99 terms

ap gov final 2

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Public vs private bureaucracies
private= private companies, purpose to make and increase profits. single leadership
public= dual leadership, maximize efficient use of tax $
Weberian model for how bureaucracies should be run
max weber says:
hierarchal
precise decision-making based on rules. analysis and reasoning to solve problems, no guesswork
positions assigned by merit, not friendships
acquisitive model (critique of fed bureaucracies)
decisions made with self-interest of bureaucracy in mind.
most bureaucrats concerned with protecting their departments
agencies will seek new, unassigned goals to justify its own existence
monopolistic model (critique of fed bureaucracies)
act like monopolistic companies
no competing entity makes agencies act inefficiently, bad for taxpayers.
public bureaucracies have no reason to adopt cost-saving measures bc there is no competitor waiting to put the agency out of business
garbage can model (critique of fed bureaucracies)
opposite of weberian model. bureaucracies have no direction and do not follow formal rules. problems addressed by trial and error, inefficient use of tax $$
organization of fed bureaucracy
1) cabinet departments
2) independent executive agencies
3) independent regulatory agencies
4) government corporations
cabinet departments
14 total
1) secretaries- head of each department
2) line organizations - directly responsible to the pres. perform specific jobs (dept of treasury, prints money. dept of defense trains troops)
3) created or abolished by the pres with approval from congress
4) pres can hire and fire top cabinet officials. not required to take advice from cabinet
1 exception to the secretary being the head of the cabinet department
department of justice, headed by attorney general
Independent executive agencies
report directly to the president but not located within the cabinet.
1) pres appoints head
2) congress decides where the IEA will be located, but pres can request to keep it independent
ex) CIA, NASA
independent regulatory agencies
charged with making and implementing rules and regulations to protect the public interest
1) independent of all 3 branches- appointed by the pres with approval from the senate. members only removed by pres for specific wrongdoings
examples of independent regulatory agencies
FCC (fed communications commission) NRC (nuclear regulatory commission) FDA
agency capture within independent regulatory agencies
act of an industry being regulated gaining direct or indirect control over agency personnel and decision makers
occurs: wealth from industry used to influence pres/senate or direct bribery
result: less competition, higher prices, less choice, products less safe
deregulation and regulation within independent regulatory agencies
degregulation- removal of some amount of regulatory restraints on industry. too much may stifle the economy
occurred under Reagan
re-regulation- increase in the amount of or a change in the king of regulation an industry receives. occurred under pres Bush Sr (1990) within the Civil Rights ACt and CLean Air Act
Government Corporations
charge the public for a specific service
ex) US Postal Service
- have a board of managers and directors, but do not have stock for sale.
-profit used within company
Staffing the bureaucracy
political appointees and civil servants
pendelton act of 1883
civil service reform act
- required a merit based system in which the civil service commission administers competitive exams. no more spoils system!
Branti vs. Finkel (1980)
democratic head of a public defender's office fires two assistants who were vocal republicans.
holding- for bureaucratic jobs, political affiliation can only be considered when relevant to job descriptions.
Hatch Act (aka political activities act) 1939
civil service workers cannot take an active role in political campaigns
1972- fed court declared it unconstitutional violation of the 1st amendment, freedom of association
1973- Supreme court overturned, re-instates bc gov's interest in preserving a non-partisan civil service outweighs 1st amend. and civil servants knowingly waive this freedom
Civil Service Reform act of 1978
abolished civil service commission and created 2 new fed agencies:
1) office of personnel management (OPM)- recruit and test new workers
2) Merit Systems Protection Board (MSPB)- evaluate complaints, charges of wrong doing, and order corrective action against agencies
Government in the Sunshine Act (1976)
requires fed agencies to conduct all meetings in public, except matters relating to personnel problems or courtroom proceedings.
cannot apply to highly sensitive agencies
Sunset Laws
control the size and scope of agencies by limiting their life-span
existing programs reviewed for effectiveness, then terminated at the end of its charter unless congress extends it.
mostly enacted at state level.
combats acquisitive model... now a term limit.. but can't apply to consistently needed agencies
contracting out
paying the private sector to perform government services
ex) Housing and Urban Development- congress seeks to provide affordable housing to low-income families.
uses money inefficiently, congress could grant 'government gift certificates' for people and vouches would be used to have private homebuilders construct affordable housing, greater incentive for builders.
combats the monopolistic model
Whistleblowers
someone who reports to a supervising body or to the press on a gross governmental inefficiency or illegal action.

1978 Civil Service Reform act- prohibits any kind of punitive action against whistleblowers
False Claims act of 1986
whistleblowers receive a monetary award for reporting fraud against the US Government. act allows for the whistleblower to receive b/w 15-25% of the proceeds if prosecution occurs
1989 Whistleblower Protection Act
established an independent agency, office of the special counsel, to investigate complaints by whistleblowers that they have been punished for spilling the beans
Enabling Legislation
a broadly stated law passed by congress that authorizes the creation of an administrative agency to draft rules and regulations designed to accomplish the broadly stated purpose
example of enabling legislation
civil rights act of 1964-end workplace discrimination. agency created within the law to effectuate purpose- equal employment opportunity commission
3 reasons for why congress passes "enabling legislation"
1) lack of time
2) lack of expertise on topic
3) blame shifting/ credit claiming
challenging an agency's actions in court
agency regulations have the force of law so if found in violation of an agency's rule, one can challenge like this:
1) did not violate the rule
2) rule violates the constitution
3) rule extends beyond the scope of the law (unconst)

generally the court will not overturn an agency's decision
negotiated rulemaking
executive agencies allow/encourage business and public interest groups to become directly involved in the drafting of regulations . this is designed to reduce/prevent future courtroom battles over the meaning and applicability of agency rules
congress passes 1990 negotiated rulemaking act
allows agencies the ability to have those affected by a new rule to participate in the rule-drafting process
-rules published in the Federal Register
Older and Modern view of bureaucrats as policymakers/public administration
older- executive agencies merely enforce and administer laws created by congress and the pres
newer- executive agencies play a role in policy making. they are expertise and are beneficial
Iron triangles
3-way alliance occurs to dominate the policymaking process
congress, interest groups and executive agencies unite around a policy
idea behind it: interest groups influence congress as potential sources of voter support/contributors
- difficult to breakthrough this process
Issue networks
- policy determined on an issue-by-issue basis
-iron triangle does not best represent the policy-making system
- media, scholars, citizens, can joining together with C, EA, and IGs, to form issue networks
- each member uses their talents to push forward policy
Different methods of control that congress has over executive agencies
1) enabling legislation can enforce laws and limits
2)power of the purse- $$ control
3) oversight- investigations/hold hearings to oversee agency action
4) overturning exec. rules/regulations- congress passed the congressional review act in 1996- created special procedures for overturning regulations issued by agencies
5) can request one agency to investigate the actions or spending of another agency
(6. pres has some power to hire, fire and promite within the upper ranks of agencies)
Common Law
Decisions based on prevailing customs, but over time as more judicial decisions are recorded, on legal precedent
precedent
decisions made by courts on cases similar to the one being decided
stare decisis
"stand on decided cases"; judges follow the precedents set by their own courts or by higher courts with authority over them.
supreme court has authority over all other federal and state courts; decisions binding on all courts.
state supreme courts are only binding precedent for lower courts in same state
sources of american law
1) us constitution
2) state constitutions
3) laws passed by legislative bodies
4) administrative laws - rules and regulations issued by administrative agencies
5) case law- binding judicial interpretations of law that must be followed in future cases
Federal Courts - dual court system
jurisdiciton- legal authority to hear and decide on a case
- triggered if the primary issue in a case involves:
1) us constitution
2) us treaty
3) fed law
4) diversity of citizenship with $75,000 or more at issue
3-tiered model of the fed court
1) district courts - hear facts/decide on cases first. each state has at least 1.
2) appealing a district court decision- cases cannot be appealed bases on questions of fact, only questions of law
= constitutional issue/procedural defect that in some way rendered the district court case invalid: illegal admission of evidence, jury corruption, law unconst

note: appellate courts do not retry cases- disagreement with the outcome at district court level is NOT grounds for appeal. appellate courts will only overturn district courts on questions of law

3) US Court of Appeals - 13
11 are geographical circuits
12th- aka DC Circuit - most important, given responsibility of directly reviewing decisions and rule making of fed agencies (IRAs) independent of the national government
13th- federal circuit- jursidiction based upon subject rather than geographic region. hears appellate cases on patent law or where the US is a defendant
general vs. limited jurisdiction
general - district courts that hear a broad spectrum of issues (ex. civil, criminal and immigration cases)
limited- district courts that can only hear cases on particular issues (ex. bankruptcies, tax). high level of complexity
Appealing an Appellate Court decision
only place left to appeal is the supreme court. most appeals turned down for lack of time
parties
plaintiffs- person or organization who initiates the lawsuit
defendants- person or organization against whom the lawsuit is brought
role of interest groups
attempt to set judicial precedent by litigating (bringing to trial) cases involving their cause
amicus curaie briefs "friend of the court"
doc supporting a desired legal outcome in a case filed by a third party who is not directly involved in the case, but has an interest in the outcome.
class-action lawsuits
a lawsuit filed by an individual that seeks damages from a defendant for "all persons similarly situated"
benefit: saves huge amounts of time/money. reduces court congestion
concern: fraudulent ambulance chasing
non-compliance with courtroom procedure
all parties in court must follow any order given by the judge during the entirety of the case. those not following orders can be cited for either:
civil contempt- failing to comply with order for the benefit of a party to the proceeding. court can take one into custody or fine

criminal contempt- obstructing the administration of justice or bringing court into disrespect. court will order jail time or fine. punishment applies even after the court's order is followed
US Supreme Court (SCOTUS)
highest court in the country- all cases are appellate cases.
supreme court procedure
9 justices have numerous responsibilities including
- deciding which cases to hear during teh term
- schedule oral arguments
- reading legal briefs from all parties in the case
- meeting in conference to discuss the issues involved in each case and voting on case
- writing either majority, concurring or minority opinions for each case
Selection of cases for the supreme court0 factors that increase a case's changes
1) 2 lower courts in disagreement
2) lower court's ruling conflicts with S.C. precedent
3) case has broad public significance
4) state court holds a fed law invalid
5) fed court holds an act of congress unconst.
6) "Solicitor General' pressuring the court to hear a case-
solicitor general
10th justice.. high-ranking presidential appointee within the justice department which represents the national gov in the supreme court
writ of certiorari
given when the supreme court agrees to hear a case; it is an order for lower courts to send the records of the case to the supreme court for review.
rule of four- COurt will not issue a writ unless 4 justices approve
- when court denies request (90% of time), the decision does not reflect the court's opinion of the case or its agreement with the lower court.
procedure during supreme court cases
oral arguments sometimes included, bot focus is on points of law, not facts of a case
as lawyers address the courts, they are often directly questioned by any of the 9 justices at any time during the oral arguments
affirming lower court, reversal of lower court
the supreme court agrees with the decision of the court of appeals, which results in the enforcement of that court's judgement

reversal: court may reprimand the case, case sent back to the district court for new trial.
case may be dismissed with prejudice; prosecution may re-file charges at their own discretion
types of opinions written in the supreme court
unanimous opinion- all the justices unanimously agree on the result and the reasons for the result
majority opinion- 5-8 justices agree on the result and the reasons
concurrent opinion- 1-4 justices agree with the majority result, but not the reasons (do not cary same value)

dissenting opinions- 1-4 justices disagree with the majority's result and the reasons. important bc they help form arguments used many years later than case a court to reverse its own previous decisions.
Selection of Federal judges
pres is elected to serve a 4 yr term and can only serve 2, but his influence can last much longer depending on the judicial appointments he makes

ex) john kennedy selected Byron White as a justice to the Supreme Court. white served on the court during 8 diff presidents
Senate confirmations (selection procedure)
senate judiciary committee- conducts hearings with oral and written testimony about judicial candidates. majority of the senate must approve a judicial candidate for a presidential judicial nomination to take effect.
senatorial courtesy
special process by which only ONE senator can disqualify a presidential judicial nominee. 3 steps
1) nomination must be for a district court position
2) senator must be from the same state as judicial nominee
3) senator must be from the same political party as the Pres
nominations at the supreme court level
nominations are the most carefully screened and researched by the Pres
vetting
the process of performing a background check on someone before conveying a position or an award
most important factors for nominating supreme court officials
1) party affiliation of the candidate
2) legal background/expertise
3) demographic of candidate
statistics about political ideology of supreme court candidate
only 13% of nominations from a different party than the president.
historical influence on public policy by the supreme court: the Marshall Court (3 cases)
1) Marbury v. Madison- supreme court struck down the judiciary act of 1879 claiming that the court did not have the constitutional authority to compel the executive branch to honor judicial appointments. establisehd the judicial review
2)McCulluch v. Maryland and Gibbons v. Ogden: broad interpretations of the necessary and proper clause and the interstate commerce clause broadly expanded federal power at the expense of the states
historical influence on public policy by the supreme court: THe Roger Taney Court (1836-1864)
courts use of obiter dictum in the Dred Scott case obliterated existing compromises on the slave issue and inflamed tensions between the north and the south (bring the nation closer to a civil war)
New deal programs struck down by the supreme court. facts and outcomes
national industrial recovery act, agricultural adjustment act and many other new deal programs are struck down frustrating FDR's attempt to effectuate "relief, recovery and reform" during the great depression.
FDR declares the court to be "nine old men" and attempts to pack the supreme court by requesting an increase in its size (9 to 21})
attempt to co-opt the courts fails as congress and the state legislatures refuse to pass the necessary const amendment
"switch in time saves nine" justice owen roberts reversed his usual position on new deal programs after the co-opting attempt, creating a new 5-4 majority in favor of New deal programs. this prevents future attempts by FDR to co-opt the court
historical influence on public policy by the supreme court: The (Earl) Warren Court (1953-1969)= Brown v. topeka board of education
1) Brown V. Topeka Board of Education 1954
a class action suit, 13 parents suing on behalf of their 20 children. filed against the board challenging state segregation laws as violating the 14th amend.
lead plaintiff= linda Brown, and African american 3rd grade student was required to walk miles to a segregated black school, while a nearby white school refused admittance.
holding- previous doctrine of 'separate but equal' overturned.
integration ordered to occur with "all due sped"
historical influence on public policy by the supreme court: The (Earl) Warren Court (1953-1969 - Gideon v. Wainwright 1963
after being accused and charged with breaking an entering, an uneducated gideon requests an attorney, as he cannot afford to hire one. the state court in florida denies this request , citing florida law, which only requires appointing counsels in cases where one is charged with a capital offense.
gideon is forced to represent himself, loses badly, appeal reaches supreme court.
holding- one's right to a fair trial is violated if one is not assured adequate legal representation. state courts are required to provide counsel when requested by defendants.
historical influence on public policy by the supreme court: The (Earl) Warren Court (1953-1969: Miranda v. ARizona 1966
without being informed of his right to an attorney, or that he had the right not to answer questions, Ernesto miranda was interrogated by police. during the course, he confesses to the crime in question (robbery) and to rape.
holding- confessions during interrogations cannot be admissible under the 5th amend right against self-incrimination and the 6th amend right to an attorney.
exceptions:
1) exigent public safety considerations- if immediate info is needed to maintain public safety, questioning can commence without miranda until situation is stabilized.
2) excited utterance- admissible if police had attempted in good faith to read miranda rights prior to the utternace.

significance- all accused/interrogated individuals msut be informed of their right to remain silent and to have an attorny, otherwise any obtained info or confession will be invalidated at trial.
historical influence on public policy by the supreme court: The (Earl) Warren Court (1953-1969 - MAPP VS OHIO 1961
dorlee mapp is suspected of harboring a bombing fugitive. ohio state police request to search; mapp phones attorney;attorney inquires about warrant (police don't have one), and mapp refuses to allow search
- police return an hour later; present fake warrant and uncover highly illegal matters.
- at trial, mapp argues to exclude materials based on a 4th amendment violation (illegal search/seizure - no proper warrant was presented)
-state of ohio- admits having no valid warrant but argues that the 4th amend only applies to fed police
HOLDING- language within the 14th amend incorporates the Bill of Rights as also applying to states
incorporation theory- no state shall deny equal protecting under the law to any citizen. the law includes the bill of rights and therefore states must provide this protection.
therefore, the state search is invalid, as it violates the 4th amend, evidence gets excluded.
SIGNIFICANCE- state govs are required to extend the protections afforded under the bill of rights to citizens within their states.
judicial activism vs. judicial restraint
the ability of the court to act as policymakers often depends on the activism or the restraint of the court.
judicial activism- a court that aggressively uses its power of judicial review to influence policy and check the legislative and executive branches
judicial restraint- a court that rarely uses judicial review and largely defers public policy matters to the elected officials in the legislative and executive branch.
judicial activism knows no ideological bounds
conservative and liberal courts have both shown restraint and activism at various times.
liberal courts tend to be more activist, but the ideological bend of the court has not always accurately predicted is activism.
executive checks
judicial implementation: president has power to enforce judicial decisions through the use of the executive bureaucracy

presidential appointment power- pres can change political slant of court with nominations. this can ssist the pres in accomplishing goals long after he is in office
Legislative checks
1)refusal to allocate funds- the legislature can choose to not allocate funds necessary to enforce the decision
2) legal revisions- when the courts make a ruling on a particular law, the legislature can revise the law if the interpretation of a court was not what the legislature intended.
3) constitutional amendments- congress can propose if they don't agree with the supreme court
4) senate confirmation process- senate judiciary committee can impact the court's demographic structure by who is ratified/rejected
Judicial checks (on themselves)
some amount of judicial restraint is required bc of certain judicial traditions and doctrines
1)stare decisis- courts must follow establisehd precedent when deciding cases.
2) justiciable disputes: courts will only hear disputes arising out of a question of law from actual cases. it will not rule on hypothetical matters
3) fact distinguishment- lower courts can attempt to disassociate the facts of their case from existing supreme court precedent
public opinion
can't directly influence selection of SCOTUS, but it can have indirect influence in the selection of the president- pres's political affiliation can alter the ideological make-up of the court
do justices have control over the ideology of their replacements
YES. decidiing when to retire from the supreme court allows influence over the replacement
who can be president? constitutional requirements
article 2, sec 1
- must be a natural born citizen
- min age is 35
- 14 yrs as a resident of the US
- cannot be from the same state as the VP
Electoral college
chosen by state legislatures- each state selects a # of electors that is equal to the # that state sends to congress (total = 538)
- least populous states = 3 electors
- to win pres secures a majority of the electoral vote (270)
unit rule
all the electors from a given state must vote in one indivisible block
exceptions: nebraska and Maine
12th amendment provisions and when it is invoked
invoked when no presidential candidate wins the 270 majority electoral votes
- house of reps holds run-off elections
- only top 3 electoral vote getters participate
- each state gets only 1 vote in run-off elections
-senate selects VP
Chief of State
ceremonial Head- awards medals to heroes, dedicates a park or throws out first pitch in a ballgame.
could be used to obtain PR benefits and public support
Chief Executive
leader of the fed gov within executive branch
- constitutionally bound to enforce
1) acts/laws of congress
2) judgements of fed courts
3) treaties signed by the US
ROLES: Head of bureaucracy. powers of appointment and removal high ranking non-elected officials.
power to grant reprieves (postponent), pardons (release) and commutations (reduction)
Pendleton ACt of 1883
required civil service positions within the fed gov to be merit based, ended the spoils system.
commander in chief
leader of the armed forces- HOW conflict is conducted.
-power to order use of nuclear forces, breifcase called "the football"
-power to send in troops, even without a declaration of war, for limited time
- war powers resolution: pres must consult with congress within 48 hrs of sending troops into action and unless congress approves within 60 days, the forces must be withdrawn
Chief Diplomat
setting the direction of foreign policy.
- power of diplomatic recognition
- make treaties: sole power, require 2/3 vote ratification approval of senate. 1300
- make executive agreements- no approval of senate needed. 9000 made
- nominate foreign ambassadors
differences between treaties and executive agreements
treaties: binding on successive presidential administrations. reflect consent of the whole gov
exec agreements- speed, secrecy, no need for senate approval
Chief Legislator
initiator of legislative agenda for congessional action
1) state of the union address. (Jefferson didn't give one) ARTICLE 2, SEC 3
2) getting legislation passed thru persuasion, public pressure and veto power.
3) line item veto- possessed in 1996. reagan lobbied for this to control cong spending.
Clinton v. City of NY 1998
line item veto challenged by organizations that were financially harmed due to the pres line item use. supreme court deems the line item veto unconst (if founders intended this significant power, they would have written it).
violates the presentment clause (article 1, sec 7).. bill must be presented in identical form from both chambers and if not favored, that the president can veto it and send it back with his objects
BILL 4890 modified line item veto. pres vetos, send back to each chamber of cong for re-vote
statutory powers
not in const. establisehd by law.
ability to declare national emergencies
US vs. Curtiss-Wright Export Corp 1936
US seeks to avoid escalation between warring south american nations so congress authorized FDR to ban sale of weapons to two warring south american nations.
curtis-wright company charged with violating by selling to bolivia, claims order is unconst bc congress cannot delegate its lawmaking power to the pres
HOLDING- const.
Youngstown sheet and tube Co. vs Sawyer 1952
pres truman seeks to avert worker's strike in nation's steel mills. issues a federal directive, without requesting congressional approval, to seize the mills and operate them under federal authority.
holding- court strikes down pres's seizure as unconst.
court lays out 3-part test for when ELPS are permissible: when Pres acts in accordance expressed or implied aurthorization of C, ELPS at max.
when pres acts in absence of congressional grant, elps uncertain (flux)
when pres acts in congradiction to express or implied will of congress, elps at min
executive orders
Pres has limits on subjects: enforcing fed law, enforcing const or treaties, establishing/changing procedure of executive agencies.
-orders must be registered in the Federal Reigster
- ex) implement price controls under emergency conditions
Executive Privilege
right of high-ranking executive officials to refuse to testify before or withhold info from a legislative committee
US Vs. Nixon 1947
5 men caught in the democratic national committee headquarters looking thru stuff to hurt George McGovern's campaign. Nixon's phone convos in the oval office were taped and he refuses to turn them over.
holdings - court upheld the doctrine of ex privilege but declared that it is NOT an absolute right. in this case, exev privilege was outweighed by the need to develop all the relevant facts of the criminal trial
Impeachment process
congress action.
house can impeach with a majority vote (50.1%), if so then the senate conducts a removal trial, 2/3 vote required.
guilt necessary, but not sufficient for removal
VP's job
Prez of the senate. allowed to vote on legislation in the senate ONLY when there is an exact tie
Presidential line of succession (25th amend)
1) VP
2) speaker of the house
3) pres pro tempore of the senate
4) secretary of state
5) secretary of the treasury
6) secretary of defense
7) attorney general
8) secretary of the interior
9) secretary of agriculture
10) sec of commerce
11) sec of labor
12) health and human services
13) housing and urban development
14) transportation
15( energy
16) educatoin
17) veterans affairs
18) homeland security
how often a pres has been replaced
8 occassioned the VP has replaced the Pres.
other than Nixon's resignation, all have been due to the death.