurisdiction or violated the Constitution v Stuart v Laird 1 Supreme court rules that congress has authority to reorganize the judiciary 2 Federalist party would never again win control of presidency or either chamber of Congress vi Marbury v Madison 1 Established Court s coequal status among branches of the gov 2 Writ of mandamus judicial instruction to a government officer to perform his duty amp deliver the commissions a This gov officer was secretary of state James Madison 3 Bad case for a weak Court apparent nowin situation 4 Marbury case provided a precedent that the other branches actors didn t repudiate and a rationale for the Court s broad authority to declare acts of Congress and of the president unconstitutional 5 Expansion of judicial review b Three Eras of the Court s Judicial Review i changes in judicial review 1 17901860 low 2 1920s30s high 3 1960s high again ii Issues in important cases in the 3 eras 1 Nationstate authority 2 Gov regulation of the economy 3 Civil rightsliberties iii Nation vs State 1 Chief justice john Marshall maintained that the national government s legitimacy was both independent of amp superior to that of the individual states amp concluded that the power of judicial review applied to the actions of state govs 2 McCulloch v Maryland amp National Supremacy a b C d e 1819 Democraticrepublicans wanted to tax national bank made by federalists out of existence Marshall declared that state taxation of federal property is unconstitutional State argued that nothing in constitution allows federal gov to charter a national bank but Marshall said necessary and proper clause gives congress a broad mandate to use all means which are appropriate Federal authority trumps state authority i Reversed in Dred Scott 3 Dred Scott v Sandford amp States Rights a b c d e f g h iv Regulating 1 From 1857 Brought nation to brink of civil war Claimed that blacks weren t citizens under constitution Ruled that escaped slaves in the north had to be returned to owners Chief justice Roger Taney selected by pres Andrew Jackson Outlawing slavery north of the MasonDixon line is unconstitutional Public outcrydiscredited Court After civil war 14th 15th amendments ratified the National Economy 1860s1930s 2 The Primacy of Property Rights a b c d Framers saw right to private property as fundamental Sympathy for property rights Court defined corporations as persons Lochner v New York i 1905 ii Court struck down new York law restricting the hours of bakers to a max of 10 hrsday or 60 hrsweek iii Said it interfered with individual s rights e 1920s Court more conservative on economic issues i Struck down laws regulating business f Court ruled against regulation during depression g A National Consensus amp the Court s About Face i Roosevelt proposed plan for revamping judiciary ii Courtpacking plan an attempt by FDR in 1937 to remodel the federal judiciary Its purpose was to alleviate the overcrowding of federal court dockets by allowing the president to appoint an additional Supreme Court justice for every sitting justice over the age of 70 The legislation passed in the House but failed in the Senate by a single vote If it had passed Roosevelt could ve added 6 new justices installing a new Court majority sympathetic to his New Deal programs iii However Court began to uphold same type of economic regulations it had been rejecting for the past 2 years iv Eventually justices diedretired so Roosevelt appointed his own v Court s rulings shifted power dramatically to federal gov and away from the states v The Rise of Civil Rights and Civil Liberties 1 Began 1940s 2 Relationship between individual and government 3 Benefited criminal defendants used bill of rights 4 NAACP challenged segregation vi A 4th Era Reasserting Judicial Review amp a Return to States Rights 1 Conservative supreme court chief justice William Rehnquist appointed by Nixon chief justice by Reagan 2 Sympathetic to reigning in power of federal gov over the states 3 Rehnquist O Conner Scalia Kennedy Thomas 4 United states v Lopez a Court struck down legislation as exceeding congress s powers under the commerce clause b Court said that gun possession in a school zone was not economic activity that could substantially affect interstate commerce 5 United states v Morrison a Court struck down part of violence against women act b Gender motivated crimes of violence were not economic activity 6 Concern that federal gov had gone too far 7 Deeply involved in administration of national policy 8 Overseeing bureaucracy s performance 9 Acts as extension of the bureaucracy c The Structure of the Federal Judiciary i US has hundreds of federal courts but only Supreme Court is mentioned explicitly in constitution article lll ii Constitutional courts category of federal courts vested with the general judicial authority outlined in article III of the Constitution The most important are the Supreme Court the courts of appeals and the 94 district courts Their authority derives from that of the Supreme Court and they are supposed to conform to its decisions iii Supreme Court s effectiveness rests on delegation persuading the lower federal judiciary by the strength of its Opinions to implement its policies iv Jurisdiction in the Federal Courts 1 Federal courts have limited jurisdiction 2 Federal courts are authorized to hear two types of cases a Those concerning federal questions b Those involving citizens of different states 3 Jurisdictional questions can be complicated by the face that state courts also have jurisdiction over federal civil claims unless congress has given federal courts exclusive jurisdiction over certain kinds of federal cases v The Supreme Court s Delegation 1 Federal judiciary 3 layered pyramid a 94 district courts the trial courts of original jurisdiction L 590judges ii Every state has at least 1 iii 3 largest states California New York Texas have 4 iv Most cases in the federal system must start there b 13 courts of appeals L 158judges ii 11 separate geographic regions circuits cover the 50 states iii 12 is assigned to DC iv 13th is US Court of Appeals for the Federal Circuit 1 Has nationwide jurisdiction 2 Deals with specialized federal law like patent amp trademark law v 3judge panels to review district court decisions c Supreme Court is court of final appeal i May hear cases appealed from the lower federal courts or directly from the highest state courts when an important constitutional question is in dispute ii Depends heavily on the lower courts behaving like loyal agents iii Wields few administrative controls over the lower courts vi The Limits of Internal Control 1 Life tenure of the judges insulates the judiciary from the other branches and each other 2 Only congress can remove a federal judge amp only for serious offenses 3 Supreme court can t distribute the caseload to the lower courts a Distribution of cases depends on geographical jurisdictions created by congress 4 Policy differences occur when lower court judges take advantage of ambiguities arising from the particular facts of a case or in the language of the Court to avoid complying with its preferences a Happened with Brown v Board b Court ordered public schools to desegregate with all deliberate speed instead of setting a deadline inviting them to move slowly 5 Supreme court can reverse lower court decisions so many judges make rulings that align with supreme coun d Judicial Decision Making i Supreme court decides less than 100 cases annually 1 of the appeals it receives ii Selecting Cases 1 1925 number of appeals began to grow 2 Writ of certiorari litigants must file requests that the Court order a lower court to send it the records of the trial in question a Helped Supreme Court gain control of its caseload 3 Rule of four when 4 justices support hearing a case the certiorari petition is granted 4 Takes a long time to sift through petitions staffed only by a few law clerks Each justice can hire up to 4 clerks usually law school graduates 5 Because justices want to weigh in on cases where they think the lower courts have made an error cases granted certiorari have a good chance of being overturned 23 are every year on avg 6 Resolving LowerCourt Disagreements a Justices look for cases they can use to resolve ambiguities amp conflicting lowercourt decisions 7 Taking Cues From Others a Court allows interested groups no party to the litigation interest groups businesses and gov agencies among others to submit amicus curiae briefs arguing that a certiorari petition should be granted or denied b These groups testify in front of supreme court i Most important is federal gov c Solicitor general the official responsible for representing the US government before the Supreme Court A ranking member of the US dept of Justice d Presence of amicus curiae briefs from prestigious sources increases a case s chances of being accepted by the Court e The gov and interest groups promote cases they think will attract the Court iii Doctrine Policymaking by the Court 1 Judicial doctrine the practice of prescribing in a decision a set of rules that are to guide future decisions on similar cases Used by the supreme court to guide the lower courts in making decisions a provides info for estimating how far lower courts can diverge from supreme courts preferences before being reviewed amp overturned 2 procedural doctrine governs the specific ways in which the lower courts should do their work a stare decisis let the decision stand In court rulings a reliance on precedents or previous rulings in formulating decisions in new cases i Can t strictly determine the outcome of many cases ii Judge must decide if precedent applies to particular case b Standing the right to bring legal action Sufficient personal stake in the outcome to bring the case to court 3 Substantive doctrine similar to policymaking Guides judges on which party in a case should prevail a Although the ideology of judges matters most at higher levels where doctrine is made current doctrine often leaves judges with abundant discretion in lower courts b A judge who in the absence of a clear violation of the Constitution or established doctrine will defer to the policies emanating from the elected branches is described as exercising judicial restraint c Those who change doctrine to conform with their view of the constitution in a changing society are exercising judicial activism i Today the term activistis often used to describe a judge who seeks to substitute their policy views for the views of the legislature iv Deciding Doctrine 1 Every supreme court decision contains 2 elements essential to creating doctrine a The vote that decides the case b The opinion a statement in which the majority explains the rationale for its decision in a way that creates doctrine and the minority articulates why it dissents i Author of an opinion voices the majority position amp in doing so strongly influences the shape of that judicial policy ii Once drafted goes through prolonged internal bargaining as writer tries to persuade other justices that its legal arguments are correct iii Often have to change language or blur message so everyone in the majority can agree c The prevalence of closely divided decisions is a modern development d Dissenting opinion the written opinion of one or more Supreme Court justices who disagree with the ruling of the Court s majority The opinion outlines the rationale for their disagreement e Concurring opinion a written opinion by a supreme court justice who agrees with the decision of the court but disagrees with the rationale for reaching that decision 2 passage of Judiciary Act 1925 a Gave supreme court more control over caseload b before that supreme court decided many cases i more unanimous opinions 3 rise in opinion writing a Court stopped contesting authority of congress and pres to regulate economic activity and began applying bill or rights to state not just federal actions b Rise of divided party control of gov e The Supreme Court s Place in the Separation of Powers i Court doesn t always have last word on public policy ii Absence of Judicial Enforcement 1 Absence of enforcement authority has allowed congress and pres to sometimes ignore Supreme Court rulings a Ex Jackson now let them enforce it forced Cherokee to give up their lands trail of tears after supreme court said this was unconstitutional 2 Presidents realize that congress is more willing to relax control when it knows it can easily reassert its preferences a By continuing to honor these statutory provisions designed to create more flexible principalagency relations the elected branches have colluded informally to overrule the supreme court s verdict on the unconstitutionality of the legislative veto iii Constitutional amp Statutory Control 1 Several provisions of the constitution equip congress and the pres with the power to rein in the supreme court when they disagree with its decisions 2 Constitution didn t specify size of supreme court but since 1869 number has been set at 9 3 Congress can also move to amend the constitution 4 Supreme court can t impose a radically different interpretation of the constitution for long without a reaction from the electoral branches iv Department of Justice 1 Attorney general the head of the department of justice Can select cases and choose to file in courts where the Justice Department is most likely to win amp create precedent for its legal position on an Issue 2 Includes all 94 US attorneys for each federal district a Presidential appointment b Department supervision 3 Houses agencies like FBI drug enforcement administration etc v Judicial Recruitment 1 Constitution provides that all federal judges shall be nominated by the pres with the advise and consent of the senate 2 Judicial nominations president nominates senate accepts or rejects a Opposite of a veto b Gives politicians chance to influence policies of judiciary c Guarantees that pres and senate will carefully consider the nominees political views 3 Presidential Appointments Nominations to the district courts have concerned the senators from the state where the court is located more than the president Senatorial courtesy an informal practice in which senators are given veto power over federal judicial appointments in their home states Presidents impact on the supreme court depends on the frequency with which vacancies arise which pres can t control when a vacancy occurs at any level of the federal judiciary the pres enlists several criteria in choosing a nominee i try to guess how nominee will vote on controversial issues of the day ii select nominees from their party iii interview carefullyexamine their work iv might use as opportunity to reward a political ally or personal associate v also focus on religion sex race to build support with constituents 4 Senate Confirmation a One pres has named someone to fill a judicial vacancy the Senate Judiciary Committee schedules confirmation hearings so it can make recommendation to full chamber Goes through easily when same party controls both branches lf opposite party controls senate look at nominee more carefully and happens slowly Thurmond Rule refers to an opposition party s decision to block further confirmations of appeals court nominees during an election year Confirmation veto offers an opposition controlled Senate more influence than the generally small number of rejected nominees would indicate Because judges do make policy it s fitting that the pres and congress take their ideology into account and understandable that they prefer judges who agree with their political views 5 Turnover as the Source of Shifting Judicial ldeology a Judges appointed by democratic presidents vote liberally and vice versa b Justices appointed by republicans Reagan and Bush ushered in 4th Era impacted balance of power between federalstate govs c Even though district judges opinions are constrained by the appeals courts and supreme court they still favor the ideology of pres who appointed them d Since they are appointed for life judiciary preferences can be different from those in the other branches i Can cause conflict f Who Guards the Guardians To enforce its policies judiciary depends on the compliance of other institutions Congress can nullify an adverse judicial decision by writing a new public law that addresses the Court s concern etc Limits on judiciary 1 Limited veto authority offered by judicial review 2 Huge caseload 3 Lack of enforcement authority 4 Life tenure of members 5 Presidents nominate senate confirms 6 Decisions rarely final But doctrine of judicial review has worked because it doesn t foreclose effective responses from the other branches
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