Caroline Margiotta

8: The Presidency
I. Roots of the Office of President of the United States Early Exec. Pwrs: o

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Colonial-era royal governor had pwrs of appointment, military command, expenditure, lawmaking and pardon Art. Of Confed.: No exec. Branch; Continental Congress Presidents held no actual pwr.; eventually agreed on need for executive pwr. t/b vested in 1 person

Presidential Qualifications & Terms of Office o 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 minority groups serving as president o 22ND Amendment (1951): Presidents can serve 2 terms if they were elected 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 for president 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 charge president, 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 by HOR; no one removed by Senate o 1974: Nixon resigned over Watergate Scandal 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 no absolute constitutional exec. privilege allows pres. to ref. to comply w/ court order to produce info. needed in criminal trial.

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

VP-> Speaker of the House-> President Pro Tempore of the Senate-> 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 office

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 (by simple majority) of both houses of Congress VP and maj./ Cabinet can deem pres. unable to fulfill duties; VP may become acting pres. if P is incapacitated; P can voluntarily relinquish powers

II. Constitutional Powers of the President Appointment Power o o o o o o o Helps president enforce laws passed/ Congress Ambassadors, public Ministers & Consuls, SC judges, etc. Can make 3k appts to his admin;Can remove many appointees @ will Appts.> 75k military personnel Pres. can set policy agenda for nation, esp. via court appts. Look for loyalty, competence, and integrity 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 Congress o o Reqd to give State of the Union speeches Can convene Congress (S &/or H) on extraordinary occasions Can make treaties w/ foreign natns provided that all appr. By >2/3 of Senate o o Can receive ambassadors (recog. existence/ other nations) Senate ratifies ~70% of treaties; only 16 treaties rejected (incl. Wilsons Treaty of Versailles, 1919) Might require substantial amendment of a treaty prior to its consent (e.g. Carters Panama Canal Treaty, 1977, which turned canal over to Panama)

Making Treaties o

Pres. may unsign treaties (e.g. Bushs withdrawal of support for the 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 voted on w/i 90 days

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)

Vetoes o 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. involving taxing or spending; ruled Unconstitutional by USSC in Clinton v. City of New York (1998)

Presiding over the Military as Commander in Chief o 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 of Tonkin Resolution (1964), which LBJ supported o War Powers Act (1973): Pres. ltd. in deployment of troops overseas to 60 day 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

Pardon: exec. grant providing restoration of all rights & privileges of citizenship to a specific individual charged or convicted of a crime Gerald Ford pardoned Nixon for any offenses against the US which he m/h committed in office 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 Presidents o 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. to negot. 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 for proclaiming 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: 1809-1933 o 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 supremacy of natl govt by facing down SCs nullification of federal tariff law o Abraham Lincoln: Civil War-> Unprecedented assumption of presidential powers b/c/o inherent pwrs.; suspended habeas corpus (would allow

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/ fourterm (12 years b/c/o death) presidency of FDR 1933: FDR took office amidst Great Depression; asked Congress for broader exec. powers to address emergency New Deal: FDRs Relief, Recovery, Reform program to bring US out of GD New bureaucracy to implement pet programs; personalized presidency 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) and John Nance Garner (R-TX) in 1932) o Pwr. of VP dependent upon how much pwr P is willing to give him Cabinet o o o o o No basis in the Constitution, so informal Membership based on tradition & presidential discretion Incl. heads of major executive depts.+ VPs _ other agency heads/ officials Helps P execute laws & assists him in making decisions 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 Informal advisers Abigail Adams= early feminist (Remember the Ladies in laws) Edith Bolling Galt Wilson= most powerful first lady; became Wilsons surrogate after his paralysis and oversaw whom & what he saw First Lady o o o Carter 1st to give his VP, Walter Mondale, pwrs. (incl. an office) Dick Cheney had unprecedented access to Pres. Bushs ear

Eleanor Roosevelt= syndicated columnist, lecturer, Democratic Party activist, mother, and US delegate to the UN Laura Bush-> improve literacy, womens legal status in Afghanistan & Iraq; fundraiser

Executive Office of the President o Created by FDR in 1939 to help president oversee exec. branch bureaucracy o Comprised of several advisers & offices in Exec. Office Bldg. next to White House 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 of the VP, Office of the US Trade Representative o Depending on type of EOP offices they include, P can give clear indications of their policy prefs.

White House Staff o 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. derived from personal rel. w/ President, no indep. Legal auth. o Chief of staff: enables smooth running of staff & exec. branch; prot. P from mistakes, help implement policies advantageous to P

V. Presidential Leadership & the Importance of Public Opinion Presidential Leadership J.D. Barbers Presidential Personalities Positive Negative F. Roosevelt, Truman, Kennedy, Ford Carter, G. Bush, Wilson, Hoover, LBJ, Nixon o succeed o Passive-negative Ps fail to take full adv. Of resources avail. To EO Taft, Harding, Reagan Coolidge, Eisenhower Active Passive

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

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 of Cong. & the public Diff. b/w great & mediocre Ps lies in ability to grasp importance of leadership style; needed t/b active

Going Public: Mobilizing Public Opinion o 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 gave speeches on the war in Iraq @ military academies

Publics Perception of Presidential Performance o Approval ratings measure ability to enact pub. Policy simply b/c/o name & office High approval rtgs-> public appearances can help a candidate from the presidents party to win an important seat Low approval ratings-> prevent favored policies from being enacted 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 o Since LBJ, only 4 presidents have left office w/ approval rtgs. > 50% 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) o E.g. on heels of Persian Gulf War & 9/11 attacks Harmed by pol. scandals, escalating violence in Iraq, rising gas prices Approval rtgs. from 50% (2005) to 35% (2006) to 26% (2008) GWB: one of the longest rallies in history

Correlates w/ Congressional Republicans independence

VI. Towards Reform: The President as Policy Maker Presidents Role in Proposing & Facilitating Legislation o 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 well w/ 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 Implementation o P sets natl policy & priorities through budget proposals & continued insistence on Congr. passage o Budget proposal outlines progs. P wants, indic. importance of each by amt. of funding requested for each o 1939: Bureau of the Budget (created 1921 to help P tell C how much money 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 Order o Executive Order: Rule/ regulation that has the effect of law. All Eos must be published in the Federal Register

FDR & Truman used to seize mills, mines, etc. for producing supplies for WWII & Korean War Youngstown Sheet and Tube v. Sawyer (1952): USSC stated 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 all presidents records belonged to the American people)

Signing Statements: Comments on the bill a president signs; sometimes incl. controversial claims that some of the legislation= unconstitutional, so he intends to disregard it or implement it differently.

Caroline Margiotta

9: The Executive Branch & the Federal Bureaucracy

I. Roots of the Federal Bureaucracy Intro: o

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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 Government o o Thousands of addtl employees added to existing and new govt depts. Poor harvests & distribution problems-> Dept. of Agriculture (1862; given full departmental status by 1889) o o 1866: Pension office-> benefits to Union veterans 1870: Dept. of Justice (headed by Atty. General) 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 as rewards to friends & political allies for their support) o James A. Garfield elected in 1880, reformers called for reform to patronage 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 Commission to administer a partial merit sys. Classified federal svc. By grades (appts. Made b/o results of competitive exam) Illegal for federal pol. appointees t/b reqd to contribute to a particular 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. made b/o performance on competitive exams

Spoils System-> Merit System o

Regulating the Economy

Interstate Commerce Commission (1887): Created in wake of big business growth, 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-created agency 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 of indiv. & property rights

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

20

th

C. Governmental Growth 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 to revive the economy

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

Government Issue (G.I.) Bill-> college loans for returning vets, lower mortgage rates so they could buy homes Veterans Housing Authority-> homes purch. w/ loans had to meet certain specs.

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 -For public good, non profit -Seek re-election -Money from taxpayers -Diffic. To determine to whom bureaucracy is responsible 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 o >2.7 m. federal workers, ~ 1/3 of which are part of the Postal Service 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 levels filled 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./ direct pres. influence Low-level, nonpolicy patronage positions (secretarial assistants to policy makers) Private Business -For-profit -Money from customers

Positions difficult to fill b/c pay less than comparable positions in the private sector (e.g. DHS, TSA) Military enlists private contractors @ high rates to fill bureaucratic pos. in Iraq & other dangerous places

Formal Organization o Cabinet Depts. Departments: Major admin. unit w/ responsibility for brad area of govt 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 in implementing 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 Valley Authority (TVA) I/c/o corps w/ low financial incentives to provide satisfactory 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.

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

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 Involvement o 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 the Hatch 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 the bureaucracy (how agencies execute congressional wishes)

Iron Triangles: Stable rel. & patterns of interaction b/w agencies, interest groups, 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) Issue Networks: Loose & informal relationships among many actors who work 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 interested parties become involved

Interagency Councils: Working groups created to facilitate coordination of policy making & implementation across many govt agencies; intrabureaucracy alliance which results from increasingly complex policy domains E.g. US Interagency Council on the Homeless (1987) coordinates activities 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 Policy o Administrative Discretion: Bureaucrats ability to make choices concerning the best way to implement congressional intentions Rule Making: Quasi-legislative admin. process w/ char. Of legislative act. Regulations: Rules that govern the operation of a particular govt program that have the force of law Rule-makers often act as law makers & law enforcers when they make rules or draft regulations 1946 Administrative Procedures Act: Est. rule-making procedures: Public notice of time, place, & nature of procedures m/b provided in Federal Register Interested Parties m/b given the opportunity to submit written arguments & facts relevant to the rule Statutory purpose & basis of the rule m/b stated Rules take effect after 30 days

Sometimes agency must conduct formal hearing before issuing 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/ federal laws agencies must enforce, or that they violate agency rules or regulations Force compliance via admin. adjudication (generally less formal 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 Control o Most presidents tried to exercise some ctrl./ bureaucracy o JFK: Difficult to instruct Dept. of State Try to appoint best possible people to carry out wishes & policy preferences, so they apt. indiv. who share their views on many policies o o Presidents & Cabinet secretaries fill most top policy-making positions Can re-org. bureaucracy w/ Congressional approval Thomas Jefferson: cut waste, bring about wise & frugal government Calvin Coolidge: spending cuts, etc. & Correspondence Club to reduce bureaucratic letter-writing o Executive Orders: Rules/regulations issued by the president which have the 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 prohibiting discrimination on the base of race, religion, or natl origin to also prohibit discrimination b/o gender (1967) Office of Federal Contract Compliance failed to draft implementation guidelines until many years later Congressional Control o Can create or abolish depts. and agencies, transfer agency functions, expand or contract bureaucratic discretion.

Senate can confirm/reject pres. appts., so Congress can check bureaucracy 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 & DHS Secy. Michael Chertoff to explain bad decisions contributing to Hurricane Katrina disaster (for accountability and learning from mistakes) 2 types of Congressional Oversight Police Patrol: Proactive; Congress sets own agenda for programs/ agencies to review Fire Alarm Oversight: Reactive; Congress responds to complaint filed by constituents, etc. (most common)

o o

Program evaluations next most commonly used Power of the Purse: Funds/ doesnt fund agencies activities House Appropriations Committee holds hearings to allow agency heads to justify budget requests Allocates sums smaller than those auth./ legisl. committees (acts as a budget cutter) 1921: Government Accountability Office (then General Accounting Office) in Congress, Office of the Budget/OMB in Exec. branch GAO established Congressional Research Service and Congressional Budget Office to financially oversee agencies work Congressional Review (104th Congress): Agency regulations c/b nullified by joint resolutions of legislative disapproval

Judicial Control o 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

(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

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

10: The Judiciary

I. Roots of the Federal Judiciary

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Federalist N 78: Alexander Hamilton argued that the judiciary w/b least dangerous branch 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 jurisdiction o All federal crimes (e/f impeachment) tried by jury i/w crime was committed Can propose Constitutional amendments to reverse judicial decisions Can impeach & remove federal judges President appoints all federal judges w/ advice & consent of Senate Cong. can alter the Courts jurisdiction (ability to hear certain kinds of cases) o o o

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 o o Not specified by the Constitution Resolved in Marbury v. Madison (1803)~ Natl govt Martin v. Hunters Lessee (1816)~ State law Judiciary Act of 1789: Est. three-tiered structure of federal court system
Judiciary Act of 1789: 5 Associate Justices, 1 Chief Justice Supreme Court 1869-Now: 9 Justices

Judiciary Act of 1789 and the Creation of the Federal Judicial System o

Federal Court System

Until 1891: Trial courts for important cases; 1 disrict court judge, 2 itinerant SC judges (met as circuit court 2x/ yr Circuit Courts Now: Exclusively appellate

Federal District Courts (1 per state)

If litigants are unhappy with verdict, they can appeal to 1 of 3 circuit courts

Early SC o Only decided Chisholm v. Georgia (1793)

Courts juris. under Art III, S2 includes right to hear suits brought by citizen against state i/w he d/n reside Led to psg/ratif./ 11th Amendment (1798; ltd. Judicial pwr. by preventing fed. 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 reporting decisions, 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 (Criminal offense to crit. govt officials or their actions)

The Marshall Court: Marbury v. Madison (1803) and Judicial Review o John Marshall (h. 1801-1835) est. court as co-equal branch of govt Discont. Practice of seriatim (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. Maryland and 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 issue the writ Marbury requested Parts of the Judiciary Act of 1789 that allowed court to issue writs were unconstitutional

 Courts o o

In the long term, est. judicial review

II. The American Legal System Trial courts: court of original jurisdiction where cases begin Appellate courts (state): generally reviews only findings of law made by lower courts; same level as courts of appeals (federal); hear civil & criminal law Jurisdiction o Authority vested in a particular court to hear and decide the issues in any particular case o o Juris. of the federal court ctrld./ US Constitution and by statute 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 revise the decision of a lower court; d/n view factual record, but review legal procedures to ensure proper application of the law. Criminal and Civil Law o 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 on their own (lawsuits) o Civil disputes often settled outside of court 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 Military Appeals) 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:

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

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

Courts of Appeals o o C/b appealed to by losing party in case heard & decided in fed. Distr. Court 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 in cases 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 o o 11 numbered courts of appeals; 12th in DC (federal reg. commissions & agencies) N of judges variable (d/o workload and complexity of cases; from 6-30) 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 cases pertaining 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 SC rarely grants

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

o o o o o o

Final interp. Of the Constitution Decides cases w/ trem. Policy significance Ensures uniformity in interp. Of natl laws & the constitution Resolves interstate conflicts Maintains supremacy of natl law in the federal sys. Since 1869: 8 assoc. justices + 1 chief justice (presidentially nominated) Each justice empl. 4 clerks, but there are also ~ 400 staff members @ the USSC

IV. How Federal Court Judges are Selected Selection is oft. Very political o 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 court judges 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 Democratic Senators/ 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 on Bush nominees-> bipartisan Gang of Fourteen Make sure well-qualified nominees c/b brought to a vote except if nominees ideology was too extreme Who are Federal Judges? o o o Gen. have held other pol. offices (e.g. state court judge/ prosecutor) Most h/b involved in politics, h/h prior judicial experience White males dominate, but now more minorities are on the bench Nominated by president, confirmed by Senate Competence o Expected t/h/h some judicial or govt exper. E.g. John Jay was a Federalist Papers author & a NY politician Preferably of the same ideology as the appointer (FDR, Nixon, & Reagan apptd. Justices w/ their ideologies

Appointments to the US Supreme Court o Nomination Criteria o

Ideology/Policy Preferences

Rewards Many appointees were personal friends of presidents (e.g. Lincoln, LBJ) Most select justices of their own party affil. 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 Ginsberg 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) Thurgood Marshall & Clarence Thomas only AA justices Sandra Day OConnor, Ruth Bader Ginsberg, Sonia Sotomayor, and Elena Kagan only female justices Religion

Pursuit of Political Support

Race, Ethnicity, and Gender

Supreme Court Nomination Process o 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 Committee investigates 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 to answer (b/c issues may come before the Court)

Aft. Hearings, Senate Judiciary Comm. Makes recomm. To full Senate Rejections of Pres. SC nominees occur after SJC recommends against nominees appt.

V. The Supreme Court Today Deciding to Hear a Case o o o Ovr. 9,600 cases filed @ USSC from 2007-2008, but only 75 were heard Crtn./ Courts of Appeals-> reduction in SC filings Cases req. interp./ constitutional law grew as pt. of SC workload-> Court took greater role in policy-making o o Justices can opt not to hear a case, thereby influencing policy-making and politics 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 or substantial federal questions Most arrive on writ of certoriari (request for Court to order up records from a lower court to review a case) Writs of Certioriari and the Rule of Four o Writs of Certioriari must meet these criteria: Come from US appellate court, special 3-judge district court, or state court of 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 legal argument 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 cert pool 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

 Role of Clerks o o o o

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

Sel. From candidates @ top of graduating classes of prestigious law schools Research mtrl., read & summarize cases, help justices to write opinions Make first pass through petitions (infl. which cases c/g 2nd look) Number of clerks has increased over time (now there are about 38 in the USSC) 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) 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 Inc. n and length of the Courts opinions; inc. in annual n of cases decided

How Does a Case Survive the Process? o

The Federal Government

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 issue Interest Group Participation Most cases involve govt or interest group (as sponsoring party or amicus curiae) Pos. of both parties echoed or expanded in a.c. briefs filed/ interested parties

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 Case o 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 as amicus curiae Attys. allotted 30 mins to present case, incl. time reqd to answer questions from 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) o E.g. can ask how many people w/b affected by decision

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 Friday conferences last longer & include discussion

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:

Most reached/ majority opinion written by 1 member to reflect the views of >5 justices Sets out legal reasoning justifying decision; becomes precedent for deciding future cases Under stare decisis, both likely t/b relied upon as precedent later by lower courts confronted by similar cases

When Court writes final opinion, informal caucusing & negotiation often take place (hldg. out for word changes, etc. Can lead to div. in court majority; m/h/t decide cases by plurality opinions of 3-4 justices

Justices who agree w/ outcome of case but not legal rationale may file 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, & Ideology o (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 strict constructionists (emph. on Framers original intentions) Determining the Constitutionality of a statute or policy requires the Court to rely on explicit mngs. of clauses in the Constitution o (Liberal) Judicial activism: Argues judges should use power broadly to further justice, esp. re: equality & personal liberty Roe v. Wade (1973) is ex./ j.a. run amok, as many believe the court s/h deferred policy-making to the states or to the elected portions of the federal govt Advocates blv. Judges should use power broadly to further justice; courts need to correct injustices comm./ other branches of govt E.g. Brown v. BOE (1954): racial segregation in schools violates equal protection clause of the 14th Amendment Conservative activists want to iss. Rulings that impose pol. blfs & policies on the country @ lg. Models of Judicial Decision-Making

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 medicallysupported opinion in Roe v. Wade (1973)

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

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 goals over long term E.g. certoriari: justices m/n vote to hear case if they susp. they will lose in the final decision

Public Opinion o o Justices read papers, watch TV, & know abt. public opinion P.o. acts as check on court power & as energizing factor o E.g. activist periods in SC correspond to pds. of socioecon. crisis E.g. just before Webster v. Reproductive Health Services (1989), Court subj. 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 Courts opinion 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 of Japanese Americans Ebb & flow of confidence in Court Highest after US v. Nixon (1974) Courts c/b target of pub. opinion

VII. Toward Reform: Power, Policy Making, and the Court Background o Marshall Court: Marbury v. Madison (1803) and judicial review

Warren Court Civil rights cases, broadened policy-making role Reversed trend of Court agreeing w/ exec. decisions during times of war 2008: Found Bushs denial of habeas corpus rights to prisoners @ Guantanamo Bay was unconstitutional Roberts Court

Policy Making o 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 child pornography) 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 religious establishment rights o Growing power: Courts now handle iss. that h/b considered political qs more approp. left to other branches of govt to decide Pre-1962: Court d/n hear cases abt sz. & population of congressional districts 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 Decisions o Judicial Implementation: How/ whether judicial decisions are translated into actual public policies affecting more than the immed. parties to a lawsuit Involves implementing & consumer populations Implementing 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

E.g. Reynolds v. Sims (1964): Every person s/h equally weighted vote in electing govt representatives Implementing pop= state legislatures & loc. govts (determine voting 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/ denies them E.g. teenagers seeking abortion need to know that most states require parental permission; crim. defendants & lawyers need to know implications for evidence presented @ trial

Success of judicial implementation dependent on how well-crafted/ popular a decision is E.g. Southern hostile rxn to Brown v. BOE & absence of precise implementation guidelines-> ruling went unenforced for many years Highlights how SC needs support of fed/st. courts a/w/a other govt agencies to carry out judgments