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Political Science 201 Exam #3
Terms in this set (196)
What characterizes bureaucratic organization?
Understand how the executive branch is organized, generally.
-cabinet departments, agencies, and bureaus are the operating parts of the bureaucratic whole. these parts can be separated into four general types:
1. cabinet departments
2. independent agencies
3. government corporations
4. independent regulatory commissions
Understand how the executive branch is organized, cabinet departments:
-at the top is the head of the department, called the Secretary
-below the department head is his deputy, Deputy Secretary
-below the department head and his deputy are several top administrators, such as the general counsel and the chief economist, whose responsibilities cut across the department functions and provide the secretary with the ability to manage the entire organization
-of equal status are the undersecretaries and assistant secretaries, each of whom has management responsibilities for a group of operating agencies, which are arranged vertically below each of the undersecretaries
-the next tier, generally called the bureau level, is the highest level of responsibility for specialized programs.
---- the names of these bureau-level agencies are often very well known to the public: the Forest Service and the Food Safety and Inspection Service are two examples.
--sometimes they are officially called bureaus, as in the FBI, which is a bureau in the Department of Justice. nevertheless, bureau is also the generic term for this level of administrative agency
-within the bureaus, there are divisions, offices, services, and units--sometimes designating agencies of the same status, sometimes designating agencies of lesser status
Understand how the executive branch is organized, independent agencies:
-not all government agencies are part of cabinet departments.
- a second type of agency, the independent agency, is set up by Congress outside the departmental structure altogether
-however, the president still appoints and directs the heads of these types of agencies
-independent agencies usually have broad powers to provide public services that are either too expensive or too important to be left to private initiatives
--ex: NASA, CIA, EPA
Understand how the executive branch is organized, government corporations:
-government corporations are a 3rd type of government agency
-they are more like private businesses performing and charging for a market service, such as transporting railroad passengers (Amtrak) or the US Postal System
Understand how the executive branch is organized, independent regulatory commissions:
-fourth type of agency is the independent regulatory commission, given broad discretion to make rules
-the first regulatory agencies established by Congress, beginning with the Interstate Commerce Commission in 1887, were set up as independent regulatory commissions because Congress recognized that regulatory agencies are mini legislatures, whose rules and rulings are the same as legislation and legislative interpretation but require the kind of expertise and full-time attention that is beyond the capacity of Congress.
-beginning in the late 1960's and early 1970's, all new regulatory programs, with a few exceptions (such as the Federal Election Commission), were placed within existing departments and made directly responsible to the president
-since the 1970s, no new major regulatory programs had been established, independent or otherwise, until the financial crisis of 2008-2009. Congress and the president then formulated new regulatory arrangements involving the Federal Reserve System, the Federal Deposit Insurance Corporation, the Treasury, and related industries.
-the Dodd-Frank Wall Street Reform and Consumer Protection Act brought major changes to the regulation of banks and other financial institutions.
-The act created several new regulatory bodies, including the Financial Stability Oversight Council, the Office of Financial Research, and the Bureau of Consumer Protection
Work of Federal Agencies
1. Implementation of Policy
policy made by Congress is actually implemented through Federal Agencies
2. Regulation of Private Sector
3. Administer Services
examples: Department of Motor Vehicles (DMV), Social Security, Medicare
there are too many agencies in the executive branch to identify all them all, so a simple classification of agencies will be helpful. instead of dividing the bureaucracy into four general types, an alternative classification organizes each agency by its mission, as defined by its jurisdiction
1. clientele agencies
2. agencies for maintenance of the Union
3. regulatory agencies
4. redistributive agencies
1. clientele agencies
-although all administrative agencies have clienteles, certain agencies are singled out and called clientele agencies because they are directed by law to foster and promote the interests of their clientele
-most clientele agencies locate a relatively large proportion of their total personnel in field offices dealing directly with their clientele
--ex: Extension Service of the Department of Agriculture
-these same agencies also seek to foster the interests of their clientele by providing "functional representation"
--ex: extension agents
-agencies try to learn what their clients' interests and needs are and then operate almost as a lobby in Washington on their behalf
ex of clientele agencies
-entire Department of Agriculture, so are the departments of the Interior, Labor, and Commerce
-the Department of Commerce and Labor was founded in 1903 as a single department "to foster, promote, and develop the foreign and domestic commerce, the mining, the manufacturing, the shipping, and fishing industries, and the transportation facilities of the United States."
--it remained a single department until 1913, when the law created the separate departments of Commerce and Labor, with each statute providing for the same obligation: to support and foster each agency's respective clientele
-the Department of Agriculture serves the many farming interests that, taken together, are one of the largest economic sectors of the United states
--The Extension Service of the Department of Agriculture has local "extension agents" who consult farmers on farm productivities
-In addition, others clientele agents include five of the newest cabinet departments: including-
Housing and Urban Development (HUD), Transportation (DOT), Energy (DOE), Education (ED), and Health and Human Services (HHS)
2. agencies for maintenance of the Union
-the Constitution entrusts many of the vital functions of public order, such as the police, to the state governments. But some agencies vital to maintaining national bonds do exist in the national government, and they can be grouped into 3 categories:
1. agencies for managing the sources of government revenue
2. agencies for controlling conduct defined as a threat to international security
3. agencies defending American security from external threats
-the most powerful departments in these areas are: Treasury, Justice, Defense, State, and Homeland Security
2. agencies for maintenance of the Union: Revenue agencies
-the Treasury Department's Internal Revenue Service (IRS) is the most important revenue agency
--it is one of the federal governments largest bureaucracies with over 100,000 employees spread throughout 4 regions, 63 districts, 10 service centers, and hundreds of local offices.
2. agencies for maintenance of the Union: Agencies for Internal Security
-as long as the country is not in a state of insurrection, most of the task of maintaining the Union takes the form of legal work, and the main responsibility for that lies with the Department of Justice
-the largest and most important agency in the Justice Department is the Criminal Division, which is responsible for enforcing all the federal criminal laws except for a few specifically assigned to other divisions
-criminal litigation is conducted by the U.S. attorneys. A presidentially appointed U.S. attorney is assigned to each federal judicial district, and he/she supervises the work of assistant U.S. attorneys.
-the work or jurisdictions of the Antitrust and Civil Rights Divisions are described by their official names.
-the FBI is another bureau of the Department of Justice and it handles no litigation but instead serves as the information-gathering agency for all the other divisions
-in 2002, Congress created the Department of Homeland Security to coordinate the nation's defense against the threat of terrorism. It is responsible for a number of tasks, including protecting commercial airlines from would-be hijackers
-most visible to the traveling public are the employees of the Transportation Security Administration (TSA), consisting of 50,000 security officers and employees protecting airports and rail and bus depots, and staffing security screening operations. TSA is the largest unit of the DHS
2. agencies for maintenance of the Union: Agencies for External Security
-two departments occupy center stage here, State and Defense
-the State Department primary task is diplomacy.
-but it is also composed of geographic, or regional, bureaus concerned with all problems within that region of the world; "functional" bureaus, which handle things as economic and business affairs, intelligence, and research; and international organizations and bureaus of internal affairs, which handle such areas as security, finance and management, and legal issues
-fewer than 20% of all US government employees working abroad are directly under its authority.
- by far the largest number of career government professionals working abroad are under the authority of the Defense Department
-the creation of the Department of Defense by legislation was an effort to unify the two historic military departments, the War Department and the Navy Department, and to integrate them into a new department, the Air Force Department. Real unification did not occur, however. Instead, the Defense Department added more pluralism to national security.
-the American military problem is that of pork-barrel politics: defense contracts are often incredibly lucrative for local districts, so military spending becomes a matter of parochial interests as well as military need. The bureaucracy ensures political support among elected officials by making sure to distribute things--military bases, contracts, facilities, and jobs--to the states and districts that elected the legislators.
3. regulatory agencies
-our national government didn't even begin to get involved in the regulation of economic and social affairs until the late 19th century. Until then, regulation was strictly a state and local affair
-the federal regulatory agencies, are, as a result, relatively new, most dating from the 1930s. But they have come to be extensive and important
-the US has many regulatory agencies. Some of these are bureaus within departments, such as the FDA in the Department of Health and Human Services. Others are independent regulatory commissions, for example, the Federal Trade Commission (FTC)
-an agency or commission is regulatory if Congress delegates to it relatively broad powers over a sector of the economy of a type of commercial activity and authorizes it to make rules governing the conduct of people and businesses within that jurisdiction
-the rules they make are referred to as administrative legislation
-and when these agencies make decisions or orders settling disputes between parties or between the government and a party, they are acting like courts
1930s reference to regulatory agencies as the "headless fourth branch" because
-because regulatory agencies exercise a tremendous amount of influence over the economy and because their rules are a form of legislation, Congress was at first unwilling to turn them over to the executive brach as ordinary agencies under the control of the president.
-consequently, most of the important regulatory programs were delegated to independent commissions with direct responsibility to Congress rather than to the White House. This is the basis for the reference as the "headless fourth branch"
-with the rise of presidential government, most recent presidents have supported more regulatory programs but have successfully opposed the expansion of regulatory independence.
-the 1960s and 1970s witnessed the adoption of an unprecedented number of new regulatory programs but only a few new independent commissions
Understand the possible principle-agent problems involved with delegation to the bureaucracy and controls that elected officials (members of Congress, the President) can exert over the bureaucracy.
-elected officials= principals
-a political principal--a collective principal consisting of the president and coalitions in the House and Senate--formulates policy and creates an implementation agent to execute its details. the agent, however, has policy preferences of its own and, unless subjected to further controls, will inevitably implement a policy that drifts toward its ideal (bureaucratic drift)
-a variety of controls might
a variety of After the Fact controls that might conceivably restrict bureaucratic drift
-legislative scholars often point to congressional hearings in which bureaucrats may be publicly humiliated
-annual appropriations decisions may be used to punish out-of-control bureaus
-watchdog agents, such as the Government Accountability Office, may be used to monitor and scrutinize the bureau's performance.
--but these all come after the fact and may be only partially credible threats to the agency
Before the Fact Controls:
-the appointment process
--the adroit control of the political stance of a given bureau by the president and Congress, through their joint powers of nomination and confirmation, is a self-enforcing mechanism for ensuring reliable agent performance
--the general rules and regulations that direct the manner in which federal agencies conduct their affairs are contained in the Administrative Procedure Act. This act is almost always the boilerplate of legislation creating and renewing federal agencies.
---It is not uncommon, however, for an agency's procedures to be tailored to suit particular circumstances.
Understand the Federal Reserve system and the various ways it tries to control the economy.
-in 1913, the Federal Reserve System was established to integrate private banks into a single national system. The Federal National System didn't become a central bank but is rather composed of 12 Federal Reserve banks, each located in a major commercial city.
-these banks are not ordinary banks; they are banker's banks:
--make loans to other banks
--supply the economy with currency and coins
--play a regulatory role over the member banks
-every national bank must be a member of the Federal Reserve System and must follow national banking rules
-state banks and savings and loan associations may also join if they accept national rules
-at the top of the system is the Federal Reserve Board
Federal Reserve Board
-at the top of the Federal Reserve System
-comprising of 7 members appointed by the president (with Senate confirmation) for 14 year terms
-the chairman of the Fed is selected by the president from among the seven members of the board for a 4-year term
-In all other concerns, however, the Fed is an independent agency inasmuch as its members cannot be removed during their terms except "for cause," and the president's executive power does not extend to them or their policies.
-in recent years the Fed has been a politically visible figure
Advantage that a bank gains from being in the Federal Reserve System
-main advantage: it can borrow money from the system
--this enables banks to expand their loan operations continually, as long as there is demand for loans in the economy (this gives Fed power)
-federal government also provides insurance to foster credit and encourage private capital investments
--the FDIC insures bank deposits up to $250,000
--another important promoter of investment is the federal insurance of home mortgages through the Department of Housing and Urban Development (HUD)
---by guaranteeing mortgages, the government can reduce the risks that banks run in making such loans, thus allowing banks to lower their interest rates and make such loans more affordable to middle- and lower-income families
The Fed's 1st power: the ability to expand and contract the amount of credit available in the United States
(1) gets power from: the ability to expand and contract the amount of credit available in the United States
**** it can affect the total amount of credit through the interest it charges (called discount rate) on the loans it extends to member banks
--if the Fed significantly decreases the discount rate, it can give a boost to the economy (stimulate economy)
--if the Fed raises the discount rate, it can put a brake on the economy because the higher discount rate also increases the general interest rates charged by leading private banks to their customers
-responsible for ensuring high employment as well as price stability
****it is also important in fighting inflation
--you raise interest rates in order to dampen inflation
--you lower interest rates in order to increase inflation in order to promote economic activity that might bring down unemployment
The Fed's 2nd power: control over the reserve requirement
(2) control over the reserve requirement--the amount of cash and negotiable securities every bank must hold readily available to cover withdrawals and checks written by its depositors.
****it can increase or decrease the reserve requirement which affects have much money the banks can lend
--if the Fed increases the reserve requirement, it can decrease significantly the amount of money banks have to lend
--if the Fed decreases the reserve requirement, banks can be more liberal in extending more loans
The Fed's 3rd power: open-market operations
(3) open-market operations
**** the Fed buys and sells government securities to increase or decrease the supply of money in the economy
--when the Fed buys government securities in the open market, it increases the amount of money available to consumers to spend or invest
--when the Fed sells securities, it is reducing the money supply
The Fed's 4th power: opportunity for member banks to borrow from each other
(4) opportunity for member banks to borrow from each other
-derived from one of the important services the Federal Reserve System renders
****one original reason to create a FRS was to balance regions of the country that might by vigorously expanding with other areas that might be dormant.
--the national system would enable the banks in a growing region, facing great demand for credit, to borrow money from banks in regions of the country where the demand for credit is much lower.
---this exchange is called the "federal funds market," and the interest rate charged by one bank to another, the federal funds rate, can be manipulated just like the discount rate, to expand or contract credit
How is the federal court system organized?
nearly ___% of all court cases in the US are heard in state courts
types of courts for a criminal case
(1) trial court, if a CRIMINAL case is brought to trial, it will be heard in a state trial court in front of a judge and sometimes a jury, who will determine whether the defendant violated state laws
(2) court of appeals, if the defendant is convicted, he may appeal the conviction to a higher court, such as a state court of appeals
(3) state's supreme court, and from there to a state's supreme court
types of court for a civil case
(1) trial court, if a CIVIL case is brought to trial, it will be brought in the courts established by the state in which the activity in question took place. The judge hearing the case would apply state law and state precedent to the matter at hand
(2) court of appeals, if the defendant is convicted, he may appeal the conviction to a higher court, such as a state court of appeals
(3) state's supreme court, and from there to a state's supreme court
in both civil and criminal matters, most cases are settled before trial through negotiated agreements between the parties. in criminal cases, these agreements are called
plea bargains. such bargains may affect the severity of the charge and/or of the sentence
U.S. military operates its own court system under the Uniform Code of Military Justice
-the Uniform Code of Military Justice--governs the behavior of men and women in the armed services.
-on rare occasions, the government has constituted special military tribunals to hear cases deemed inappropriate for the civil courts. such tribunals tried Nazi saboteurs apprehended in the United States during WWII
cases are heard in the federal courts if
-cases are heard in the federal courts if they involve federal laws, treaties with other nation, or the U.S. Constitution; these areas are the official jurisdiction of the federal courts.
-in addition, any case in which the U.S. government is a party is heard in the federal courts
-civil cases involving the citizens of more than one state and in which more than $75,000 is at stake may be heard in either the federal or the state courts, usually depending on the preference of the plaintiff
-the jurisdiction of each federal court is derived from the US Constitution and federal statutes
-Article III of the Constitution gives the Supreme Court appellate jurisdiction in all federal cases and original jurisdiction in cases involving foreign ambassadors and issues in which a state is a party. It assigns original jurisdiction in all other federal cases to the lower courts that Congress was authorized to establish
-over the years, Congress enacted statutes creating the federal judiciary system, it specified the jurisdiction of each type of court it established
(1) for the most part, Congress assigned jurisdictions on the basis of geography.
(2) Congress has also established several specialized courts that have nationwide original jurisdiction in certain types of cases.
(3) Congress, in addition, established a court with nationwide appellate jurisdiction.
(4) Congress established other federal courts with assigned specialized jurisdiction that don't have nationwide original jurisdiction
Congress enacted statutes creating the federal judiciary system, it specified the jurisdiction of each type of court it established: Assigned Jurisdiction on Basis of Geography
--for the most part, Congress assigned jurisdictions on the basis of geography.
---the nation is currently, by statute, divided into 94 judicial districts, including one court for each of three US territories: Guam, The U.S. Virgin Islands, and the Northern Marianas. Each of the 94 districts courts exercises jurisdiction over federal cases arising within its territorial domain
---the judicial districts are organized into 11 regional circuits and the District of Columbia circuit. Each circuit court exercises appellate jurisdiction over cases heard by the district courts within its region
Congress enacted statutes creating the federal judiciary system, it specified the jurisdiction of each type of court it established: Assigned Jurisdiction Based on Specialized Courts that have Nationwide Original Jurisdiction
--Congress has also established several specialized courts that have nationwide original jurisdiction in certain types of cases.
---these include: the U.S. Court of International Trade, created to deal with trade and custom issues, and the U.S. Court of Federal Claims, which handles damage suits against the United States
Congress enacted statutes creating the federal judiciary system, it specified the jurisdiction of each type of court it established: Assigned Jurisdiction Based on Nationwide Appellate Jurisdiction
---this is the U.S. Court of Appeals for the Federal Circuit, which hears appeals involving patent law and those arising from the decisions of the trade and claims courts.
Congress enacted statutes creating the federal judiciary system, it specified the jurisdiction of each type of court it established: Assigned Jurisdiction Based on Specialized Courts
--Other federal courts assigned specialized jurisdiction by Congress include the U.S. Court of Appeals for Veteran Claims, which exercises exclusive jurisdiction over cases involving veterans' claims, and the U.S Court of Appeals for the Armed Forces, which deals with questions of law arising from trials by court martial
with the exception of the claims court and the Court of Appeals for the Federal Circuit, these specialized courts were created not in accordance with Article III but by Congress on the basis of the powers the legislature exercises under Article I.
-Article III was designed to protect judges from political pressure by granting them life tenure and prohibiting reduction of their salaries while they serve
-the judges of Article I courts, by contrast, are appointed by the president for fixed terms of 15 years and are not protected by the Constitution from salary reduction
--As a result, these so-called legislative courts are generally viewed as less independent than the courts established under Article III
--the three territorial courts were also established under Article I, and their judges are appointed for 10-year terms
the appellate jurisdiction of the federal courts also extends to cases originating in the state courts.
-in both civil and criminal cases, a decision of the highest state court can be appealed to the US Supreme Court by raising a federal issue.
-appellants might assert, for example, that they were denied the right to counsel or otherwise deprived of the due process guaranteed by the federal Constitution, or they might assert that important issues of federal law were at stake in the case
-US Supreme Court is not obligated to accept such appeals and will accept them only if it believes that the matter has considerable national significance
in criminal cases defendants who have been convicted in a state court may request a writ of habeas corpus from a federal district court
-sometimes known as the Great Writ, the habeas corpus is a court order to the authorities to release a prisoner deemed to be held in violation of her legal rights
-generally speaking, state defendants seeking a federal write of habeas corpus must show that they have exhausted all available state remedies and raise issues not previously raised in their state appeals
-federal courts of appeals, and, ultimately, the US Supreme Court have appellate jurisdiction over federal district court habeas decisions
Federal Trial Courts
-courts of general jurisdiction
-cases are, in form, indistinguishable from cases in the state trial courts
-89 district courts in the 50 states, one each in the District of Columbia and Puerto Rico, and one in each of the 3 U.S. territories
-663 district judgeships
-district judges are assigned to district courts according to the workload; the busiest of these courts may have as many as 28 judges
--only one judge is assigned to each case, except where statute provide for 3-judge courts to deal with special issues
-routines and procedures of the federal district courts are essentially the same as those of the lower state courts except that federal procedural requirements tend to be stricter
--states, for example, dont have to provide a grand jury, a 12-member trial jury, or a unanimous jury verdict. Federal courts must do all these things.
-in addition to the district courts, cases are handled by several specialized courts, including the U.S. Tax Court, the Court of Federal Claims, and the Court of International Trade
Federal Appellate Courts
-roughly 20% of all lower-court cases, along with appeals of some federal agency decisions, are subsequently reviewed by a federal appeals court
-country is divided into 12 judicial circuits, each with a U.S. Court of Appeals.
-every state and the District of Columbia are assigned to the circuit in the continental US that is closest to it
-a 13th appellate court, the U.S. Court of Appeals for the Federal Circuit, is defined by subject matter (patent law and decisions of trade and claims courts) rather than geographic jurisdiction
-except for cases selected for review by the Supreme Court, decisions made by the appeals courts are final.
--because of this, certain safeguards have been built into the system
(1) the provision of more than one judge for every appeals case. each court of appeals has from 3-28 permanent judgeships. although normally three judges hear appealed cases, in some instances a larger number of judges sit together en banc
(2) the assignments of a Supreme Court justice as the circuit justice for each of the 12 circuits. the circuit justice deals with requests for special action by the Supreme Court. the most frequent and best-known action of circuit justices is that of reviewing requests for stays of execution when the full Court is unable to do so--mainly during the summer, when the Court is in recess
The Supreme Court
-America's highest court
-Article III of the Constitution vests "the judicial power of the the United States" in the Supreme Court.
-it is made up of a chief justice and 8 associate judges
--the chief justice presides over the Court's public sessions and conferences. in the Court's actual deliberations and decisions, however, the chief justice has no more authority than his colleagues
-each justice casts one vote
--the chief justice is the first to speak and vote when the justices deliberate; voting then proceeds in order of seniority. In addition, if the chief justice has voted with the majority, he decides which of the justices will write the formal opinion for the Court
-Constitution doesn't specify the number of justices who should sit on the Supreme Court; Congress has the authority to change the Court's size.
-in 1937, FDR, infuriated by several Supreme Court decisions, asked Congress to enlarge the Court so that he could add sympathetic justices to the bench...Congress balked at FDR's "court packing plan," but the Court gave in to Roosevelt's pressure and began to take a more favorable view of his policy initiatives, and in return the president dropped his efforts to enlarge the Court. The Court's surrender to FDR is known as "the switch in time that saved nine"
How are judges appointed to the federal bench?
-president appoints federal judges
-nominees are typically prominent or politically active members of the legal profession.
-many federal judges previously served as state court judges or state or local prosecutors; some were prominent attorneys; others were highly regarded law professors
--Thurgood Marshall, Supreme Court justice, was the chief counsel for the NAACP and argued Brown vs. Board of Education before the Court
-prior experience as a judge is not necessary
-in general, presidents endeavor to appoint judges who possess legal experiences and good character whose partisanship and ideological views are similar to theirs
-Constitution calls to the Senate to "advise and consent" to federal judicial nominations. This power gives the upper chamber of Congress an important check on the president's influence over the judiciary.
-before the president formally nominates a candidate for a federal district judgeship, the senators from the nominee's state must indicate that they support her. This is an informal but seldom violated practice called senatorial courtesy
-once the president has formally nominated an individual, the appointment must be considered by the Senate Judiciary Committee and confirmed by a majority vote in the full Senate.
-the politics and rules of the Senate determine the fate of a president's judicial nominees and influence the types of people the president selects for judicial positions.
--like any piece of legislation, approval of a nomination must be given by the relevant committee and brought to the floor of the Senate, and get a majority vote. There is always the risk of a filibuster, and cloture of debate requires an affirmative vote of 3/5 of the senators.
-since the mid 1950s, then, judicial appointments have become increasingly partisan and, ultimately, ideological.
-today, the Judiciary Committee of the Senate nominees for the federal judiciary to lengthy questioning about a wide range of issues, from gun rights to abortion to federal power under the commerce clause. Senators' support for or opposition to specific nominees turns on the individual's ideological and judicial views as much as her qualifications
How are senators appointed to the federal bench: Senatorial Courtesy
-before the president formally nominates a candidate for a federal district judgeship, the senators from the nominee's state must indicate that they support her. This is an informal but seldom violated practice called senatorial courtesy
-if one or both senators from a prospective nominee's home state belong to the president's political party, the president will almost invariably consult them and secure their blessing for the nomination. Because the president's party in the Senate will rarely support a nominee opposed by a home-state senator from their ranks, this arrangement gives these senators virtual veto power over appointments to the federal bench in their own states
--senators often see this power to grant their support as a way to reward important allies and contributors in their states
-if the state has no senator from the President's party, the governor or member of the state's House delegation may make suggestions. Senatorial courtesy is less consequential for appellate court appointments and plays no role in Supreme Court nominations
What is the power of judicial review?
-the power of the judiciary to examine and, if necessary, invalidate actions undertaken by the legislative and executive branch.
When and how was judicial review established?
-Constitution doesn't give the Supreme Court the power of judicial review of congressional enactments
-disputes over the intentions of the framers were settled in 1803 in the case of Marbury vs. Madison. In that case, William Marbury sued Secretary of State James Madison for Madison's failure to complete Marbury's appointment to a lower judgeship that had been initiated by the outgoing administration of President John Adams. Chief Justice John Marshall, speaking on behalf of the Court, used the case to declare a portion of a law unconstitutional. In effect, he stated that although the substance of Marbury's request was not unreasonable, the Court's jurisdiction in the matter was based on a section of the Judiciary Act of 1789, which the Court's jurisdiction declared unconstitutional
-the legal power to reviews acts of Congress has not been seriously questioned since 1803 because judicial power has been accepted as natural, if not intended. Another reason is because during the early years the Supreme Court used the power sparingly, striking down only 2 pieces of legislation in its 75 years of history. One of these was the 1857 Dred Scott ruling
-in recent years, with the power of judicial review securely accepted, the Court has been more willing to use it. Between 1980-2008, the Supreme Court struck down 56 acts of Congress in whole or in paart
How can judicial review be used for state actions
Judicial review is neither granted by the Constitution nor inherent in the federal system, but the logic of the supremacy clause of Article VI--which declares the Constitution and laws made under its authority to be the supreme law of the land--is very strong.
-furthermore, in its Judiciary Act of 1789, Congress conferred on the Supreme Court the power to reverse state constitutions and laws whenever they are clearly in conflict with the U.S. Constitution, federal laws, or treaties
-this power gives the Supreme Court jurisdiction over all the millions of cases handled by the American courts each year
--the history of civil rights protections abounds with examples of state laws that were overturned because the statutes violated the guarantees of due process and equal protection contained in the 14th amendment to the Constitution
---ex: Brown v. Board of Education, the Court overturned statutes in Kansas, SC, VA, and Delaware that either required or permitted segregated schools, on the basis that such statutes denied black schoolchildren equal protection under the law
---ex: Griswold v. Connecticut, the Court invalidated a Connecticut statute prohibiting the general distribution of contraceptives to married couples, on the basis that the statute violated the couples' right to marital privacy
how can judicial review be used in federal agency actions
-although Congress makes the law, it can hardly administer the thousands of programs it has enacted and must delegate power to the president and to a huge bureaucracy to achieve its purposes.
-the issue of delegation of power has led to a number of court decisions over the past 2 centuries, generally involving the question of the scope of the delegation. Courts have also been called on to decide whether the rules and regulations adopted by federal agencies are consistent with Congress's express or implied intent
-generally, Courts give considerable deference to administrative agencies as long as those agencies have engaged in a formal rule-making process and can show that they have carried out the conditions prescribed by the various statutes governing agency rule making.
--these include the 1946 Administrative Procedure Act, which requires agencies to notify parties affected by proposed rules and to allow them amply time to comment of such rules before they go into effect
how can judicial review be used in Presidential Power
-federal courts are also on to review the actions of the president. presidents have increasingly made use of unilateral executive powers rather than relying on congressional legislation to achieve their objectives
-often, presidential orders and actions have been challenged in the federal courts by members of Congress and by individuals and groups opposing the president's policies.
-in recent years, assertions of presidential power in such realms as foreign policy, war and emergency powers, legislative power, and administrative authority have, more often than not, been upheld by the federal bench
how can judicial review be used in lawmaking
-judges have developed a body of rules and principles of interpretation that are not grounded in specific statutes- this body of judge-made law is called common law
How do cases get to the Supreme Court? Original Jurisdiction
The Supreme Court has original jurisdiction in a limited variety of cases defined by the Constitution. It includes (1) cases between the US and one of the 50 states (2) cases between two or more states (3) cases involving foreign ambassadors or other ministers (4) cases brought by one state against citizens of another state of against a foreign country. The most important of these cases are disputes between states over land, water, or old debts. Usually the Supreme Court deals with these cases by appointing a "special master," usually a retired judge, to hear the case and present a report. The Supreme Court then allows the states involved in the dispute to present arguments for or against the master's opinion
How do cases get to the Supreme Court? Rule of Access
-over the years, the courts have developed specific rules that govern which cases within their jurisdiction they will and will not hear. Thus the Court is an institution very much in control of its own agenda, which gives it a lot of independence to follow the preferences of its members. (1) -to have access to the courts, cases must meet certain criteria that are initially applied by the trial court but may be reconsidered by appellate courts. These rules can be broken down into three major categories: case or controversy, standing, mootness
(2) -Article III and past Supreme Court decisions define judicial power as extending only to "cases and controversies." Meaning that the case before the court must be an actual controversy with two truly adversarial parties (called ripeness)
(3) -Parties to a case must also have standing--that is, they must show that they have a substantial stake in the outcome of the case. Traditional requirement for standing has been that one must show injury to oneself; that injury can be personal, economic, or even aesthetic
-mootness, a criterion used by courts to avoid hearing cases that no longer require resolution. Up to courts discretion, which have begun to relax the rules pertaining to this criterion.
--Most likely to accept cases that involve conflicting decisions by the federal circuit courts, cases that present important questions of civil rights or civil liberties, and cases in which the federal government is the appellant
How do cases get to the Supreme Court? writ of certiorari
-most cases reach the Supreme Court through a writ of certiorari--that is an order to a lower court to deliver the records of a particular case to be reviewed for legal errors.
-an individual who loses in a lower federal court of a state court and wants the Supreme Court to review the decision has 90 days to file a petition for a writ of certiorari with the clerk of the Supreme Court
-two types of petitions: paid petitions and petitions in the form of paper.
--paid requires the payment of filing fees, submission of a certain number of copies, and compliance with a variety of other rules
--for in forma pauperis petitions, which are usually filed by prison inmates, the Court waives the fees and most other requirements
-most of the justices have participated in certiorari pool in which their law clerks work together to evaluate the petitions. Each petition is reviewed by one clerk, who writes a memo summarizing the facts and issues and making a recommendation for all the justices participating in the pool. clerks for other justices add their comments to the memo
--after the justices have reviewed the memos, any one of them may place any case on the discuss list, which is circulated by the chief justice.
---if a case isn't placed on the discuss list, it is automatically denied certiorari
---cases on the discuss list are considered and voted on during justices' closed-door conference. for certiorari to be granted, four justices must be convinced that the case satisfies Rule 10 of the Rules of the U.S. Supreme Court--states that certiorari is not a matter or right but is granted only when there are special and compelling reasons
-few cases satisfy this requirement
-the Court has granted certiorari to fewer than 90 petitioners each year--about 1% of those seeking Supreme Court Review
-writ of certification, this can be used when a Court of Appeals asks the Supreme Court for instructions on a point of law that has never been decided
-writ of appeal, which is used to appeal the decision of a 3-judge district court
What does the Solicitor General do?
-the solicitor general is third in status in the Justice Department, but he is the top government lawyer in virtually all cases before the appellate courts in which the government is a party
-he has the greatest control on regulating the flow of cases, with no review of his or her actions by any higher authority in the executive branch
-more than half of the Supreme Court's total workload consists of cases under the direct charge of the solicitor general
-he exercises strong influence by screening cases involving the federal government as a party long before they approach the Supreme Court; indeed, the justices rely on his to "screen out undeserving litigation and furnish them with an agenda to hear government cases that deserve serious consideration"
-agency heads may lobby the president or otherwise try to circumvent the solicitor general, and a few of the independent agencies have a statutory right to make direct appeals, but without the solicitor general's support these are seldom reviewed by the Court
-by writing an amicus curiae "friend of the court" brief, the solicitor general can enter a case even when the federal government is not a direct litigant. A friend of the court is not a direct party to a case but has a vital interest in its outcome. Thus, when the government has such an interest, the solicitor general can file as amicus curiae, or the Court can invite such a brief because it wants an opinion in writing. Other interested parties may file briefs as well
-he can also shape the arguments used before the Court. the Court tends to give special attention to the way the solicitor general characterizes the issues.
-the credibility of the solicitor general is not hurt when several times each year she comes to the Court to withdraw a case with the admission that the government has made an error
the complex structure of offices, tasks, rules, and principles of organization that are employed by all large-scale institutions to coordinate the work of their personnel
the efforts of departments and agencies to translate laws into specific bureaucratic routines
speaker only schedules bills for a vote if they have support from the majority of the majority party
partisan roll rates
percent of the time that the majority party votes against a vote that is passed
A quasi-legislative administrative process that produces regulations by government agencies
The Rule-Making Process is used by Federal Agencies in order to determine how to implement policy
-Implementation of Policy
--published in the Federal Register
-decision to either make or update regulation
1. proposed rule
2. Public Comment Period (period of time after they published the proposal rule that the public can comment on how they feel about proposal rule)
3. Final Rule
--examples of Rules that have been implemented by Federal Agencies in order to execute rules passed by Congress:
---Taco Bell beef has to be made up by at least 70% beef
---The amount of peanuts that have to been in peanut butter in order to be considered peanut butter
the application of rules and precedents to specific cases to settle disputes with regulated parties
-15 cabinet departments
--appointed by the president
--allocated overtime by legislation produced in Congress to help delegate the role of implementing and interpreting policy
(---Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Homeland Security, Housing and Urban Development, Interior, Justice, Labor, State, Transportation, Treasury, and Veteran Affairs)
--under control of the Executive Branch (President)
--President can appoint a leader to a department and can ask a leader to step down
-workers in bureaucracy are civil service workers who are good at what they do, they are there from president to president terms , and they aren't nominated by the government
-is set up by Congress outside the departmental structure altogether where the president still appoints and directs the heads of these types of agencies
-usually have broad powers to provide public services that are either too expensive or too important to be left to private initiatives
a 3rd type of government agency that are more like private businesses performing and charging for a market service
ex: Post Office, Amtrak
independent regulatory commissions
given broad discretion to make rules
-Congress recognized that regulatory agencies are mini legislatures, whose rules and rulings are the same as legislation and legislative interpretation but require the kind of expertise and full-time attention that is beyond the capacity of Congress.
a department or bureau of government whose mission is to promote, serve, or represent a particular interest
a department, bureau, or independent agency whose primary mission is to eliminate or restrict certain behaviors defined as negative in themselves or negative in their consequences
-rules made by regulatory agencies and commissions
policies that regulate the economy through taxing and spending powers
policies to regulate the economy through manipulation of the supply of money, the price of money (interest rate), and the availability of credit. America's most powerful institution in this area of monetary policy is the Federal Reserve Board
Federal Reserve System
a system of 12 Federal Reserve Banks that facilitates exchanges of cash, checks, and credit; regulates member banks; and uses monetary policies to fight inflation and deflation
the oft-observed phenomenon of bureaucratic implementation that produces policy more to the liking of the bureaucracy than faithful to the original intention of the legislation that created it, but without triggering a political reaction from elected officials
the prospect that enacted policy will change because the composition of the enacting coalition is temporary and provisional
the effort by Congress, through hearings, investigations, and other techniques, to exercise control over the activities of executive agencies
-Members of Congress do not initiative investigations but wait for adversely affected citizens or interest groups to bring bureaucratic perversions of legislative intent to the attention of the relevant congressional committee.
-To make sure that the individuals and groups bring these violations to members' attention--to set off the fire alarm--Congress passes laws that help individuals and groups make claims against the bureaucracy, granting them legal standing before administrative agencies and federal courts
-This is more efficient than the police-patrol variety, given costs and the electoral incentives of members of Congress. Members can conserve their resources then claim credit for fixing the problem and saving the say after the fire alarms have been sounded
-Congress systematically initiates investigation into the activity of agencies.
-Less effective than fire-alarm--Why should members spend their scare resources (time) to initiate investigations without having any evidence that they will reap electoral rewards?
-Can waste taxpayers' dollars because many investigations will not turn up any evidence of violations of legislative intent
the policy of reducing or eliminating regulatory restraints on the conduct of individuals or private institutions
the policy of removing a program from one level of government by deregulating it or passing it down to a lower level, such as from the national government to the state and local governments
the amount of liquid assets and ready cash that banks are required to hold to meet depositors' demands for their money
the method by which the Open Market Committee of the Federal Reserve System buys and sells government securities, etc., to help finance government operations and to reduce or increase the total amount of money circulating in the economy
federal funds rate,
the rate charged on overnight loans between banks in order to maintain the reserve requirement. The Fed can increase or decrease the rate to manipulate the economy.
the total amount of credit through the interest the Fed charges on the loans it extends to member banks
federal spending that is made up of "uncontrollables," budget items that cannot be controlled through the regular budget process
a budgetary item that is beyond the control of the budgetary committees and can be controlled only by substantive legislative action in Congress. Some uncontrollables, such as interest on the debt, are beyond the power of Congress, because the terms of payments are set in contracts
federal spending on programs that are controlled through the regular budget process
the amount by which government spending exceeds government revenue in a fiscal year
a tax on imported goods
taxation that hits upper income brackets more heavily
taxation that hits lower income brackets more heavily
a policy whose objective is to tax or spend in such a way as to reduce the disparities between the lowest and the highest income brackets
the existence of a single firm in a market that controls all the goods and services of that market; absence of competition
government regulation of large businesses that have established monopolies
the branch of law the deals with disputes or actions involving criminal penalties
a system of jurisprudence, including private law and governmental actions, for settling disputes that do not involve criminal penalties
cases involving the action of public agencies or officials
literally, "let the decision stand." the doctrine whereby a previous decision by a court applies as a precedent in similar cases until that decision is overruled
prior cases whose principles are used by judges s the bases for their decisions in present cases
the first court to hear a criminal or civil court
a court that hears the appeals of trial-court decisions
the highest court in a particular state or in the United States. This court primarily serves an appellate function
the domain over which an institution or member of an institution has authority
the class of cases provided in the Constitution and by legislation that may be appealed to a higher court from a lower court
the class of cases provided in the Constitution (Article III) that may be taken directly to a federal court
the practice whereby the president, before formally nominating a person for a federal district judgeship, finds out whether the senators from the candidate's state support the nomination
Writ of certiorari
a formal request by an appellant to have the Supreme Court review a decision of a lower court. Certiorari is from a Latin word meaning "to make more certain."
"friend of the court," an individual or group that is not party to a lawsuit but seeks to assist the court in reaching a decision by presenting an additional brief
the written explanation of the Supreme Court's decision in a particular case
an opinion agreeing with the decision of the majority but not with the rationale provided in the majority opinion
a decision written by a justice who voted with the minority opinion in a particular case in which the justice fully explains the reasoning behind his or her opinion
Rule of four
the rule that certiorari will be granted only if four justices vote in favor of the petition
the right of an individual or an organization to initiate a court case
a case that is ready for litigation and does not depend upon hypothetical future events
a criterion used by courts to avoid hearing cases that no longer require resolution
a lawsuit in which a large number of persons with common interests join together under a representative party to bring or defend a lawsuit, as when hundreds of workers join together to sue a company
-Government bureaucracies implement the decisions made by the political process
-they are routine in order to make sure that the services are delivered regularly and that each agency fulfills its mandate
-they are a reflection of political deals consummated by elected politicians, turf wars among government agents and private-sector suppliers and contractors, policy-delivery successes and failures in they eyes of the public, and reactions to these by the very same elected officials who cut the deals in the first place
Why is a public bureaucracy powerful?
-because legislatures and chief executives, along with the people, delegate to them vast power to make sure a particular job is done, enabling the rest of us to be freer to pursue our private ends
Ex: of how public bureaucracy is delegated power
-after 9/11, when faced with the challenge of making air travel safe again, the public strongly supported giving the federal government responsibility to airport security even though this meant increasing the size of the federal bureaucracy in order to make the security screeners federal workers.
-maintaing order in a large society is impossible without some sort of large government apparatus, staffed by professionals with some expertise in public administration
-bureaucracy refers to the actual offices, tasks, and principles of organization that are employed by large institutions to coordinate their work.
the core of bureaucracy is
the division of labor
the key to bureaucratic effectives is
the coordination of experts performing complex tasks.
-if each job is specialized to gain efficiencies, then each worker must depend on the output of other works, and that dependence requires careful allocation of jobs and resources
-hierarchical, often approximating a pyramid in form
-at the base of the organization are workers with the fewest skills and specializations; one supervisor can deal with a relatively large number of these workers
-at the next level of the organization, where there are more highly specialized workers, the supervision and coordination of work involves fewer workers per supervisor.
-toward the top of the organization, a very small number of high-level executives engages in the "management" of the organization, meaning the organization and reorganization of all the tasks and functions, plus the allocation of the appropriate supplies and the distribution of the output of the organization to the market or to the public
bureaucracies allow government to operate:
Bureaucracies accomplish tasks and missions in a manner that would otherwise be unimaginable by:
-dividing up tasks
-matching tasks to a labor force that develops appropriately specialized skills
-and providing the incentive structure and oversight arrangements to get large numbers of people to operate in a coordinate, purposeful fashion
bureaucracy also consolidates a range of complementary programs and insulates them from the predatory ambitions of out-of-sympathy political forces:
-by creating clienteles--in the legislature, the world of interest groups, and public opinion--a bureaucracy establishes a coalition of supporters, some of whom will fight to the end to keep it in place.
-in principle, bureaucratic agents are servants of elected politicians. They are charged with implementing statues and policies produced by their masters, the elected politicians in the White House and on Capitol Hill. But the relative permanence enjoyed by bureaucracy is a form of insulation--servants have discretion and masters are limited in their ability to control them.
-elected officials who might want to steer a bureaucracy in a different direction often find the obstacles substantial, so only those with intense concern for the jurisdiction are likely to persist in their efforts to guide it.
-Thus bureaucratic agents are most affected by legislators with extraordinary interest in that bureaucracy's mission
bureaucracies allow government to operate with efficiency and credibility:
the creation of a bureau is a way to deliver government goods efficiently, and it is a device to tie one's hands, thereby providing a credible commitment to the long-term existence of a policy
Bureaucrats implement laws
-bureaucrats communicate with each other to coordinate all the specializations within their organization
-this coordination is necessary to carry out the primary tasks of bureaucracy, which is implementation
-implementation is implementing the objectives of the organization as laid down by its board of directors (if a private company) or by law (if a public agency).
-In government, the bosses are ultimately the legislature and the elected chief executive
-we can argue that legislative principals establish bureaucratic agents--in departments, bureaus, agencies, institutes, and commissions of the federal government--to implement the policies promulgated by Congress and the president
Bureaucrats make and enforce rules
-when the bosses (Congress) are clear in their instructions to bureaucrats, implementation is a fairly straightforward process. Bureaucrats translate the law into specific routines for each employee of an agency
-if the agent of multiple principals disagrees, the agent much chart a delicate course, seeking to do the best he or she can and trying not to offend any of the bosses too much.
--This requires another job for bureaucrats: Interpretation
-when bureaucrats have to interpret a law before implementing it, they are in effect engaging in lawmaking
-Congress often deliberately delegates to an administrative agency the responsibility of law making
-Members of Congress often conclude that some area of industry needs regulating or some area of the environment needs protection, but they are unwilling or unable to specify just how that should be done
-In such situations, Congress delegates to the appropriate agency a broad authority within which the bureaucrats have to make law, through the procedures of rule making and administrative adjudication
-interpretation is a form of implementation in that the bureaucrats have to carry out what they believe to be the intentions of their superiors
is essentially the same as legislation; it is often referred to as quasi-legislation.
-the rules issued by government agencies provide more detailed and specific indications of what a policy will actually mean
-new rules proposed by an agency take effect only after a period of public comment. Reaction from the people or businesses that are subject to the rules may cause an agency to modify the rules they first issue
-public participation takes the form of filing statements and giving testimony in public forums devoted to eliciting public opinion from interested parties. this occurs after a draft rule or regulation is announced but before it becomes official, giving the opportunity to revise its draft
-once rules are approved, they are published in the Federal Register and have the force of law
Ex: the Forest Service is charged with making policies that govern the use of national forests. Just before Clinton left office, the agency issued rules that banned new road building and development in the forest. This was a goal that was long sought by environmentalists and conservationists. In 2005, the Forest Service relaxed the rules, allowing states to make proposals for building new roads within the national forests. Just as the timber industry opposed the Clinton rule banning road building, environmentalists have challenged the new ruling and have sued the Forest Service in federal court for violating clean-water and endangered species legislation
bureaucrats settle disputes
-administrative adjudication is very similar to what the judiciary ordinarily does: apply rules and precedents to specific cases to settle disputes
-in administrative adjudication, the agency charges the person or business suspected of violating the law.
-the ruling in an adjudication dispute applies only to the SPECIFIC CASE BEING CONSIDERED
-many regulatory agencies use administrative adjudication to make decisions about specific products or practices
Ex of administrative adjudication:
-the National Labor Relations Board uses case-by-case administrative adjudication to decide union certification.
-Groups of workers seek the right to vote on the formation of a union or the right to affiliate with an existing union as their bargaining agent and are opposed by their employers, who assert that relevant provisions of labor law do not apply
-the NLRB takes testimony case by case, considers evidence, and makes determinations for one side or the other, acting essentially like a court
Bureaucrats in government do essentially the same things that bureaucrats in large private organizations do but...:
-but because of the authoritative, coercive nature of government, far more constraints are imposed on public bureaucrats than on private bureaucrats, even when their jobs are the same
-public bureaucrats are required to maintain a far more thorough paper trail
-they are also subject to a great deal more access by the public--newspaper reporters, for example, have access to public bureaucrats
-- public access has been vastly facilitated in the past half century- the adoption of the Freedom of Information Act (FOIA)
Freedom of Information Act (FOIA)
in 1966 gave ordinary citizens the right of access to agency files and agency data so that they might determine whether those files and data contain derogatory information about them and learn what the agency is doing in general
3 reasons for why bureaucracy
1. bureaucracies enhance efficiency
2. they are instruments of policy implementation
3. legislatures find it valuable to delegate
bureaucracies serve politicians
-legislatures find it valuable to delegate
-in principal, the legislature could make all bureaucratic decisions itself, writing very detailed legislation each year. In some jurisdictions--tax policy, for example, that is done.
-the norm is for statutory authority to be delegated to the bureaucracy, sometimes with specificity but often in relatively vague terms. the bureaucracy is expected to fill in the gaps
--this however isn't a blank check to exercise unconstrained discretion. the bureaucracy will be held to account by the legislature's oversight of bureaucratic performance through monitoring by the staffs of relevant legislative committees, which also serve as repositories for complaints from affected parties
--poor performance of the exercise of discretion inconsistent with the preferences of important legislators invites sanctions ranging from the browbeating of senior bureaucrats to the trimming of budgets and the clipping of authority
challenge in bureaucracies
-keeping the government bureaucracy accountable to elected political authorities
-slow to change
-confusion over jurisdictional authority
Agencies of Redistribution
-welfare, fiscal, and monetary agencies are responsible for the transfer of hundreds of billions of dollars annually between the public and the private spheres, and through such transfers these agencies influence how people and corporations spend and invest trillions of dollars annually.
-they are called agencies of redistribution because they influence the amount of money in the economy and because they directly influence who has money, who has credit, and whether people will want to invest or save their money rather than spend it
Fiscal Policy Agencies
-government activity affecting or relating to money may be partitioned into fiscal and monetary policy.
-fiscal policy includes taxing and spending activities
-administration of fiscal policy is primarily performed in the Treasury Department.
-it is no contradiction to include the Treasury here and with agencies for maintenance of the Union. This duplication indicates (1) that the Treasury is a complex department, performing more than one function of government and (2) that traditional controls have had to be adapted to modern economic conditions and new technologies
-today, in addition to administering and policing income tax and other tax collections, the Treasury is responsible for managing the enormous federal debt.
Monetary Policy Agencies
-Monetary policy focuses on banks, credit, and currency
-The Treasury Department also prints the currency that we use. Most of the trillions of dollars used in the transactions that makeup the private and public sectors of the American economy exist on printed accounts and computers, not in currency
Another important thing in monetary policy agency is the Federal Reserve System
-it is headed by the Federal Reserve Board
-it has authority over the credit rates and lending activities of the nation's most important banks
-established by Congress in 1913, the Fed is responsisble for adjusting the supply of money to both the needs of banks in the different regions and the commerce and industry in each.
-it also ensures that banks do not overextend themselves by adopting policies that are too liberal. the basis for this responsibility is the fear that if there is a sudden economic scare, a run on a few banks might be contagious and cause another terrible crash like the one in 1929
-the Federal Reserve Board sits at the top of the pyramid of 12 district Federal Reserve Banks, which are "bankers' banks," serving the monetary needs of the hundreds of members banks in the national bank system.
-information and coordination of the nation's finances are provided by the Office of Management and Budget (OMB) in the White House and the Congressional Budget Office (CBO), an arm of the two legislative chambers.
organizes the president's budget and plays a coordinating role in clearing spending and regulatory decisions
plays primarily an informational role, providing the legislative chambers and their committees with an assessment of budgetary proposal and conducting long-range forecasts of different budget, spending, and tax policies
-no single government agency is responsibly for all the programs making up the "welfare state"
-the largest agency in the field is the Social Security Administration (SSA), which manages the social insurance aspects of Social Security and Supplemental Security Income (SSI).
-these include massive expenditures that finance monthly Social Security checks for retirees, as well as payments to the disabled, the unemployed, and etc.
--they are funded by payroll taxes levied on employees and employers.
---as the baby-boom generation ages, a growing bloc of voters have become concerned about the solvency of this system. many argue that w/o some adjustments in benefit schedules, taxes, or retirement age, the present population will begin drawing down the enormous amount of funds in the Social Security Trust Fund in 2 decades and exhaust it in 40 years
-agencies in the Department of Health and Human Services administer Temporary Assistance to Needy Families (TANF) and Medicaid, and the Department of Agriculture is responsible for the Food Stamp Program
--with the exception of Social Security, these are means-tested programs, requiring applicants to demonstrate that their total annual cash earning fall below an officially defined poverty line.
The President as Manager-in-Chief
-In 1937, FDR needed help. the national government had grown rapidly during the preceding 25 years, but the structures and procedures necessary to manage the burgeoning executive branch hadn't been established
-3 management policies:
1. all communications and decisions that related to executive policy decisions must pass through the White House
2. to cope with such a flow, the White House must have an adequate staff of specialists in research, analysis, legislative and legal writing, and public affairs
3. the White House must have additional staff to follow through on presidential decisions--to ensure that those decisions are made, communicated to Congress, and carried out by the appropriate agency
Congress delegates power to executive agencies
-Congress is constitutionally essential to responsible bureaucracy because the key to governmental responsibility is legislation
-When a law is passed and its intent is clear, then the president knows what to "faithfully execute," and the responsible agency understands what is expected of it
-in modern days, legislatures rarely make laws directly for citizens; most laws are really instructions to bureaucrats and their agencies
-but when Congress enacts vague legislation, agencies must rely on their own interpretations. The president and federal courts step in to tell them what the legislation intended. and so do intensely interested organized groups.
-the more legislative power Congress delegated to the executive bureaucracy, the more it has sought to get back into the game through committee and subcommittee oversight of the agencies.
-the standing committee system in Congress is well suited for oversight, inasmuch as most of the congressional committees and subcommittees are organized with jurisdictions roughly parallel to one or more executive departments or agencies
-appropriations committees as well as authorization committees have oversight powers, as well as their subcommittees.
-in addition to these, there is a committee on government operations in both the House and Senate, each with oversight powers not limited by departmental jurisdiction
How Congress implements oversight
1. (Best Indication): holding of public hearings, before which bureaucrats and other witnesses are summoned to discuss and defend agency budgets and decisions
2. use of congressional staff to monitor
1.. (Most Effective and Influential): power of the purse--the ability of the House and Senate committees and subcommittees on appropriations to look at agency performance through the microscope of the annual appropriations process. (control the budget)
--this process makes bureaucrats attentive to Congress, especially members of the relevant authorizing committee and appropriations subcommittee, because they know that Congress has a chance each year to reduce their authority or funding
2. establish law that further clarifies
3. elimination/reorganization of agencies
how executive branch implements oversight
Accountability to President:
-Appointments by the President
--the president can control these agencies by controlling the leaders of the agencies
--President and Congress determine how much money is allocated to these agencies and how the money should be spent
--President can reorganize the agency depending on how the agency was created by Congress.
---if Congress was specific on how it was to be reorganized President might have challenges to reorganize
---if Congress was more vague President can reorganize
how oversight is done
-oversight can be carried out by individual members of Congress. such inquiries addressed to bureaucrats are considered standard congressional "case work" and can turn up significant questions of public responsibility even when the motive is only to meet the demand of an individual constituent.
-oversight often takes place through communication between congressional staff and agency staff
-Congress created for itself 3 agencies whose obligations are to engage in constant research on problems taking place in the executive branch: (1) the Government Accountability Office, (2) the Congressional Research Service, (3) the Congressional Budget Office. Each is designed to give Congress information independent of the information it can get through hearings and other communications directly with the executive branch
Some people think Congress gives unelected bureaucrats too much discretion and also delegates too much policy-making authority to them
-Congress has transferred so much power it has created a "runaway bureaucracy" in which unelected officials accountable neither to the electorate nor to Congress make important policy decisions.
-by enacting vague statutes that give bureaucrats broad discretion, so the argument goes, members of Congress effectively abdicate their constitutionally designated roles and effectively remove themselves from the policy-making process
-ultimately, this extreme delegation has left the legislative branch weak and ineffectual and has dire consequences for the health of our democracy
some people claim that even though Congress may possess the tools to engage in effective oversight, it fails to use them. However, McCubbins and Schwartz argue that these critics missed a type of oversight that benefits members of Congress in their bids for re-election. Two types of oversight:
(1) police control
(2) fire alarm
Bureaucratic drift might be contained if Congress spent more if its time clarifying its legislative intent and less of its time on oversight activity
-if its original intent in the law were clearer, Congress could then afford to defer to presidential management to maintain bureaucratic responsibility.
-but when Congress and the president are at odds (or coalitions within Congress are at odds), bureaucrats have an opportunity to evade responsibility by playing one side against the other
-monetary policies manipulate the growth of the entire economy by controlling the availability of money to banks
-with a very few exceptions, banks in the US are privately owned and locally operated. until well into the 20th century, banks were regulated, if at all, by state legislatures. each bank was granted a charter, giving it permission to make loans, hold deposits, and make investments within that state.
-- these banks are less important now because the most important banks are now members of the federal banking system
-Federal Reserve System and the Fed
-includes the government's taxing and spending powers.
-on the tax side of the ledger, personal and corporate income taxes raise most of the U.S. government's revenues
-direct purpose of tax is to raise revenue
-each tax has a different impact on the economy, and government can attempt to plan for that impact--Ex: Bush Tax Cuts
-the administration of the revenue side of fiscal policy occurs primarily in the Treasury Departments. In addition to collecting income, corporate, and other taxes, the Treasury also manages the enormous debt
Fiscal Policy: debt
-debt is not simply something the country owes; it is something a country has to manage and administer.
-it is also a fiscal instrument in the hands of the federal government that can be used--through manipulation of interest rates and through the buying and selling of government bonds--to slow down or to speed up the activity of the entire national economy, as well as to defend the value of the dollar in international trade
-how do we borrow so much money? treasury bonds
--sold to investors
--promise to pay the loan plus interest
--very low interest rates
Fiscal Policy: taxation
-during 19th century, the federal government relied on its revenue for a single tax, the tariff. it also relied on excise taxes, which are taxes levied on specific products.
-most important source of revenue is the income tax through the 16 amendment
--the income tax is levied on individuals as well as corporations
-with the creation of the Social Security System in 1935, social insurance taxes become an additional source of federal revenue
Fiscal Policy: Income Tax
-most important source of revenue
-it is a progressive, or graduated, tax, with the heaviest burden carried by those most able to pay
-primary purpose of graduated income tax is to raise revenue
-an important second objective may be to collect revenue in such a way as to reduce disparities of wealth between the lowest and highest income bracket---this is called policy of redistribution
-also another policy objective of the income tax is the encouragement of the capitalist economy by rewarding investment.
-- the tax laws allow individuals or companies to deduct from their taxable income any money they can justify as an investment or a "business expense," this gives an incentive to individuals and companies to spend money to expand their production, their advertising, or their staff, and reduces the income taxes businesses have to pay
---these kind of deductions are called incentives or "equity" by those who support them, others call them "loopholes"
----loopholes are closed but still exist, and others will return, because there is a strong consensus among Congress, both Democrats and Republicans, that businesses often need such incentives. the differences between the two parties focus largely on which incentives are justifiable
-a tax is called progressive if the rate of taxation goes up with each higher income bracket
-a tax is called regressive if people in lower income brackets pay a higher proportion of their income toward the tax than people in higher income brackets
--ex: a sales tax is deemed regressive because everybody pays at the same rate, so that the proportion of total income paid in taxes goes down as the total income goes up
marginal tax rates are based on taxable income
-income minus deductions, etc..
-not total amount of income
Marginal Tax Rates
only apply to income that falls into that bracket (not what is below it or above it)
Fiscal Policy to stimulate the economy
Bush's tax cuts
-promote investment by reducing taxes on most stock dividends, to spur business activity by offering tax breaks to small businesses, and to stimulate the economy by reducing the tax rates for all tax payers
Obama's stimulus package
-stimulate the economy by huge amounts of federal spending to get more more flowing into the economy
Bush Tax Cuts
-Bush's plan was intended to promote investment by reducing taxes on most stock dividends, to spur business activity by offering tax breaks to small businesses, and to stimulate the economy by reducing the tax rates for all tax payers
-in 2006, Congress extended the rate reductions on dividends and capital gains.
-Bust Tax Cuts were criticized, Many Democrats argued:
--the tax cuts were simply a giveaway to the wealthy and to corporations that did nothing to promote growth
--they are partly responsible for the large federal deficits: the federal budged moved from running surpluses in 2000 to steep deficits throughout the next decade
Obamas Stimulus Package
-2008 and 2009
-stimulate economy by federal government spending
--open-market operations: government buys government securities in order to stimulate economy by increasing money supply
--lowered discharge rate and federal funds rate and the reserve requirements to stimulate economy (all time low)
-American Recovery and Reinvestment Act (1 trillion dollars)
Fiscal Policy: Spending and Budgeting
-the federal government's power to spend is one of the most important tools of economic policy
-decisions about how much to spend affect the overall health of the economy
-decisions about spending are made as part as the annual budget process
-structural problems of US Fiscal Policy- preferences for government activity and the institutional ways of arriving at spending decisions are the root causes of the policies that emerge. in effect, rationality, institutions, and policy are out of synch
Fiscal Policy: Spending and Budgeting:: the 1st institutional problem
(1) we separate taxing and spending decisions
--tax policy falls to the Senate Finance and House Ways and Means committees, and is administered by the Department of Treasury
--spending decisions are made by authorizing and appropriating committees in the two chambers and are administered by line agencies in the federal bureaucracy
Fiscal Policy: Institutions and Policies
-the budget process involves both the president and Congress.
-each branch has created institutions and procedures designed to fulfill its budgetary responsibilities and to assert control over the budget process
-each branch has sought to expand the jurisdiction of its budgetary institution and to use its institutions to enhance its own agenda and veto power over the budget
-the president and Congress use their budget institutions to promote their own budgetary preferences and priorities
the president uses his budget institutions to promote his own budgetary preferences and priorities
--the Office of Management and Budget (OMB) and the Executive Office of the President is responsible for preparing the president's budget
---this budget contains the presidents spending priorities and the estimated costs of the president's policy proposals. ----It is viewed as the starting point for the annual debate over the budget.
----when different parties control the presidency and Congress, the president's budget may have little influence on the budget that is ultimately adopted.
Congress uses its budget institutions to promote its own budgetary preferences and priorities
-Congress has its own budget institutions
-Congress created the Congressional Budget Office (CBO) in 1974 so that it could have reliable information about the costs and economic impact of the policies it considers
-At the same time, Congress created a budget process designed to establish spending priorities and to consider individual expenditures in light of the entire budget
--A key element of this process is the annual budget resolution, which designates broad targets for spending
--by estimating the costs of policy proposals, Congress hoped to control spending to reduce deficits.
---when the congressional budget process proved unable to hold down deficits in the 1980s, Congress established stricter measures to control spending, including spending caps that limit spending on some types of programs. Even these restrictions have proven ineffective
-Why are they ineffective?
--when actual spending bills arrive on the legislative floor in violation of spending caps, appropriators seek, and often are granted, waivers of the restriction, permitting the out-of-compliance measure to be taken up
--it is evident that small tweaks to the spending process are not up to the tasks
primary sources of revenue
Congress and Mandatory Spending
-a very large and growing proportion of the annual federal budget is mandatory spending, expenditures that are, in the words of the OMB, "relatively uncontrollable."
--ex: interest payments on the national debt, are determined by the actual size of the national debt
--legislation has mandated payment rates for such programs as retirement under Social Security, retirement for federal employees, unemployment assistance, Medicare, and farm price supports.
---these payments increase with the cost of living, they increase as the average age of the population goes up, they increase as the national and world agricultural surpluses go up
----this means that the national government now has very little discretionary spending, which would allow it to counteract fluctuations in the business cycle
Government spending as fiscal policy:
-works fairly well when deliberate deficit spending is used to stop a recession and to speed up the recovery period
-doesn't work very well in fighting inflation of deficits, because elected politicians are politically unable to make the drastic expenditure cuts necessary to balance the budget, much less to produce a budgetary surplus
Economic Regulation and Antitrust Policy
-Americans have long been suspicious of concentrations of economic power
-federal economic regulation aims to protect the public against potential abuses by concentrated economic power in two ways:
-(1) the federal government can establish conditions that govern the operation of big businesses to ensure fair competition
--ex: it can require businesses to make information about its activities and account books available to the public
-(2) the federal government can force a large business to break up into smaller companies if it finds that the company has established a monopoly--this is called the Antitrust Policy
-social regulation establishes conditions on businesses in order to protect workers, the environment, and consumers
-federal regulatory policy was a reaction to public demands during the 19th century when companies were growing so large they were recognized as possessing "market power," this means that they were powerful enough to eliminate competitors and to impose conditions on consumers rather than catering to consumer demand
-if markets were national and commerce interstate, there would have to be national regulation
-the first national regulatory policy was the Interstate Commerce Act of 1887, which created the first national independent regulatory commission, the Interstate Commerce Commission (ICC), designed to control the monopolistic practices of the railroads.
-2 years later, the Sherman Antitrust Act extended regulatory power to cover all monopolistic practices, including "trusts" or any other agreement between companies to eliminate competition
-these were strengthened in 1914 with the enactment of the Federal Trade Act (creating the Federal Trade Commission--FTC) and the Clayton Act
-the only significant addition of economic regulatory policy beyond regulation of interstate trade, however, was the establishment of the Federal Reserve System in 1913
Purpose of Courts:
-settle disputes by using an impartial arbiter
-when laws must be enforced, justice requires an impartial judge to determine guilt and innocence, and, if the accused is found guilty, the appropriate punishment
-when questions arise about the meaning of those laws, we rely on the wisdom of judges to interpret what Congress meant and how that meaning applies in a given circumstance
Distinctive features of the American judiciary:
(1) -its independence
--the Constitution of the United States, set up the courts as a separate entity from the legislature, the executive, and the states, and insulated it from electoral politics
(2)- authority among the courts is hierarchical
--federal courts are able to overturn state courts, and the U.S. Supreme Court as the ultimate authority
(3)- the US Supreme Court and other federal courts of appeals can strike down actions of Congress, the president, or the states if the judges deem those acts to be violations to the Constitution
--this authority to find government actions unconstitutional is the power of judicial review
(4)- federal judges are appointed for life by the president with confirmation by majority of the Senate
--federal judges are not subject to the pressures of running for re-election and need not be highly responsive to changes in public opinion
The real power of courts:
-emanates from their ability to interpret the meaning of the laws in a way that society accepts
-courts are powerful to the extent that the people and groups involved accept the decrees that judges issue
-the decree of any one judge in any single case may not seem important, but each decision or settlement in a court is an act of lawmaking, a function as important as the passage of a statute by the legislature
-any one decision may serve as a precedent or guide for deciding a future case, and the accumulation of many such decisions, accepted by common practice, eventually becomes the norm
-consists of all past agreements that we accept when we reach any decision.
-The Supreme Court is constrained by decisions it has made in the past.
--When a majority of justices have issued an opinion interpreting the law a particular way, that opinion has the standing of precedent and constrains future courts.
--If the judges themselves were to ignore precedent, they would undercut the power of the courts and their own authority
Precedents limit the power of the independent judiciary, but the past does not render the courts importent
-in any decision, a judge is both constrained by the past and contributing to the future meaning of the law
-usually, the influence of the courts on American politics is incremental and difficult to discern. At time, however, courts have made sweeping changes in the country's law and politics.
--ex: with industrialization in the late 19th century came new ideas about the enforcement of contracts that dominated the thinking of courts. The New Deal eventually won the support of the Supreme Court and with that a new acceptance of the role of government in the economy and society.
Courts are fundamentally political
-just like the presidents and legislators, judges have preferences about what the government should do, and they use their powers to interpret, apply, and review laws to shape public policy
-judges are also constrained by the institutional setting within which they operate. They are mindful that others in the political process may try to alter or undo a court's ruling
Court cases in the United States proceed under two broad categories of law:
cases of criminal law
-are those in which the government charges an individual with violating a statute that has been enacted to protect public health, safety, morals, or welfare.
-the government is always the plaintiff (the party that brings the charges) and alleges that a criminal violation has been committed by a named defendant.
-most criminal cases arise in state and municipal courts and involve matters ranging from traffic offenses to robbery and murder
-although the great bulk of criminal law is still a state matter, a large growing body of federal criminal law deals with such matters as tax evasion, mail fraud, and the sale of narcotics.
-Defendants found guilty of criminal violations may be fined or sent to prison
cases of civil law
-involve disputes between individuals or between individuals and the government where no criminal violation is charged
-unlike criminal cases, the losers in civil cases cannot be fined or sent to prison, although they may be required to pay monetary damages for their actions
-in a civil case, the one who brings a complaint is the plaintiff and the one against whom whom the complaint is brought is the defendant
-two most common types of civil cases involve contracts and torts
--in a typical contract case, an individual or corporation charges that it has suffered because of another's violation of a specific agreement between the two
---ex: the Smite Company may charge that the Jones Distributors failed to honor an agreement to deliver raw materials at a specified time, causing Smite to lose business. Smite asks the court to order Jones to compensate it for the damage allegedly suffered
--in a typical tort case, one individual charges that he or she has been injured by another's negligence or malfeasance.
---ex: medical malpractice suits
in deciding cases, courts:
-apply statutes (laws) and legal precedents (prior decisions).
-state and federal statutes often govern the conditions under which contracts are and are not legally binding.
--ex: Jones Distributors may argue that it was not obliged to fulfill its contract with Smite Company because actions by Smite--the failure to make promised payments--constituted fraud under state law
--ex: attorneys for a physician being sued for malpractice, on the other hand, may search for prior instances in which courts ruled that actions similar to those of their client did not constitute negligence. Such precedents are applied under the doctrine of stare decisis, a Latin Phrase meaning "the the decision stand"
cases of Public law
-when a plaintiff or defendant in a civil or criminal case seeks to show that his case involves the powers of government or the rights of citizens defined under the Constitution or by statute.
--one major form of public law is constitutional law, under which a court will examine the government's actions to see if they conform to the Constitution as it has been interpreted by the judiciary
---ex: what began as an normal criminal case may enter the realm of public law if a defendant claims that her constitutional rights were violated by the police
--another major form of public law is administrative law, which involves disputes over the jurisdiction, procedures, or authority of administrative agencies.
ex: under this type of law, civil litigation between an individual and the government may become a matter of public law if the individual asserts that the government is violating a statute or abusing its power under the Constitution
The Supreme Court's Procedures: the preparation
-Supreme Courts decision to accept a case is the beginning of what can be a lengthy and complex process.
--1st, the attorneys on both sides must prepare briefs--written documents in which the attorneys explain why the Court should rule in favor of their client
--the document filed by the individual bringing the case is called the "petitioner's brief"--it summarizes the facts of the case and presents the legal basis on which the Supreme Court is being asked to overturn the lower court's decision
--the document filed by the side that prevailed in the lower court is called the respondent's brief--it explains why the Supreme Court should affirm the lower court's verdict.
--the petitioners then file a brief answering and attempting to refute the points made in the respondent's brief-- this is called the petitioner's reply brief
-briefs are filled with references to precedents specifically chosen to show that other courts have frequently ruled in the same way that the Supreme Court is being asked to rule
-as attorneys prepare for their briefs, they often ask sympathetic interest groups for their help by means of amicus curiae briefs
The Supreme Court's Procedures: Oral argument
-the next stage of a case is oral argument, in which attorneys for both sides appear before the Court to present their positions and answer the justices' questions.
-Each attorney has only a half hour to present his case, and this time includes interruptions for questions
-oral arguments can be very important to the outcome of the case because it allows justices to better understand the heart of a case and raise questions that might not have been addressed in the opposing sides' briefs
The Supreme Court's Procedures: The Conference
-after oral argument, the Court discusses the case in its Wednesday or Friday conference.
-the chief justice presides over the conference and speaks first; the other justices follow in order of seniority.
-the Court's conferences are secret, and no outsiders are permitted to attend.
-these justices reach a decision on the basis of majority vote
The Supreme Court's Procedures: Voting on the merits of the case
-majority is 5 out of 9 justices
--can either overturn lower courts ruling
-- or can uphold lower courts ruling
The Supreme Court's Procedures: Opinion Writing
-after a decision has been reached, one of the members of the majority is assigned to write the opinion. This assignment is made by the chief justice is or the most senior justice in the majority if the chief justice is on the losing side.
-the assignment of the opinion can make a significant difference to the interpretation of a decision, as its wording and emphasis can have important implications for future litigation.
-thus in assigning an opinion, the justices must give serious thought to the impression the case will make on lawyers and the public, as well as to the probability that one justice's opinion will be more widely accepted than others
-once the majority opinion is drafted, it is circulated to the other justices. Some members of the majority may agree with both the outcome and the rationale but wish to emphasize or highlight a particular point and so draft a concurring opinion, called a regular concurrence
-in other instances, one of more justices may agree with the majority but disagree with the rationale presented in the majority opinion. then the justices may draft a special concurrence, explaining their disagreements with the majority.
--the pattern of opinions that emerge on a case ultimately depends on bargaining among the justicse
The Supreme Court's Procedures: Dissent
-justices who disagree with the majority decision of the Court may choose to publicize the character of their disagreement in the form of a dissenting opinion.
-The dissenting opinion is generally assigned by the senior justice among the dissenters.
-dissents can be used to signal defeated political forces in the nation that their position is supported by at least some members of the Court
-Ironically, the most dependable way an individual justice can exercise a direct and clear influence on the Court is to write a dissent
-because there is no need to please a majority, dissenting opinions can be more eloquent and less guarded than majority opinions.
-the current Supreme Court often produces 5-4 decisions
-dissent plays a special role in the work and impact of the Court because it amounts to an appeal to lawyers all over the country to keep bringing cases of the sort at issue. therefore, an effective dissent influences the flow of cases through the Court as well as the arguments that lawyers will make in later cases.
Congressional Responses to judicial review:
-if declared unconstitutional, Congress can pass an amendment
--14th amendment (equal protection under law)
--16th amendment (individual income tax)
-interpretation of law
--may pass law with clarifying languages
---ex: Voting Rights Act of 1965
Limitations on the court
(2): limited by cases
(3): have no enforcement ability
(1)-Even though the courts are extremely important, they are fundamentally limited by the fact that they are passive.
(2)-They have to wait for conflicts to come to them before they can make a decision on a policy.
(3)-They are also extremely limited by the fact that they have no direct enforcement capability.
--They have to rely on voluntary respect for their rulings.
---Brown v. Board is a good example of lack of enforcement.
----Because of this they have guard the reputation of the Court so that people will respect and enforce their rulings
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