Unit 5B Review PowerPoint Judiciary and Bureaucracy.

Unit 5B Review PowerPoint

Judiciary and Bureaucracy

Big themes to focus on: • Focus on the checks and balances that each branch of

government has on another. Specifically: – What can the president do to control the bureaucracy? Is it

effective? – What does Congress do to control the bureaucracy? Is it

effective? – What are common complaints about the bureaucracy, but

also, why is it natural that they occur? – What politics go into judicial appointments and

confirmations? – How, specifically, is the judicial branch protected from as

well as conscious of public opinion?

The Idea of Judicial Review

A. Only in the United States do judges play so large a role in policy-making

*selecting judges is often a bitter conflict!

1. Judicial Review: the right of the federal courts to rule the constitutionality of laws and executive actions

a. Chief judicial weapon in the checks and balances system

b. Since 1789, the Supreme Court has declared over 160 federal laws unconstitutional Development of the Courts

Debate: How should the Constitution should be interpreted?

1. Strict Constructionist: judges are bound by wording of the Constitution = judicial restraint

2. Activist (Loose Constructionist): judges should look to underlying principles of Constitution = judicial activism

3. Not a matter of liberal versus conservative a. A judge can be both conservative and activist, or liberal and strict constructionist b. Today: most activists tend to be liberal, most strict constructionists tend to be conservative

Debate today is over how the Constitution should be interpreted: Strict v. Loose Constructionist Development of the Courts

Marbury v. Madison (IMPORTANT! IMPORTANT! IMPORTANT! IMPORTANT!)

• Chief Justice Marshall’s Opinion:– Does Marbury have right to Commission? YES – Do the laws give Marbury legal remedy? YES – Is asking the SC for a writ of mandamus the correct legal

remedy? NO • Article III of Constitution does not give SC original

jurisdiction over writ of mandamus, so Judiciary Act and Constitution are in conflict! – SC declares Judiciary Act invalid

–Thus, the birth of JUDICIAL REVIEW!

Development of the Courts

Structure of the Federal Courts

What does the Constitution say in Article III?

Provides for Supreme Court

Specifies jurisdiction

Provides details regarding juries/treason

No mention of court structure…

Structure of the Courts

Structure of the Federal Courts The Supreme Court is the only court

required within the constitution…

In Article I, sec. 8 (delegated powers)…

“Congress shall have the power to constitute

tribunals inferior to the Supreme Court.”

(Structure is then created by Judiciary Act of

1789)Structure of the Courts

The Structure of the Federal CourtsTwo kinds of federal courts were created by

Congress to handle cases that the Supreme Court does not need to decide

1. Constitutional courts – exercise judicial powers found in Article III

a. Judges serve during good behavior b. Salaries not reduced while in officec. Examples: District Courts (94), Courts of Appeals (12 circuits)


The Structure of the Federal Courts

2. Legislative courts a. Created by Congress for specialized purposesb. Judges have fixed terms c. Judges can be removed d. No salary protection

Examples: Court of Military Appeals, Territorial Courts


Selecting Judges…1. Judicial behavior

a. Party background has a strong effect on judicial behavior

*Democrats more likely to make liberal decisions, Republicans conservative

b. Other factors also shape court decisions: facts of the case, prior rulings, legal arguments *Presidents are often surprised when a justices votes defiantly than expected


Selecting Judges…2. Senatorial courtesy

a. Appointees for federal courts are reviewed by senators from that state, if the senators are of the president’s party (particularly the U.S. district courts)

b. Gives heavy weight to preferences of senators from state in which judge will serve

– Negative opinion of judge can kill nomination – “Blue slip”—Senator’s opinion recorded on blue

paper


Selecting Judges…3. The “litmus test”

a. Litmus test: a test of ideological purity b. Presidents seek judicial appointees who share their

political ideologies c. Has caused different circuits to come to different rulings

about similar cases *Example: at one point affirmative action was legal in the 9th and illegal in the 5th.

d. Raises concerns that ideological tests are too dominant, and has caused delays in securing Senate confirmation

e. Greatest impact on Supreme Court – no tradition of senatorial courtesy, President much more interested in nominees


Basic Judicial Requirements

• Jurisdiction –Authority of a court to

hear and decide a case• Original • Appellate

• Standing– Sufficient stake in matter

to justify bringing suit


Jurisdiction of the Federal Courts

• Dual Court system – State systems– Federal system

Federal cases listed in Article III and Eleventh Amendment of the Constitution

a. Federal question cases: involving U.S. Constitution, federal law, treaties

b. Diversity cases: involving different states, or citizens of different states


Three-Tiered Model

3

2

1


The Supreme Court

• Let’s start with a little vocabulary…–Writ of certiorari (writ): an order by a

higher court directing a lower court to send up a case for review. – In forma pauperis: a method whereby a

poor person can have his or her case heard in federal court without monetary charge.

Supreme Court

The Supreme CourtDeterrents to the courts acting as democratic institutions

1. Supreme Court rejects all but a few of the applications for certiorari (96% rejected!!)

2. Costs of appeal are high a. Financial costs may be lowered

1) In forma pauperis: plaintiff indigent, with costs paid by government (Like in Gideon) 2) Indigent defendant in a criminal trial: legal counsel provided by government at no charge 3) Payment by interest groups (e.g. ACLU—usually liberal)

b. Cost in terms of time is also high, & cannot be mitigated

Supreme Court

The Supreme CourtStanding 1. Guidelines regarding who is entitled to bring a new case

a. There must be a real controversy between adversaries b. Personal harm must be demonstrated c. Being a taxpayer does not ordinarily constitute entitlement

to challenge federal government action; this requirement is relaxed when the First Amendment is involved

2. Sovereign immunity a. Government must consent to being sued (usually have to

show harm)b. By statute, government has given its consent to be sued in

cases involving contact disputes and negligence (rules have been relaxed)

Supreme Court

The Supreme Court What is the procedure of a case?– Court grants WRIT OF CERTIORARI to any petition that gets

votes of four or more justices– Attorneys for each side file their BRIEFS, explaining their

arguments • If federal government is a party in the case, the Solicitor General

(3rd ranking officer in the Department of Justice) represents it– Justices then listen to the oral arguments

• Each side gets half an hour• Justices frequently interrupt with questions (a lot of them!)

– Since federal government is a party to almost half the cases, the solicitor general frequently appears before the courts• Solicitor general = federal government’s top trial lawyer

Supreme Court

The Supreme Court Procedure (Continued)– Justices read any amicus curiae (friend of the

court) briefs submitted, consider all opinions – On Fridays, justices meet to conference and argue

each case they heard that week• Very private! No stenographers, tape recorders or

video cameras allowed!

– Vote is taken, opinions assigned

Supreme Court

The Supreme Court Opinions – Per curiam: brief and unsigned, “by the court” – Opinion of the court: means majority opinion – Concurring opinion: agree with the ruling of the

majority opinion, but modify the supporting reasoning. (agrees but for different reasons)

– Dissenting: this is the minority opinion (those that disagree with the majority within the Supreme Court justice vote)

– On the record to protest the majority; have been used over 200 times to help overturn a previous opinion

– About 40% of votes are unanimous

Supreme Court

The Power to Make Policy 1. By interpretation of the Constitution or law 2. By extending the reach of existing law 3. By designing remedies that involve judges acting

in administrative or legal ways

The Powers of the Courts

Measures of Power1. Number of laws declared unconstitutional (over 160)2. Number of prior cases overturned; not following stare

decisis (over 260 cases since 1810)• Stare decisis = “let the decision stand”

3. Extend to which judges will handle cases once left to the legislature (political questions)

4.Kinds of remedies imposed; judges may go beyond what is narrowly required – Remedies = what must be done to correct a wrong situation.

Often apply to large numbers of people. 5. Basis for sweeping orders can come either from the

Constitution or from court interpretation of federal laws


Views of Judicial Activism

Supporters a. Courts should correct

injustices when other branches or state governments refuse to do so

b. Courts are the last resort for those without the power or influence to gin new laws

Critics a. Judges lack experience in

designing and managing complex institutions

-schools, prisons, etc

b. Initiatives require balancing policy priorities and allocating public revenues

c. Courts are not accountable because judges are not elected

-Takes “we the people” out of the equation; immune to popular control.


Checks on Judicial PowerBasic restraints on judicial power 1. Judicial decisions can be resisted or ignored

-Segregation, prayer in school 2. Judges have no enforcement mechanism (police

force or army)3. Resistance is most effective if the person or

organization resisting is not highly visible 4. Resisters must be willing to run the risk of being

caught and charged with contempt of court


Checks on Judicial PowerCongress and the Courts1. Confirmation and impeachment proceedings

gradually alter composition of courts, though impeachment is an extraordinary and unusual event

2. Changing the number of judges, giving president more or less appointment opportunities

3. Supreme Court decisions can be undone a. Revising legislation b. Amending the Constitution c. Altering jurisdiction of the Court d. Restricting Court remedies


Checks on Judicial Power

Public Opinion and the Courts

1. Defying public opinion frontally may be dangerous to the legitimacy of the Supreme Court, especially elite opinion

2. Opinion is realigning era may energize court 3. Public confidence in the Supreme Court since

1966 has varied with popular support for the government, generally


Views of Judicial Activism

Possible reasons for activism • Adversary culture, emphasizing individual rights

and suspicious of government power • Easier to get standing in courts & pay for

litigation than it once was.

* both of these result in increased numbers of cases heard!


Checks on Judicial Power

Reasons for increased judicial activism

1. Government does more and courts interpret the laws (growth of government as a whole)

2. Activist ethos of judges is now more widely accepted – Once existed to settle disputes, now exists to

solve problems.


We are half way there!!!

Moving onto the Bureaucracy…

What is the Bureaucracy?• A large, complex organization composed of appointed

officials in which authority is divided among several managers

• Complex because authority is divided among several managers, no one person can make all decisions.

• Term comes from French word “bureau” meaning a government worker’s desk and “cracy” meaning a form of government

• Approximately 4 million government workers in federal bureaucracy, about 1/3 of whom work in armed forces or defense agencies

The Bureaucracy

Distinctiveness of the American Bureaucracy

While size and complexity can cause problems for bureaucracies, the political context in which these organizations act may be what creates problems

Distinctiveness of the American Bureaucracy 1. Political authority over the bureaucracy is shared by president and Congress 2. Federal agencies share functions with related state and local government agencies

3. Adversary culture leads to closer scrutiny and makes court challenges more likely

The Bureaucracy

The Growth of the BureaucracyA. Constitution made little provision for

administrative system, so provide little guidance 1. One early controversy ended when the Supreme

Court gave the president sole removal power (without congressional assent)

2. Congress still funds and investigates agencies, and shapes the laws they administer

So who really controls the bureaucracy??? The Bureaucracy

The Growth of the BureaucracyB. The Appointment of Officials 1. Officials affect how laws are interpreted, tone and effectiveness

of administration, party strength 2. Patronage in nineteenth and early twentieth centuries rewarded

supporters, induced congressional support, built party organizations

*later brought calls for reform3. Civil War a watershed in bureaucratic growth; it showed the

administrative weakness of federal government and increased demands for civil service reform

4. Post-Civil War period saw industrialization, emergence of a national economy – power of national government to regulate interstate commerce became necessary and controversial

The Bureaucracy

The Growth of the Bureaucracy

C. A Service Role 1. 1861-1901: new agencies primarily performed service

roles (200,000 new federal employees added) a. Constraints of limited government, states’ rights, and

fragmented power b. Laissez-faire philosophy c. Supreme Court held that, under the Constitution, executive

agencies could only apply statues passed by Congress **Constitution gave Congress power to regulate commerce

2. Wars led to reduced restrictions on administrators and an enduring increase in executive branch personnel

The Bureaucracy

A Change in Role…WHY?? 1. Depression and World War II led to government activism 2. Supreme Court upheld laws that granted discretion to administrative agencies 3. Heavy use of income taxes supported war effort and a large bureaucracy 4. Public believes in continuing military preparedness and various social programs 5. 9/11 attacks could also affect bureaucracy as profoundly as WWII and the Depression

a. New cabinet agency (Department of Homeland Security) was created b. Consolidation of intelligence-gathering activities under National Intelligence Director

The Bureaucracy

The Federal Bureaucracy Today

A. Direct and indirect growth 1. Modest increase in number of government employees 2. Significant indirect increase in number of employees through use

of private contractors, state and local government employees

B. Growth in discretionary authority – the ability to choose courses of action and to make policies not set out in the statutory law (more discretionary authority = more power) 1. Delegation of undefined authority to Congress greatly increased 2. Primary areas of delegation of authority from Congress

a. Subsidies to groups and organizations b. Grant-in-aid programs, transferring money from national to

state and local governments c. Devising and enforcing regulations, especially for the economy

The Bureaucracy Part II

Recruitment and Retention1. Competitive service (Civil Servants): bureaucrats compete for

jobs through Office of Personnel Management (OPM)a. Appointments by merit based on written exam or through selection

criteria b. Competitive service system has become more decentralized, less reliant

of OPM referral

1) OPM system is cumbersome and not geared to department needs 2) Agencies have need of professionals who cannot be ranked by examination (biologists, engineers, lawyers, etc)3) Agencies face pressure to diversify federal bureaucracy

personnel (make bureaucracy population look like regular pop)


Recruitment and Retention2. Excepted service (Political Appointees) : bureaucrats appointed by

agencies, typically in a nonpartisan fashion a. About 3% of expected employees are appointed on grounds other than merit –

presidential appointments, Schedule C jobs, non-career executive assignments

*Schedule C = jobs that have “confidential or policy determining character,” below level of cabinet or subcabinet posts *non-career executive assignments= involved in advocacy of presidential programs and policy making

b. Pendleton Act (1883): changed the basis of government jobs from patronage to merit c. Merit system protects president from pressure and protects patronage

appointees from removal by new presidents (blanket in) *average appointee on the job 22 months. Not long enough to have lasting impact.


Effects of Constraints 1) Government moves slowly 2) Government sometimes acts

inconsistently 3) Easier to block action than take action 4) Reluctant decision making by lower-

ranking employees 5) Red tape

**Constraints come from citizens: agencies try to respond to citizen demand for openness, honesty, fairness, etc.


Agency Allies 1. Agencies often seek alliances with congressional committees

and interest groups a. Iron triangle – a tight, mutually advantageous alliance b. Resulted in client politics

2. Far less common today – politics have become too complicated a. More interest groups, more congressional subcommittees – more

competing forces b. Courts have also granted more access

3. Issue networks: groups that regularly debate government policy on certain issues a. Contentions – split along partisan, ideological, economic lines b. New presidents often recruit from networks


Issue Networks

• Though iron triangles still exist, they are often inadequate explanations of how policy is made

• Typically described today in terms of issue networks, individuals or organizations that support a particular policy position on an issue– Legislators and/or their staff– Interest groups– Bureaucrats– Scholars/experts – Representatives from the media


Forms of Congressional Supervision

• Congress creates agencies – Influences agency behavior by statutes it enacts

• Congress authorizes funds for programs • Congressional appropriations provides funds

for the agency to spend on its programs – Funds can’t be spent unless also appropriated – Appropriations = money formally set aside for

specific use

Congressional Oversight

The Legislative Veto

• Definition: a requirement that an executive decision must lie before Congress for a specified period before it takes effect

• Usually 30-90 days

• Declared unconstitutional by Supreme Court in Chadha (1983)

• Congress can’t take action that has force of law w/o executive consent

• Debate about the legislative veto continues…


Congressional Investigations

• Power inferred from the congressional power to legislate

• Means for checking agency discretion and also for authorizing agency actions independent of presidential preferences


Five major complaints about the bureaucracy

• Red tape – complex and sometimes conflicting rules • Conflict – agencies work at cross-purposes • Duplication – two or more agencies seem to do the same

thing • Imperialism – tendency of agencies to grow, irrespective

of programs’ benefits and costs • Waste – spending more than is necessary to buy some

product or service

*Each complaint has logical origins in the constitutional order and policy-making process

*Some exaggerations and unusual circumstances generate difficulties


Reforming the Bureaucracy • Numerous attempts to make the bureaucracy work

better for less money – Eleven reform attempts in the 1900s– Prior reforms stressed increasing centralized control on

behalf of efficiency, accountability, and consistency – National Performance Review (NPR) in 1993 designed

to reinvent government calling for a new kind of organizational culture • Less centralized management • More employee initiatives • Fewer detailed rules, more customer satisfaction


Again: big themes to focus on: • Focus on the checks and balances that each branch of

government has on another. Specifically: – What can the president do to control the bureaucracy? Is it

effective? – What does Congress do to control the bureaucracy? Is it

effective? – What are common complaints about the bureaucracy, but

also, why is it natural that they occur? – What politics go into judicial appointments and

confirmations? – How, specifically, is the judicial branch protected from as

well as conscious of public opinion?

Unit 5B Review PowerPoint Judiciary and Bureaucracy.

Documents

Transcript of Unit 5B Review PowerPoint Judiciary and Bureaucracy.