Apg Unit 3 Notes

7/31/2019 Apg Unit 3 Notes

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Caroline Margiotta

8: The Presidency 4/1/2012 1:13:00 PM

I. Roots of the Office of President of the United States

Early Exec. Pwrs:o Colonial-era royal governor had pwrs of appointment, military command,

expenditure, lawmaking and pardon

o Art. Of Confed.: No exec. Branch; Continental Congress Presidents held noactual pwr.; eventually agreed on need for executive pwr. t/b vested in 1

person

Presidential Qualifications & Terms of Officeo Constitution: Natural-born citizen, >35 years old, resident of US for >14

years (rxn. to many candidates being fmr. Diplomats)

o Most have prior elective experience; no constitutional bars to minoritygroups serving as president

o 22ND Amendment (1951): Presidents can serve 2 terms if they wereelected to the first or 10 years if they came to office via the death or

impeachment of a predecessor.

o VPs only intended function was to serve as an immed. Official stand-in forpresident i/c/o death or emergency; eventually became Senate presiding

officer (b/c Framers feared that a PO from the Senate-> Senate short an

officer)

o Impeachment: Power delegated to HOR in Constitution to chargepresident, VP, or other civil officers with Treason, Bribery, or other high

Crimes and Misdemeanors; first step in removing govt officials from

office

Only Andrew Johnson and Bill Clinton have been impeached byHOR; no one removed by Senate

1974: Nixon resigned over Watergate Scandalo Executive Privilege: Implied presidential pwr; allows pres. to refuse to

disclose info. Re: confidential convos or natl security to Congress or the

judiciary (Clinton & Bush asserted)

US v. Nixon (1974): Ruling on presidential pwr; found that noabsolute constitutional exec. privilege allows pres. to ref. to comply

w/ court order to produce info. needed in criminal trial.

Rules of Successiono Presidential Line of Succession (since 1947):


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VP-> Speaker of the House-> President Pro Tempore of theSenate-> Secy of State-> Secy of Treasury-> Secy. Of Defense->

Atty. General-> Secy of the Interior-> Secy. Of Agriculture, etc.

Never used b/c VP always present to take over officeo 25th Amendment (1967): Est. procedures for filling vacancies in

presidential and vice presidential office; dealing w/ presidential disability

If a VP vacancy occurs, P can apt. new VP (subj. to approval (bysimple majority) of both houses of Congress

VP and maj./ Cabinet can deem pres. unable to fulfill duties; VPmay become acting pres. if P is incapacitated; P can voluntarily

relinquish powers

II. Constitutional Powers of the President

Appointment Powero Helps president enforce laws passed/ Congresso Ambassadors, public Ministers & Consuls, SC judges, etc.o Can make 3k appts to his admin;Can remove many appointees @ willo Appts.> 75k military personnelo Pres. can set policy agenda for nation, esp. via court appts.o Look for loyalty, competence, and integrityo Cabinet: formal body of pres. advisors who head 15 executive depts.; P

can add others to this body (97% confirmed until Clinton)

o If appts. Rejected, P left w/o first choices, has more strained rel. w/Senate & public

Convening Congresso Reqd to give State of the Union speecheso Can convene Congress (S &/or H) on extraordinary occasions

Making Treatieso Can make treaties w/ foreign natns provided that all appr. By >2/3 of

Senate

o Can receive ambassadors (recog. existence/ other nations)o Senate ratifies ~70% of treaties; only 16 treaties rejected (incl. Wilsons

Treaty of Versailles, 1919)

Might require substantial amendment of a treaty prior to itsconsent (e.g. Carters Panama Canal Treaty, 1977, which turned

canal over to Panama)


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Pres. may unsign treaties (e.g. Bushs withdrawal of support forthe Intl Criminal Court)

I/c/o trade agreements, P m/b mindful of Congressional wishes;Congressional fast track authority allows pres. to negot. trade

agreements while Cong. c/n alter accords

Fast-track trade agreements c/n/b amended, must be votedon w/i 90 days

o Executive Agreement: Formal govt agreement entered into by president;d/n require the advice and consent of the U.S. Senate; not binding on

subsequent admins., but used since 1900 more frequently than treaties

(e.g. NAFTA)

Vetoeso Veto Power: Formal, constitutional authority of the president to reject bills

passed by both Houses of Congress; prevents them from becoming law

w/o further congr. action

o Veto now a qualified negative: Pres. can veto any Congr. act, but Cong.can override exec. Veto by 2/3 vote in each house (rare to see Cong.

muster enough votes-> 2,500 vetoes, but only 100 overridden)

o Line-item veto: Power to delete part of a bill passed by legis. involvingtaxing or spending; ruled Unconstitutional by USSC in Clinton v. City of

New York(1998)

Presiding over the Military as Commander in Chiefo Congress can decl. war via Constitution, but pres. since Lincoln have used

Commander in Chief clause + chief exec. duty to take care that Laws be

faithfully executed to wage war

o Vietnam War conducted w/o Congr. decl./ war; Cong. passed Gulf ofTonkin Resolution (1964), which LBJ supported

o War Powers Act (1973): Pres. ltd. in deployment of troops overseas to 60day period in peacetime (extended for extra 30 days for withdrawal)

unless Cong. explicitly approves longer period

Nixon vetoed, Congress overrode 2001: Bush complied w/ act when sought joint resolution auth. The

use of force against terrorists-> more open-ended auth. to wage

war tan predecessors

Pardoning Power


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o Pardon: exec. grant providing restoration of all rights & privileges ofcitizenship to a specific individual charged or convicted of a crime

o Gerald Ford pardoned Nixon for any offenses against the US which he m/hcommitted in office

o Washington, Adams, Madison, Lincoln, AJohnson, TRoosevelt, Truman, &Carter have all used pardons to grant amnesty for illegal acts

III. Development & Expansion of Presidential Power

Establishing Presidential Authority: The First Presidentso Washingtons precedents:

Est. primacy of natl govt 1794: Put down Whiskey Rebellion using militia of 4 states

(est. idea of federal supremacy; exec. auth. to collect taxes

levied by Congress)

Regular mtgs. w/ advisers-> Cabinet sys. Asserted importance of P in conducting foreign affairs

Sent envoys to negot. Jay Treaty w/ GB; asserted auth. tonegot. Treaties & submit them to Senate for approval;

Senates fn. Ltd. to appr./ treaties, not negot. w/ foreign

pwrs.

Ps Inherent Pwrs. (possessed simply b/c/o sovereignty) basis forproclaiming policy of strict neutrality drg. war b/w Fr. & Br.; P.

pwrs. To conduct dipl. Relations c/b inferred from Constitution

o Adams poor leadership skills-> div. b/w Feds. & Anti-Feds., prob.Quickened devel./ pol. parties

o Jefferson: expanded Ps legislative role, esp. drg. Louisiana Purchase(1803)

Incremental Expansion of Presidential Powers: 1809-1933o Post-Jefferson, weak presidents & strong Congress-> Congress became

most powerful branch of govt

o Andrew Jackson: first strong natl ldr who rep. > landed elite Jacksonian democracy-> western frontier, egalitarian spirit; loved

by masses

Used image & personal power to veto 12 bills, reassert supremacyof natl govt by facing down SCs nullification of federal tariff law

o Abraham Lincoln: Civil War-> Unprecedented assumption of presidentialpowers b/c/o inherent pwrs.; suspended habeas corpus (would allow


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prisoners to petition t/b released, but needed to jail those suspected of

disloyal practices); expanded allowed size of U.S. Army, blockaded

southern ports (initiating war w/o consent of Congress); closed U.S. mail

to treasonable correspondence

Growth of the Modern Presidency:o 20th-21st C: Presidential decision-making more important; traced/ four-

term (12 years b/c/o death) presidency of FDR

1933: FDR took office amidst Great Depression; asked Congressfor broader exec. powers to address emergency

New Deal: FDRs Relief, Recovery, Reform program to bring USout of GD

New bureaucracy to implement pet programs; personalizedpresidency via fireside chats

IV. Presidential Establishment

Vice President:o Chosen to balance (politically/geographically) presidential ticket; little

thought to poss. that he m/b president

Sometimes of a diff. party than the president (e.g. FDR (D-NY) andJohn Nance Garner (R-TX) in 1932)

o Pwr. of VP dependent upon how much pwr P is willing to give him Carter 1st to give his VP, Walter Mondale, pwrs. (incl. an office) Dick Cheney had unprecedented access to Pres. Bushs ear

Cabineto No basis in the Constitution, so informalo Membership based on tradition & presidential discretiono Incl. heads of major executive depts.+ VPs _ other agency heads/ officialso Helps P execute laws & assists him in making decisionso Interest group pressures-> creation of new executive depts.

Farmers-> Dept. of Agriculture; business people-> Commerce;workers-> Labor; teachers-> Education

o Reliance on Cabinet secretaries has decreased First Lady

o Informal adviserso Abigail Adams= early feminist (Remember the Ladies in laws)o Edith Bolling Galt Wilson= most powerful first lady; became Wilsons

surrogate after his paralysis and oversaw whom & what he saw


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o Eleanor Roosevelt= syndicated columnist, lecturer, Democratic Partyactivist, mother, and US delegate to the UN

o Laura Bush-> improve literacy, womens legal status in Afghanistan &Iraq; fundraiser

Executive Office of the Presidento Created by FDR in 1939 to help president oversee exec. branch

bureaucracy

o Comprised of several advisers & offices in Exec. Office Bldg. next to WhiteHouse

o Natl Security Council (1947): advises president on US military affairs &FP; includes P, VP, Secys. Of St. & Dfns, & sometimes chairs of Joint

Chiefs of Staff & CIA directors

o Council of Economic Advisers, Office of Management & Budget, Office ofthe VP, Office of the US Trade Representative

o Depending on type of EOP offices they include, P can give clear indicationsof their policy prefs.

White House Staffo Personal assistants to P: senior aides & deputies, assistants w/

professional duties, clerical & admin. aides: ~500

o Not subj. to Senate confirmation, d/n have div. loyalties-> pwr. derivedfrom personal rel. w/ President, no indep. Legal auth.

o Chief of staff: enables smooth running of staff & exec. branch; prot. Pfrom mistakes, help implement policies advantageous to P

V. Presidential Leadership & the Importance of Public Opinion

Presidential Leadership

J.D. Barbers

Presidential

Personalities

Active Passive

Positive F. Roosevelt, Truman,

Kennedy, Ford

Taft, Harding,

Reagan

Negative Carter, G. Bush, Wilson,

Hoover, LBJ, Nixon

Coolidge,

Eisenhower

o Active-positive Ps approach presidency w/ zest for life, drive to lead &succeed

o Passive-negative Ps fail to take full adv. Of resources avail. To EO


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o Ps who exercise leadership inc. pub. Attn.. to particular issues Mentions of policies-> more citizens mention those policies as most

important problems

Neustadt: power to persuade= Ps ability to infl. Members ofCong. & the public

Diff. b/w great & mediocre Ps lies in ability to grasp importance ofleadership style; needed t/b active

Going Public: Mobilizing Public Opiniono Ps have long used bully pulpit in an effort to reach out to the public to

gain support for their programs

o Direct appeals to the electorate= going public Goes over heads of MCs to gain popular support so that people can

pressure elected officials

o Clinton used Larry King Live, Nightline, and black-tie dinners; GWB gavespeeches on the war in Iraq @ military academies

Publics Perception of Presidential Performanceo Approval ratings measure ability to enact pub. Policy simply b/c/o name &

office

High approval rtgs-> public appearances can help a candidate fromthe presidents party to win an important seat

Low approval ratings-> prevent favored policies from beingenacted on Capitol Hill (e.g. 2008, when House Republicans

d/n/w/t/b affil. w/ GWBs emergency financial bailout plan)

o Pres. popularity generally cyclical; highest lvl. Of public approval @beginning of their terms (try to take adv./ honeymoon period to get

prog. Passed by Cong. ASAP); ea. action-> approval/disapproval by some

o Since LBJ, only 4 presidents have left office w/ approval rtgs. > 50%o G. Bush, Clinton, GW Bush exper. Surge in approval rtgs. Drg. course of

presidencies-> allows presidents to ach. Some policy goals they believe

are good for the nation (even if unpopular)

E.g. on heels of Persian Gulf War & 9/11 attackso GWB: one of the longest rallies in history

Harmed by pol. scandals, escalating violence in Iraq, rising gasprices

Approval rtgs. from 50% (2005) to 35% (2006) to 26%(2008)


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Correlates w/ Congressional Republicansindependence

VI. Towards Reform: The President as Policy Maker

Presidents Role in Proposing & Facilitating Legislationo FDR-> 104th Congress (R): Public looked to president to formulate

legislative plans to propose to Congress

o 1994: Electorate wanted Congress to reassert self in legisl. process Contract w/ America: R call for Cong. to make new laws; R

congresses failed to pass elements of Contract; Clintons presence

in budgetary process-> dec. potential role of Congress

o Presidents continue to play major legislative agenda-setting role Most imp. pwr.= ability to construct coalitions w/I Congress that

will work towards psg./ his legislation

FDR & LBJ helped by Democratic majorities, but worked wellw/ Congress

Hard to get Congr. to pass programs, esp. i/c/o divided govt Imp. To propose key plans early in admin., when approval ratings

are highest

Can bolster support by calling on Ps own pol. party As informal party leader, should be able to exploit position in

Congress; works best when P carries members of his own party

into office on his coattails

Budgetary Process & Legislative Implementationo P sets natl policy & priorities through budget proposals & continued

insistence on Congr. passage

o Budget proposal outlines progs. P wants, indic. importance of each byamt. of funding requested for each

o 1939: Bureau of the Budget (created 1921 to help P tell C how muchmoney he needed to run the exec. branch) made part of the EOP.

o 1970: Office of Management and Budget (fmrly. Bureau of the Budget):Prepares presidents annual budget proposal, reviews budget & programs

of exec. depts., supplies econ. Forecasts, conducts detailed analyses of

proposed bills and agency rules.

Policy Making Through Executive Ordero Executive Order: Rule/ regulation that has the effect of law. All Eos must

be published in the Federal Register


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FDR & Truman used to seize mills, mines, etc. for producingsupplies for WWII & Korean War

Youngstown Sheet and Tube v. Sawyer(1952): USSCstated that Truman overstepped boundaries of his office by

seizing mills

Truman: EO to end segregation in the military EO 11246: Instituted affirmative action (LBJ, 1966) Ronald Reagans EO to stop federal funding of fetal tissue research;

groups providing abortion counseling

GWB invalidated 1978 Presidential Records Act (had est. that allpresidents records belonged to the American people)

o Signing Statements: Comments on the bill a president signs; sometimesincl. controversial claims that some of the legislation= unconstitutional, so

he intends to disregard it or implement it differently.


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Caroline Margiotta

9: The Executive Branch & the Federal Bureaucracy 4/1/2012 1:13:00 PM

I. Roots of the Federal Bureaucracy

Intro:o Bureaucracy: Set of complex hierarchial depts., agencies, commissions, &

staffs that exist to help CEO or President to carry out his/her duties; m/b

private org. or govt units

The Civil War and the Growth of Governmento Thousands of addtl employees added to existing and new govt depts.o Poor harvests & distribution problems-> Dept. of Agriculture (1862; given

full departmental status by 1889)

o 1866: Pension office-> benefits to Union veteranso 1870: Dept. of Justice (headed by Atty. General)

Spoils System-> Merit Systemo Spoils system: Firing of public-office holders of a defeated pol. party in

order to replace them w/ loyalists of the newly elected party

Big under Andrew Jackson, who filled many post office positions w/his supporters

Form of patronage (jobs, grants, or other special favors given asrewards to friends & political allies for their support)

o James A. Garfield elected in 1880, reformers called for reform topatronage sys.

o Rutherford B. Hayes wanted merit sys. b/o test scores & ability Not passed by Congress Job seekers wanted secure positions before a merit sys. Imposed,

so hounded Garfield for jobs (tried to reform)

o Pendleton Act: Reform measure that created the Civil Service Commissionto administer a partial merit sys.

Classified federal svc. By grades (appts. Made b/o results ofcompetitive exam)

Illegal for federal pol. appointees t/b reqd to contribute to aparticular pol. party

o 10% of positions in federal civil svc. Sys (for selection of bureaucrats)were covered by law

o Merit sys: fed. Civ. Svc. jobs classified into grades/ levels; appts. madeb/o performance on competitive exams

Regulating the Economy


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o Interstate Commerce Commission (1887): Created in wake of big businessgrowth, price fixing, & unfair post-Civil War business practices, a/w/a

public outcries over high rates charged by railroad companies for hauling

freight

First Independent Regulatory Commission (Congressionally-createdagency concerned w/ specific aspect of the economy)

Indep. Of direct presidential auth. Commission members apptd. by president; hold jobs for

fixed terms, but not removable unless they fail to uphold

their oaths of office

Creation-> shift in focus from service to regulation ofindiv. & property rights

o TRoosevelt (1901, progressive Republican) inc. regulation of economy 1903: Inc. size of the bureaucracy when he asked Cong. to est.

Dept. of Commerce & Labor

New govt regulations to help workers & to ctrl. Pwr. ofmonopolistic corporations

1913: Woodrow Wilson created sep. Depts. For Commerce& Labor

1914: Federal Trade Commission (protect small businesses& public from unfair competition, esp. from big business)

1913: 16th Amendment affected sz. & growth potential ofgovt

Cong. could implement federal income tax New funds to support new federal agencies, etc.

20th C. Governmental Growtho 1920s-1929: Common bank failures-> stock market crash & Great

Depression

FDR created new govt agencies to regulate business practices &economy

Popularly supported b/c people considered it the fed. Govts job torevive the economy

o WWII: Male workers became soldiers; women entered the workforce Inc. tax rates (permanently) New monies & veterans demands for services-> bigger govt


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Government Issue (G.I.) Bill-> college loans for returningvets, lower mortgage rates so they could buy homes

Veterans Housing Authority-> homes purch. w/ loanshad to meet certain specs.

o Civil Rights Mvt., LBJs Great Society programs-> expanded bureaucracy &presidential pwr.

Equal Employment Opportunity Commission (1965) created by Civ.Rights Act of 64

1965: Depts. Of Housing & Urban Development (HUD) 1966: Dept. of Transportation

II. The Modern Bureaucracy

Natl Govt Private Business

-For public good, non profit

-Seek re-election

-Money from taxpayers

-Diffic. To determine to whom

bureaucracy is responsible

-For-profit

-Money from customers

Who Are Bureaucrats?o Career govt employees who work in Cabinet-lvl. Exec. branch &

independent agencies that comprise > 2,000 bureaus, divisions, branches,

offices, services, etc.

o >2.7 m. federal workers, ~ 1/3 of which are part of the Postal Serviceo Most paid according to General Schedule; advance w/i 15 GS grades to

move to higher levels & salaries

o Most selected b/o merit standards (incl. civil svc. Exams); lower levelsfilled by competitive exams, mid-levels require resumes

o 10% comprised of persons not covered by c.s. sys: Appointive policy-making positions (incl. presidential appointees,

who appoint high-lvl policy-making assistants; @ top of

bureaucratic hierarchy)

Independent regulatory commissioners (Appointees indep./ directpres. influence

Low-level, nonpolicy patronage positions (secretarial assistants topolicy makers)


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o Positions difficult to fill b/c pay less than comparable positions in theprivate sector (e.g. DHS, TSA)

Military enlists private contractors @ high rates to fill bureaucraticpos. in Iraq & other dangerous places

Formal Organizationo Cabinet Depts.

Departments: Major admin. unit w/ responsibility for brad area ofgovt operations; status indic. Permanent natl interest in a govt

fn. (e.g. defense, commerce, agriculture)

Acct. for ~60% of workforce; VP, dept. heads, heads of EPA, OMB,NDCP, US Trade Rep, & Chief of Staff= cabinet

Each dept. headed by Secretaries, e/f DOJ (headed/ Atty. General) Responsible dir. To president, but often report to those

affected/ their dept.

Tied to Congress b/c/o appropriations process, discretion inimplementing policy

Secretaries assisted by 1+ deputies/ undersecretaries,assistant secys (take over major programs)

Helped by assistants for planning, budgeting, etc. Depts. Subdivided into bureaus, divisions, sections, etc. along

functional lines (geography, work process, clientele, etc.)

o Govt Corporations Businesses est./ Congress to perform fns. That c/b provided by

private businesses

Incl. Amtrak, Federal Deposit Insurance Corp., Tennessee ValleyAuthority (TVA)

I/c/o corps w/ low financial incentives to providesatisfactory services, Congress sometimes acts, and other

times salvages public assets

o Independent Executive Agencies Govt units that closely resemble Cabinet depts. But have narrower

areas of responsibility; not part of any Cabinet dept (e.g. CIA)

Sep. from exec. depts. for practical/ symbolic reasons E.g. NASA not placed w/i Dept. of Defense b/c Space

program not dedic. Solely to military purp.


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EPA not plcd. w/i Dept. of the Interior b/c spec. aimed @controlling pollution (less indebted)

o Independent Regulatory Commissions Agencies created by Congress to exist o/o major depts. to regulate

a specific activity/ interest

National Labor Relations Board (NLRB), Federal Reserve Board,Federal Communications Commission (FCC), Securities & Exchange

Commission (SEC)

Older boards/commissions (SEC & FRB) oversee a certain industry;most created t/b free from partisan pressure

Each headed by board (5-7 members, to avoid ties)selected/ president & confirmed by Senate for fixed,

staggered terms (intentionally bipartisan

C/n easily be removed/ president 1935: USSC ruling that Congress intended indep.

commissions to be indep. expert panels as far removed as

possible from immed. Pol. pressures

Newer boards: concerned w/ rel. of private sector to public health& safety (e.g. OSHA); lack autonomy, headed by 1 admin who c/b

removed by the president, so more susceptible to presidents

political wishes

Govt Workers & Political Involvemento Hatch Act (1939): Prohibited civil servants from taking activist roles in

partisan campaigns; prohibited fed. Employees from making campaign

contributions, working for a particular party, or campaigning for a

particular candidate (often argued that this was too extreme)

o Federal Employees Political Activities Act (1993): Liberalization of theHatch Act; Federal employees may now run for office in nonpartisan

elections, may contribute money to campaigns in partisan elections

III. How the Bureaucracy Works

Congressional creation of a dept., agency, or commission-> delegation of pwrs(AI, S8); laws creating depts., etc. desc. Purpose, give auth. to make numerous

policy decisions

o Implementation: process b/w law/ policy is put into operation by thebureaucracy (how agencies execute congressional wishes)


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o Iron Triangles: Stable rel. & patterns of interaction b/w agencies, interestgroups, and congressional (sub)committees; no longer dominate most

policy processes, but some exist (e.g. b/w DVA, House Committee on Vet.

Aff., American Legion & VFWs)

o Issue Networks: Loose & informal relationships among many actors whowork in broad policy areas

Include agency officials MCs, & interest group lobbyists, lawyers,consultants, academics, PR specialists, & sometimes the courts

Very dynamic as members w/ tech. expertise/ newly interestedparties become involved

o Interagency Councils: Working groups created to facilitate coordination ofpolicy making & implementation across many govt agencies; intra-

bureaucracy alliance which results from increasingly complex policy

domains

E.g. US Interagency Council on the Homeless (1987) coordinatesactivities of govt agencies & programs to help the homeless

Policy Coordinating Committees (for complex policy problems);increasingly favored after 9/11 (e.g. PCC on Terrorist Financing)

Making Policyo Administrative Discretion: Bureaucrats ability to make choices concerning

the best way to implement congressional intentions

Rule Making: Quasi-legislative admin. process w/ char. Oflegislative act.

Regulations: Rules that govern the operation of a particulargovt program that have the force of law

Rule-makers often act as law makers & law enforcerswhen they make rules or draft regulations

1946 Administrative Procedures Act: Est. rule-makingprocedures:

Public notice of time, place, & nature of proceduresm/b provided in Federal Register

Interested Parties m/b given the opportunity tosubmit written arguments & facts relevant to the rule

Statutory purpose & basis of the rule m/b stated Rules take effect after 30 days


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Sometimes agency must conduct formal hearing beforeissuing rules (weeks-> years)

Administrative Adjudication Quasi-judicial process i/w bureaucratic agency settles

disputes b/w two parties similar to how courts resolve

disputes

Rarely find that persons/businesses d/n comply w/ federallaws agencies must enforce, or that they violate agency

rules or regulations

Force compliance via admin. adjudication (generally lessformal than a trial)

Involves several agencies, boards, and admin. law judges(independent, c/n/b removed e/f misconduct)

IV. Toward Reform: Making Agencies Accountable

Executive Controlo Most presidents tried to exercise some ctrl./ bureaucracy

JFK: Difficult to instruct Dept. of Stateo Try to appoint best possible people to carry out wishes & policy

preferences, so they apt. indiv. who share their views on many policies

o Presidents & Cabinet secretaries fill most top policy-making positionso Can re-org. bureaucracy w/ Congressional approval

Thomas Jefferson: cut waste, bring about wise & frugalgovernment

Calvin Coolidge: spending cuts, etc. & Correspondence Club toreduce bureaucratic letter-writing

o Executive Orders: Rules/regulations issued by the president which havethe effect of laws; all published in the Federal Register; diffic. to ensure

they are carried out

E.g. NOW convinced LBJ to amend an earlier EO prohibitingdiscrimination on the base of race, religion, or natl origin to also

prohibit discrimination b/o gender (1967)

Office of Federal Contract Compliance failed to draftimplementation guidelines until many years later

Congressional Controlo Can create or abolish depts. and agencies, transfer agency functions,

expand or contract bureaucratic discretion.


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o Senate can confirm/reject pres. appts., so Congress can checkbureaucracy

o Investigatory powers (Sub)Committees can hold hearings on particular problems, then

direct relevant agencies to study problems or find ways to remedy

it

Reps. Appear before commitees regularly to inform members abt.Agency activities & investigations

E.g. Hearings ordering FEMA chief Michael Brown & DHSSecy. Michael Chertoff to explain bad decisions contributing

to Hurricane Katrina disaster (for accountability and

learning from mistakes)

o 2 types of Congressional Oversight Police Patrol: Proactive; Congress sets own agenda for programs/

agencies to review

Fire Alarm Oversight: Reactive; Congress responds to complaintfiled by constituents, etc. (most common)

o Program evaluations next most commonly usedo Power of the Purse: Funds/ doesnt fund agencies activities

House Appropriations Committee holds hearings to allow agencyheads to justify budget requests

Allocates sums smaller than those auth./ legisl. committees(acts as a budget cutter)

1921: Government Accountability Office (then General AccountingOffice) in Congress, Office of the Budget/OMB in Exec. branch

GAO established Congressional Research Service andCongressional Budget Office to financially oversee agencies

work

o Congressional Review (104th Congress): Agency regulations c/b nullifiedby joint resolutions of legislative disapproval

Judicial Controlo Less apparent oversight fn., but can issue injunctions/ orders to exec.

agency before rule is formally announced

o Agencies must give all affected individuals due process C/n stop Social Security recipients checks unless provided w/

notice & opp. For a hearing


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o (Threat of) Litigation can influence bureaucrats Injured parties can file suit against agencies for failing to enforce

laws; can challenge agency interp. Of any law

o Courts often defer to bureaucratic expertise Specialized Courts (e.g. Court of Intl Trade) defer less to agency

decisions


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10: The Judiciary 4/1/2012 1:13:00 PM

I. Roots of the Federal Judiciary

Federalist N 78: Alexander Hamilton argued that the judiciary w/b least dangerousbranch of govt; Anti-Federalists objected to life tenure (given s/t judges w/n/b subject to

political whims) & ability to define supreme law of the land

Art. III, S2: Judicial powers, original and appellate jurisdictiono All federal crimes (e/f impeachment)tried by jury i/w crime was committed

Cong. can alter the Courts jurisdiction (ability to hear certain kinds of cases)o Can propose Constitutional amendments to reverse judicial decisionso Can impeach & remove federal judgeso President appoints all federal judges w/ advice & consent of Senate

Court can check presidency (presides ovr pres. impeachment) Judicial Review: Power of the courts to review acts of other branches of govt and the

states

o Not specified by the Constitutiono Resolved in Marbury v. Madison (1803)~ Natl govto Martin v. Hunters Lessee (1816)~ State law

Judiciary Act of 1789 and the Creation of the Federal Judicial Systemo Judiciary Act of 1789:

Est. three-tiered structure of federal court system

Early SCo Only decided Chisholm v. Georgia (1793)

FederalCourtSystem

Supreme Court

Judiciary Act of 1789: 5 AssociateJustices, 1 Chief Justice

1869-Now: 9 Justices

Circuit Courts

Until 1891: Trial courts forimportant cases; 1 disrict court

judge, 2 itinerant SC judges (met ascircuit court 2x/ yr

Now: Exclusively appellate

Federal District Courts (1 perstate)

If litigants are unhappy withverdict, they can appeal to 1 of 3

circuit courts


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Courts juris. under Art III, S2 includes right to hear suits brought by citizenagainst state i/w he d/n reside

Led to psg/ratif./ 11th Amendment (1798; ltd. Judicial pwr. by preventingfed. courts from trying any cases commenced or prosecuted against one

of the states by citizens of another state)

One assoc. just. left to become chief justice of South Carolina SC Issues w/ early court:

Freq. personnel changes, no clerical support, no system of reportingdecisions, few good lawyers willing to join b/c/o travel duties

Actions in the first decade D/n give GW advice on legality/ some actions-> SC retained

independence (politically and functionally)

Tried to advance nationalism, maintain natl govts supremacy ovr.states

Circuit court jurists-> suppressed Whiskey Rebellion (1794; rxn./natl excise tax/ whiskey)

Chall. Constitutionality of Alien & Sedition Acts (Criminaloffense to crit. govt officials or their actions)

The Marshall Court: Marbury v. Madison (1803) and Judicial Reviewo John Marshall (h. 1801-1835) est. court as co-equal branch of govt

Discont. Practice ofseriatim (series) opinions (prior, justices spoke indiv.opinions in order; after, spoke as a court)

Est. supremacy of SC over judiciaries of various states; of fed. Govt &congress over state govts (see McCulloch v. Marylandand the Elastic

Clause)

Claimed judicial review, est. court as final judge of constitutional questions(may void Cong. acts)

o Marbury v. Madison (1803): John Adams appointed Wm. Marbury (among other Federalists) a justice for

DC @ last minute; Secy. Of State failed to deliver commission, so M. asked

Jefferson; Madison refd Court found that cong. statute extending Courts

original jurisdiction was unconstitutional.

Although Marbury et. al. were entitled to commissions, the Court c/n issuethe writ Marbury requested

Parts of the Judiciary Act of 1789 that allowed court to issue writs wereunconstitutional


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In the long term, est. judicial reviewII. The American Legal System

Courtso Trial courts: court of original jurisdiction where cases begino Appellate courts (state): generally reviews only findings of law made by lower

courts; same level as courts of appeals (federal); hear civil & criminal law

Jurisdictiono Authority vested in a particular court to hear and decide the issues in any particular

case

o Juris. of the federal court ctrld./ US Constitution and by statuteo Original Jurisdiction: Jurisdiction of courts that hear a case first (gen. a trial);

determine the facts of a case

o Appellate Jurisdiction: Power vested in particular courts to review &/or revisethe decision of a lower court; d/n view factual record, but review legal procedures

to ensure proper application of the law.

Criminal and Civil Lawo Criminal law: Codes of behavior related to the protection of property and

individual safety

Deals w/ felonies, misdemeanors, or offenses Assumes society is the victim of the illegal act, so the govt prosecutes on

behalf of an injured party

o Civil law: Codes of behavior r/t business & contractual relationships b/w groups &individuals

Actions d/n constitute threat to society @ lg., so people must take action ontheir own (lawsuits)

Civil disputes often settled outside of courto In all cases, need plaintiff (w/ prosecutor), defendant (w/ defense lawyer), judge,

and jury

III. The Federal Court System (all constitutional courtscreated by the Constitution or by

Congress pursuant to its auth. in Art. III)

Legislative courts set up by Congress for special purposes (e.g. Court of MilitaryAppeals)

District Courts (created w/ Judiciary Act of 1789)o 94 federal district courts exist, none cuts across state lines (ea. State has >/= 1;

CA, TX, & NY ea. have 4)

o Cases fall into 1/3 categories:


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Involve federal govt as a party Present federal question b/o claim under the U.S. Constitution, treaty w/

another nation, or a federal statute (federal question jurisdiction; c/b civil or

criminal)

Involve civil suits i/w citizens are from diff. states, amt. of money @ issue>$75,000

o Ea. federal district has US atty (nom./ pres., confirmed/ Sen.) Chief law enforcement officer N of assistants d/o amt./ of litigation

Courts of Appealso C/b appealed to by losing party in case heard & decided in fed. Distr. Courto Try to corr. errors of law & procedure that have occ. in lower courts or admin.

agencies

Lawyers submit briefs (docs containing the legal written arguments incases filed w/ court by a party prior to a hearing or a trial)

Dec. of any court of appeals binding on only courts w/I geog. Confines; dec.of USSC binding everywhere, est. natl precedents (prior judicial decisions;

rules for settling subseq. Cases of a similar nature)

Stare decisis= reliance on precedents to formulate decisions in new cases Allows for continuity & predictability in our judicial sys., but judges

sometimes ignore or overrule precedents to reach diff. conclusions

o 11 numbered courts of appeals; 12th in DC (federal reg. commissions & agencies)o N of judges variable (d/o workload and complexity of cases; from 6-30)o Ea. court supervised by a chief judge (most senior below 65, serves max. 7 yrs.)

Judges div./ rotating 3 judge panels (active judges w/i Court of Appeals,visiting judges, & retired judges)

o Have no orig. jurisdiction, but Cong. granted them appellate juris. over casespertaining to :

Appeals from criminal and civil district cases (90% of workload) Appeals from admin. agencies When decisions made/ fed. Court of appeals, litigants n/l have auto. Right

to appeal

Losing party may petition to the US SC to hear the case, but SCrarely grants

Supreme Courto Reviews cases from the US courts of appeals and other courts of last resort


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o Final interp. Of the Constitutiono Decides cases w/ trem. Policy significanceo Ensures uniformity in interp. Of natl laws & the constitutiono Resolves interstate conflictso Maintains supremacy of natl law in the federal sys.o Since 1869: 8 assoc. justices + 1 chief justice (presidentially nominated)

Each justice empl. 4 clerks, but there are also ~ 400 staff members @ theUSSC

IV. How Federal Court Judges are Selected

Selection is oft. Very politicalo Pres. tries to select well-qualified individuals, but can also put phil. stamp on fed.

courts

o Senatorial Courtesy: process b/w presidents defer selection of district courtjudges to the choice of senators of their own party who rep. the state where a

vacancy occurs

E.g. Clinton: district court candidates came from recs. From DemocraticSenators/ House members (or other high-ranking Democrats); desp.

Clintons efforts to appease Rs w/ moderate justices, Senate prevented

many nominees from winning approval

Bush: Confrontations ovr. D threats and use of filibuster to block votes onBush nominees-> bipartisan Gang of Fourteen

Make sure well-qualified nominees c/b brought to a vote except ifnominees ideology was too extreme

Who are Federal Judges?o Gen. have held other pol. offices (e.g. state court judge/ prosecutor)o Most h/b involved in politics, h/h prior judicial experienceo White males dominate, but now more minorities are on the bench

Appointments to the US Supreme Courto Nominated by president, confirmed by Senate

Nomination Criteriao Competence

Expected t/h/h some judicial or govt exper. E.g. John Jay was a Federalist Papers author & a NY politician

o Ideology/Policy Preferences Preferably of the same ideology as the appointer (FDR, Nixon, & Reagan

apptd. Justices w/ their ideologies


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o Rewards Many appointees were personal friends of presidents (e.g. Lincoln, LBJ) Most select justices of their own party affil.

o Pursuit of Political Support E.g. Reagan aptd. Sandra Day OConnor to fill the first vacancy in the SC in

rtn. for female support

E.g. Clinton apptd. Ruth Bader Ginsbergo Religion

For years, there was a Cath. & a Jewish seat on Court Through 2009, most h/b Protestants Only 11 Cath.; only 7 Jewish More Catholics now than ever (Roberts, Scalia, Kennedy, Thomas, and Alito)

o Race, Ethnicity, and Gender Thurgood Marshall & Clarence Thomas only AA justices Sandra Day OConnor, Ruth Bader Ginsberg, Sonia Sotomayor, and Elena

Kagan only female justices

Supreme Court Nomination Processo Investigation

Names of nominees sent to the FBI and the ABA for a background check ABA rates ea. nominee as Well Qualified, Qualified, or Not Qualified

After formal nom. made & sent -> Senate, Senate Judiciary Committeeinvestigates

Asks each nominee to complete questionnaire on previous work,judicial opinions written, judicial philosophy, speeches, & interviews

o Lobbying by Interest Groups 1987: Nom. Of Judge Robert H. Bork-> liberal groups launched massive

campaign against nominee

Many interest groups involved in distr. and appell. court nominations; recog.That appts. Pave way for fut. nominees to the USSC

o Senate Committee Hearings & Senate Vote To 1929: all but 1 Senate Judiciary Committee hearing on SC nominee was

conducted in exec. (private) session

1916: Hearings on Louis Brandeis (first Jewish justice) conducted in public 1939: Felix Frankfurter= first nominee/ testify before the committee

Senators ask nominees probing questions, which many decline toanswer (b/c issues may come before the Court)


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Aft. Hearings, Senate Judiciary Comm. Makes recomm. To fullSenate

Rejections of Pres. SC nominees occur after SJC recommendsagainst nominees appt.

V. The Supreme Court Today

Deciding to Hear a Caseo Ovr. 9,600 cases filed @ USSC from 2007-2008, but only 75 were heardo Crtn./ Courts of Appeals-> reduction in SC filingso Cases req. interp./ constitutional law grew as pt. of SC workload-> Court took

greater role in policy-making

o Justices can opt not to hear a case, thereby influencing policy-making and politicso 2 types of jurisdiction:

Original jurisdiction i/c/w Ambassadors, other public Ministers & Consuls, &those i/w a State is party

Appellate jurisdiction when cases present important issues of law orsubstantial federal questions

Most arrive on writ of certoriari(request for Court to order uprecords from a lower court to review a case)

Writs ofCertioriariand the Rule of Fouro Writs of Certioriarimust meet these criteria:

Come from US appellate court, special 3-judge district court, or state courtof last resort

Involve federal question; present questions of federal constitutional law/involve federal statutes, actions, or treaties

Set our reasons Court should accept case for review & present legalargument supporting that position

o Clerk transmits writs to chief justices office (for clerical review), then to indiv.justices offices

All justices e/f John Paul Stevens participate in certpool Review fraction of petitions, share notes Cases which they deem noteworthy are placed on discuss lift prepd

by chief justices clerks & circ. to chambers of other justices (others

deadlisted)

Only 30% make it to discuss list Discussion of cases on discuss list

Chief justice speaks first, then the rest a/t seniority


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Rule of Four: >4 justices of the SC must vote to consider a casebefore it c/b heard; grant ofcertioriari

Role of Clerkso Sel. From candidates @ top of graduating classes of prestigious law schoolso Research mtrl., read & summarize cases, help justices to write opinionso Make first pass through petitions (infl. which cases c/g 2nd look)o Number of clerks has increased over time (now there are about 38 in the USSC)

Inc. n and length of the Courts opinions; inc. in annual n of cases decided How Does a Case Survive the Process?

o Cues Federal Govt asks for review Involves conflict among courts of appeals Presents civil rights/ liberties question Involves ideological or policy preferences of justices Has sig. sociopolitical interest (e.g. interest group amicus curiae briefs)

o The Federal Government Solicitor general: fourth-ranking member of the DOJ; handles all appeals

on behalf of the US govt to the USSC

Staff like small law firm w/i DOJ Appears o/b/o US govt as amicus curiae(friend of the court;

may file briefs or appear to argue interests orally before the court)

Court accepts 70-80% of cases i/w US govt is the petitioning party S.G. reps. Pres. policy interests & interests of the US in court

o Conflict Among the Courts of Appeals I/c/o interp. Of constitutional or federal law, justices want consistency

throughout fed. court sys.

Oft. when civ. rights/ liberties questions arise Ideology plays role esp. i/c/w judges of one ideology want to hear

cases to overrule the decisions of a lower court of a diff. ideology

Also take cases when circuit courts disagree over an issueo Interest Group Participation

Most cases involve govt or interest group (as sponsoring party or amicuscuriae)

Pos. of both parties echoed or expanded in a.c. briefs filed/ interestedparties


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Interest groups provide Court w/ info. Not contained in party briefs,help write briefs, assist in practice oral arguments

In moot court sessions, lawyers & law professors act out case Use a.c. brief to lobby the Court; joining ongoing cases through a.c.

briefs useful in advancing policy prefs.

Brown v. BOE (1954), Planned Parenthood of SE PA v. Casey(1992), Grutter v. Bollinger (2003)

Hearing and Deciding the Caseo Oral Arguments

Annual term starts on the first Monday in October, ends in late June Oral agmts. heard M->W

Ltd. To immediate parties in case, but S.G. often argues orally asamicus curiae

Attys. allotted 30 mins to present case, incl. time reqd to answer questionsfrom the bench

Fn.: Only opp. For public & press to observe workings of court Assures lawyers that justices h/h parties arguments Forces lawyers to focus on agmts. v/a imp./ justices Provides court w/ addtl info. (esp. re: Courts broader pol. role)

E.g. can ask how many people w/b affected by decisiono The Conference and the Vote

Justices meet in closed conference weekly when Court hears oral agmts;least senior judge comm. w/ those waiting outside to fill requests

Chief justice presides over conferences, makes initial presentation Indiv. justices disc. Case in order of seniority; many try to change

minds of others, but most enter conf. room w/ clear idea of how they

will vote on each case

Roberts Court less formal than Rehnquist Court i/t Fridayconferences last longer & include discussion

o Writing Opinions After Court reaches decision in conferences, justices write opinion (if chief

justice in majority, he selects justice to write it; if not, then the most senior

justice in majority writes it)

Forms of opinion:


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Most reached/ majority opinion written by 1 member to reflect theviews of >5 justices

Sets out legal reasoning justifying decision; becomesprecedent for deciding future cases

Under stare decisis, both likely t/b relied upon as precedentlater by lower courts confronted by similar cases

When Court writes final opinion, informal caucusing & negotiationoften take place (hldg. out for word changes, etc.

Can lead to div. in court majority; m/h/t decide cases byplurality opinions of 3-4 justices

Justices who agree w/ outcome of case but not legal rationale mayfile concurring opinions to express differing approach

E.g. Stephen Breyer filed one in Clinton v. Jones (1997)VI. Judicial Philosophy and Decision-Making

Judicial Philosophy, Original Intent, & Ideologyo (Conservative) Judicial restraint: philosophy of judicial decision making that

argues courts should allow the decisions of other branches of govt to stand, even if

they offend a judges own principles; federal courts composed of unelected judges,

so the judicial branch is the least democratic of all branches; courts should defer

policy-making to other branches as much as possible

Advocates of judicial restraint gen. agree that judges s/b strictconstructionists(emph. on Framers original intentions)

Determining the Constitutionality of a statute or policy requires the Court torely on explicit mngs. of clauses in the Constitution

o (Liberal) Judicial activism: Argues judges should use power broadly to furtherjustice, esp. re: equality & personal liberty

Roe v. Wade (1973) is ex./ j.a. run amok, as many believe the court s/hdeferred policy-making to the states or to the elected portions of the federal

govt

Advocates blv. Judges should use power broadly to further justice; courtsneed to correct injustices comm./ other branches of govt

E.g. Brown v. BOE(1954): racial segregation in schools violates equalprotection clause of the 14th Amendment

Conservative activists want to iss. Rulings that impose pol. blfs & policieson the country @ lg.

Models of Judicial Decision-Making


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o Behavioral Characteristics Originally: Soc. bckgd. differences (childhood exper., relig. values, educ.,

earlier pol./leg. Careers, pol. party loyalties) likely infl. How judge eval.

facts & legal iss. in a case

E.g. Justice Harry Blackmuns svc @ Mayo Clinic m/h led to medically-supported opinion in Roe v. Wade (1973)

o Attitudinal Model SC justices decide cases b/o personal prefs. towards iss. of public policy Factors incl. party identification, party of appt. pres., lib/cons leanings of a

justice

o Strategic Model Justices mix legal doctrine & own policy blfs. w/ concerns abt. how other

variables will affect/ be affected by their decision

Prospective thinkers; act to achieve & preserve policy and personal goalsover long term

E.g. certoriari: justices m/n vote to hear case if they susp. they will lose inthe final decision

Public Opiniono Justices read papers, watch TV, & know abt. public opiniono P.o. acts as check on court power & as energizing factor

E.g. activist periods in SC correspond to pds. of socioecon. crisiso Courts c/b target of pub. opinion

E.g. just before Webster v. Reproductive Health Services (1989), Courtsubj. to lobbying by pro-life & pro-choice groups & indiv.

o SC affects p.o., as init. rulings on controversial issues pos. infl. p.o. i/d/o Courtsopinion

o Court dependent upon pub. for prestige & compliance w/ decisions I/t/o war/emergencies, Cout decides cases i/f/o p.o. & pol. exigencies

Korematsu v. US (1944): SC upheld unconstitutional internment ofJapanese Americans

Ebb & flow of confidence in Court Highest after US v. Nixon (1974)

VII. Toward Reform: Power, Policy Making, and the Court

Backgroundo Marshall Court:

Marbury v. Madison (1803) and judicial review


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o Warren Court Civil rights cases, broadened policy-making role

o Roberts Court Reversed trend of Court agreeing w/ exec. decisions during times of war 2008: Found Bushs denial ofhabeas corpus rights to prisoners @

Guantanamo Bay was unconstitutional

Policy Makingo Over 100 federal laws decl. unconstitutional

E.g.Ashcroft v. Free Speech Coalition (2002): Child Online Protection Act(prevents minors from viewing porn on the web) was unconstitutional

Upheld the Protect Act (criminalizes pandering or soliciting of childpornography)

o SC can overrule itself Gen. abides by stare decisis, but has overruled self in >200 cases E.g. Brown v. BOE(1954) overruled Plessy v. Ferguson (1896), reversing

decision that racial segregation d/n violate Constitution

Reversal of decisions on criminal defendants, womens, and religiousestablishment rights

o Growing power: Courts now handle iss. that h/b considered political qs moreapprop. left to other branches of govt to decide

Pre-1962: Court d/n hear cases abt sz. & population of congressionaldistricts

1962: Justice Wm. Brennan Jr. concl. that, b/c a case involved a pol. issue,it d/n necess. involve a pol. question

Implementing Court Decisionso Judicial Implementation: How/ whether judicial decisions are translated into

actual public policies affecting more than the immed. parties to a lawsuit

Involves implementing & consumer populationsImplementing population: people responsible for carrying out a decision

(incl. lawyers, judges, public officials, police officers & police depts.,

hospital admins, govt agencies, corporations, teachers, school

admins, or school boards)

Consumer population: people affected by a decision For implementation t/b effective, members of implementing pop. must show

they understand orig. decision


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E.g. Reynolds v. Sims (1964): Every person s/h equally weightedvote in electing govt representatives

Implementing pop= state legislatures & loc. govts (determinevoting districts for federal, state, & local offices)

Implementing population must also follow Court policy Decisions most likely t/b implemented if implem. resp. concent. in hands of

few highly visible politicians (e.g. pres./governor)

Consumer population must also be aware of rights a decision grants/ deniesthem

E.g. teenagers seeking abortion need to know that most statesrequire parental permission; crim. defendants & lawyers need to

know implications for evidence presented @ trial

o Success of judicial implementation dependent on how well-crafted/ popular adecision is

E.g. Southern hostile rxn to Brown v. BOE& absence of preciseimplementation guidelines-> ruling went unenforced for many years

Highlights how SC needs support of fed/st. courts a/w/a other govtagencies to carry out judgments

Apg Unit 3 Notes

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