Unit 3
Congress, The Presidency, The Bureaucracy, The Judiciary
Difference between Congress and Parliament Becoming a member
Parliament: persuade political party to put name on ballot Someone willing to support national policy
and party Election is choice between parties, not
people Congress: run in a primary election
Parliament members support national policies, Congress people support local policies
Role of office Parliament – whether to support the
government or not Congress – develop and vote for proposed
laws; independent from executive branch
The Evolution of Congress Fear of “tyrant” Bicameral congress: protect the
interests of the large/small states; protect the interest of federal/state governments
Powers are limited to those expressed in the Constitution (really?) Taxes * rule over DC Elastic Clause Regulate commerce Naturalization rule Coin money *borrow $ Declare war * provide for militia Coin money * weights/measure Post office * patents Establish courts * maritime laws
The Evolution of Congress, cont. Checks and Balances
Institutional Powers Senate ratifies treaties with 2/3
vote Senate approves appointments
with majority vote House votes for impeachment,
Senate tries the impeachment case
If no electoral college majority, House elects the President, Senate the VP
Proposal of constitutional amendments with 2/3 vote in each house
Can seat, unseat, punish members of both houses
Equal power? Importance of Senate
The Evolution of Congress, cont. Implied Powers
Based on elastic clause Denied Powers
Passing ex post facto laws Passing bills of attainder Suspending habeas corpus except during
rebellion/invasion
The Evolution of Congress, cont. Struggles within
Congress (distribution of power within Congress)
The period of the founding Originally directed by the
executive branch, soon developed own leadership
Originally, the House was the preeminent institution
Evolution of Congress, cont. Decline of the House
Influence of Andrew Jackson and his vetoes
Division of the issue of slavery
Importance of the Senate Importance of issues that
fell under their jurisdiction The rise of party control
in the House Increased power and
prestige of the Speaker of the House (Reed)
Evolution of Congress, cont.
Decentralization of the House Rise of party caucus Rules Committee
What legislation got presented
Rise of the chairpeople of standing committees Setting committee agenda Determining which bills to
report out Influence on content of bills Reward of seniority
Evolution of Congress, cont.
Recent changes in the House Increased power for all Representatives Increased number of all subcommittees; including
power of chairpeople Increase in the amount of staff
The Evolution of Congress, cont. “Democratization” of the
Senate Senate is more decentralized
Fewer members No ‘speaker’ Lack of rules of committee
17th Amendment, 1913 End millionaire club Senate passed amendment
under the threat of states calling a new constitutional convention
Rule 22 regarding filibusters Cloture; 1917 3/5 vote could limit filbusters
Who is in Congress? Sex and Race
Demographical changes represented in Congress
Can anyone represent anyone else? Typically older, white male comes
from law/business background Incumbency
Growing percentage of re-elected members
Biggest factor in congressional elections
Congress being seen as more of a career
Debate on term limitations Party
Getting Elected to Congress
Determining Fair Representation Malapportionment Gerrymandering Determining Representation
Total size of the House Allocating seats among the states Determining size of congressional districts within states Determining shape of those districts
Winning the Primary Increased advantage for incumbents How re-election influences term
Organization of Congress: Parties and Interests
Party structure of the House 435 members 2 year term limits No limit on terms At least 25 years old, citizen
for 7 years, resident of state Speaker of the House Floor leader (majority leader,
minority leader) Steering and policy
committee (committee assignments)
Organization of Congress: Parties and Interests Party organization of the Senate
Senate has 100 members 6 year term limit
Staggered so 1/3 elected every 2 years At least 30, citizen for 9 years, resident of the state Vice President is President of Senate
Only votes in a tie Ceremonial position
President pro tempore In line for presidency after the Speaker
Real power is in the majority leader, minority leader: whips Majority leader recognized first for all debates True leader of majority party in Senate
Policy committee – sets Senate agenda
Organization of Congress: Parties and Interests Party Voting
Broad policy agreements Party provides information on various bills Work towards long-term advantage in terms of
influence, prestige, etc. Caucuses
Democratic Study Group (DSG) Conservative Democratic Forum State Delegations Etc.
Organization of Congress: Committees Real work of Congress is done in the committee and subcommittees
Importance of getting on right committee – one in which constituents are best served (agricultural, technology, military, etc.)
Represent most of the power of congress Decisions on committees determine legislation Roughly two dozen committees and over 100 subcommittees
Standing committees Permanent
Select committees Appointed for a limited purpose
Joint committees Both rep. and sen. serve
Number of seats varies by committee Seniority as role in selection process Chairs are of the majority party
Secret ballot; expertise; generally seniority system honored
Types of Committees
House Rules Committee most
powerful Ways and Means deal with
tax bills Appropriations deal with
spending bills Budget Armed Services
Senate Finance deals with tax
bills Appropriations deals with
spending bills Budget Foreign relations – to
reflect the Senate role in foreign affairs
Organization of Congress: Staffs and Specialized Offices Vast, recent increase in staff size Tasks of staff members
Servicing requests from constituents Local offices as well as Washington offices
Legal paperwork for congress members Advocacy role for staff negotiators
Staff agencies Congressional Research Service (CRS) General Accounting Office (GAO) Office of Technology Assessment (OTA) Congressional Budget Office (CBO)
How a Bill Becomes a Law Less than 10% of bills actually
pass Introducing a Bill
Any member of Congress many introduce May be public or private Has the lifetime of one Congress Only House may introduce bills for
raising revenue Resolutions
Simple – establishes rules of operation
Concurrent – housekeeping/procedural matters
Joint – essentially the same as a law
How a Bill becomes a Law, cont. Study by Committees
Most bills die in committee Live bills are then sent to
subcommittees Many bills fall into multiple referral –
many subcommittees look at their overall effect rather than allowing a slow, painful death
Committees may “mark-up” bills Revisions and additions
Committee may pigeonhole a bill – which is the most common fate
Committees “reports out” the bill Can bypass the committee
stall/procedures through a discharge petition
Floor vote to vote on bill
How a Bill becomes a Law, cont. Study by committees, cont.
To come back to House or Senate, bill is placed on the calendar Closed Rule: strict time limit on
debate Open Rule: permits
amendments from the floor Restrictive Rule: some
amendments but not others
How a Bill Becomes a Law, cont. Study by committees, cont.
Types of Calendars: House Union calendar (appropriations) House calendar (nonmoney bills of major importance) Private calendar (private bills - affect 1 person) Consent calendar (noncontroversial bills) Discharge calendar (discharge petitions)
Types of Calendars: Senate Executive calendar (Presidential nominations, proposed
treaties, etc.) Calendar of business (all legislation)
How a Bill becomes a Law, cont. Study by committees, cont.
House ways of bypassing the Rules Committee Member can move that the rules be suspended
2/3 vote Discharge petition
process to force a bill out of committee successful petition requires the signatures of 218
members, which is a majority of the House. “Calendar Wednesday” procedure
Challenge speaker’s control of the agenda
How a Bill becomes a Law, cont. Floor Debate – the
House Floor Debate – the
Senate Additions of
amendments may be made from the floor (but not on appropriations bills)
Filibuster
How a Bill becomes a Law, cont. Methods of Voting
Voting often reflects amendment vote rather than bill vote
Teller vote or roll call Reconciliation of the
differences in a bill between the House and the Senate
Bargaining for votes
How Members of Congress Vote Representational View
Clear constituent view Organizational View
Cues from colleagues Attitudinal View
Personal ideology
Founding Fathers views on Congress’s ability to pass bills
The intent of the Founders was the create a cautious and a deliberate process for legislating
Role of the President Sign the bill Veto Ignore
If congress is in session, in 10 days an unsigned bill will become a law
However, if during those 10 days Congress adjourns, bill will be automatically vetoed
Ethics and Congress Attempts to influence/bribe
Presidential influence through snubbing or helping campaign
How should members of Congress be judged? Congress has the right to judge
and discipline its own members Executive branch investigations
are handled by independent special prosecutor
Campaign financing
Ethics and Congress, cont. Incumbency advantage in elections
Reelection rate in House is over 90%, Senate over 80% Franking privilege Staff Patronage Name recongintion Money
Attempts at Reform Financial disclosure statements Honorarias Can no longer keep surplus campaign funds for personal
use after retirement Restriction on gifts “free travel” restrictions
The Old and the New Congress First Stage
WWI – 1960s House dominated by
committee chairman Second Stage
1970s Caucus would select
committee chairmen Increased staffs
Third Stage Effort in House to
strengthen and centralize party leadership
Presidents and Prime Ministers Influence of Prime Minister
Representative of political party in power Has majority representation in parliament Cabinet members are chosen from parliament
Influence of President Presidents are often political outsiders Cabinet members are from outside Congress Presidents don’t necessarily represent majority party Can be at a crossroads even with own party
Divided Government Policy problems: budget, war, appointments, ethics, etc.
Evolution of the Presidency Concerns of the
Founders Could overwhelm state
governments via use of the militia
Could become “tool” of the Senate
How do we elect/choose Electoral College
State select electors however they want
If no victor-election would go to the House
Compromise of the factions
Evolution of the Presidency, cont. President’s Term of Office
Traditional 2 term limit until Roosevelt 22nd Amendment, 1951 How do we transition between presidents?
Jefferson and Jackson increased role and power of President Acts and vetoes
Reemergence of Congress After Jackson left office, congress re-exerted
itself Lincoln the exception
Continuing pattern until FDR and the New Deal Teddy and Wilson the exception
Current changing view of President as initiator of policy
The Powers of the President Commander in Chief
Head of the armed forces Commission officers of the
armed forces Chief Jurist
Grant reprieves and pardons for federal offenses
Appoints federal judges Chief Legislator
Convene congress in special sessions
Proposes legislation Vetoes legislation
The Powers of the President, cont. Chief Diplomat
Appoints ambassadors Sets overall foreign policy Negotiates treaties and executive agreements Grants diplomatic recognition to foreign governments
Chief Executive Enforces laws (loosely interpreted), treaties, court
decisions Appoints officials to office Issues executive orders – which have the force of laws
Chief of State Ceremonial head of nation Most nations separate chief of state and chief executive
The Powers of the President, cont. Non-Constitutional
Roles Head of political party Chief Economist
Greatest source of presidential power is in public opinion From WWII to today,
Presidential power has grown due to public expectations Cold War, Terrorism
The Office of the President Qualifications
Natural-born citizen 35 years of age Resident of the US for at least
14 years Growth of
staff/responsibility First secretary in 1857 White House staff, ~ 500 Staff can isolate president
Appointments to cabinet, courts, agencies, etc.
The Office of the President, cont. Rule of Propinquity
People who are in the room when a decision is made have the power
Fierce competition to be closest to the Oval Office
White House Office Circular or pyramid
organization Competition among staff
for president’s ‘ear’
Executive Office of the President Office of Management and Budget (OMB)
Assemble and analyze figures for the national budget Studies organization and operations of the executive branch Reviews federal programs
National Security Council (NSC) Coordinates foreign/military policy Growing in importance
Council of Economic Advisers (CEA) Three person advisory group
Office of Personal Management (OPM) Office of the US Trade Representative Central Intelligence Agency (CIA)
The Cabinet Not a constitutional body Heads of 14 major
executive departments Small number of
presidential appointees in each department
Self-preservation interests of cabinet members
May be more loyal to Congress (funding) than President (appointment)
Who Gets Appointed?
“in – and outers” People who have
political followers Expertise
Presidential Character: Role of Personality Eisenhower disguised his efficiency and
thoroughness to evade questions Kennedy projected boldness Johnson was ineffective at speaking to the public,
strong in one on one deal making Nixon’s personality also made it hard for him to
develop popular support Ford enjoyed meeting with people – very genial Carter boasted about how “un-Washington” he was Reagan was the “Great Communicator” H.W. Bush made many contacts with other leaders
but was not able to articulate with the public
Presidential Character: Role of Personality Clinton seemed to slide
through various situations because of his ability to connect with the public
Bush seemed single-minded and full of resolve to the public
The Power to Persuade The Three Audiences
Washington DC Fellow politicians and
leaders Party Activists
Activists in and outside of Washington
The Public Fewer and fewer
impromptu remarks More dependent on
prepared addresses
Popularity and Influence
Congress responds to president’s popularity even though it doesn’t affect their ‘seat’
Congress and the ‘coattails theory’
Can be reflected in how much presidential policies are passed by Congress
Decline in Popularity
Most presidents see a loss of approval
The Power to Say NO Veto
Pocket Veto Executive Privilege
Constitution is silent on matter President claims right
Separation of Powers: one branch can’t look into affairs of other
Statecraft and prudent administration First real challenge came in 1973 with
Watergate Impoundment of Funds
Refusal to spend money appropriated by Congress
Congress responded with Budget Reform Act, 1974 Money must be spent
The President’s Program President draws from many sources
Aides and campaign advisors Federal bureaus and agencies Outside, academic, specialists Interest groups
Two philosophies Have policy on everything Concentrate on three or four major
themes Constraints
Time limits Unexpected crisis Government can really only be changed
marginally
The President’s Program, cont. Measuring Success
Proportion of the proposals approved by Congress
Proportion of votes taken in Congress on which the President’s position prevails
Attempts to Reorganize Presidents try to restructure organization Personal White House staff can be reorganized at
any time Larger agencies need Congressional approval
Presidential Transition Only 15 Presidents since
Washington have not been re-elected to a second term 9 have not finished term (death,
resignation) Vice President
8 VP have succeeded presidents Only 5 VP have been elected
President (unless they assumed office after death)
Can be an empty position Only 2 constitutional duties:
Become acting President Serve as President of the Senate
Presidential Transition, cont. Problems of Succession
What if president is seriously ill but doesn’t die?
Who becomes VP when he steps up to Presidency? Succession Act, 1886 25th Amendment, 1967
Impeachment Impeachment is an
indictment voted by the House
To be removed, must be found guilty by 2/3s vote in Senate
How Powerful is the President? Dependent on
circumstances Move at the first
opportunity Staffing issues are vital
Way to look at who is in the government
Electoral College Compromise of Electing President
One electoral vote for each member of Congress Min. 3
District of Columbia has three electoral votes Total, 538 States choose electors
Only Nebraska and Maine have potential to give votes to more than one candidate
Other states give all electoral votes to winner of election – can be plurality or majority
Electoral Votes Electors meet in state capitals in December to cast ballots Candidates need majority of electoral votes to become
President If no candidate receives a majority, election goes to House
of Representatives where each state only has 1 vote
Electoral College, cont. Problems
May allow a minority President 1824, 1876, 1888, 2000
“Faithless” electors: no law to prevent electors from switching
Small states are proportionately overrepresented – even more so if election goes to House
Inhibits development of third parties Alternatives
Direct Election Won’t happen….why?
District System Win a congressional district, win that vote
Proportional System Get same percent of electoral votes as popular
votes
The Bureaucracy
Agencies Departments Commissions All within executive
branch
Distinctiveness of the American Bureaucracy Political authority over the
bureaucracy is shared among several institutions Congress and the President Divisions within the Congress
Most agencies share their functions with state and local government
Institutions and American way of life have contributed to growth of personal actions, thus the growth of bureaucracy to deal with them
Growth of the Bureaucracy Gradual, historic growth of agencies
First agency – Department of State Initially filled through the spoils system Debate over how people appointed,
taken out of offices Small start for organizations and
agencies Currently over 3 million employees in
bureaucracy Appointment of officials
Appointments as rewards Changing qualifications with quick
growth Civil service reforms
Growth of the Bureaucracy A Service Role
Agencies changed from regulation to service
Government economic regulation initiated in 1887
Congress increases regulatory commissions to regulate economy
Wars generally increased bureaucracy without cutting it after war
Change in Role Bureaucracy affected by New Deal and
WWII Government had active role in the
economy New actions by the Supreme Court
The Federal Bureaucracy Today Hidden Statistics
People who work indirectly for the government Federal contractors, consultants Higher level bureaucrats typically white males Lower level: women, minorities
skew demographics of bureaucracies toward minorities? Reality is in increased numbers and increased power
Paying subsidies to groups and organizations Transferring money from fed to state and local State now required to hire more employees for state based bureaucracies Devising and enforcing regulations for sectors of society and economy
Behavior of officials Manner in which they are recruited and rewarded Personal attributes Nature of jobs Constraints of outside forces (superiors, legislators, interest groups,
journalists)
Recruitment and Retention 2/3s by competitive service
administered by Office of Personnel Management, OPM
1/3 by expected service Exceptions
Presidential appointments “Schedule C” jobs – confidential or
policy-determining character Noncareer executive assignment
(NEA jobs) Pendleton Act of 1883 started
trend from patronage to merit
The Buddy System
“name-request” system “tailor – made” position
Firing a Bureaucrat Written notice at least
30 days in advance Statement of reasons Right to an attorney
Reply to charges Right to appeal any
adverse actions Right to hearing May appeal MSPB
decision to US Court of Appeals
Civil Service Reform Act of 1978 Allowed some
loosening of firing procedures for top-level bureaucrats SES
Agency’s Point of View
Most civil service employees are lifetime government service people
To change direction of agency, executives must woo the employees
Personal Attributes
High-ranking officials represent an elite segment of American society
Many believe this makes agencies out of touch with the people they are to serve
High-ranking officials seem to be more liberal than mainstream America
Attitudes also related to agency person works for
Do Bureaucrats Sabotage their Political Bosses? Hard to fire career
bureaucrats Bureaucrats may drag
heel, block action, etc Work well with supervisors
who work cooperatively and constructively
Culture, Career, and Constraints
Culture and Careers Constraints
Legal procedures Shared responsibilities
(between agencies) Slow movement Inconsistencies Constraints as response
to public demands
Agencies Allies Iron Triangle
Relationship among an agency, a committee and an interest group
Department would act in order to get political support and budget appropriations, committee members act in order to get votes
Client politics Agencies have allies in
Congress and the private sector
Bureaucratic Power
Discretionary authority Passing rules and
regulations Quasi-legislative power
Helping Congress draft legislation
Providing advice to White House
Settling disputes
Congressional Oversight Agencies can only exist with
Congressional approval No money can be spent without
being authorized by Congress Annual Appropriation of Money Appropriations Committee and
legislative committees Power over an agencies budget Continual power struggles
Trust Funds Annual authorization Congress tries to keep funding down Committee clearance
Congressional Oversight, cont. Legislative Veto
Desired by Congress, declared unconstitutional by the Supreme Court
Did require President to keep an executive decision before Congress for an extended length of time before enactment
Congressional Investigations Not a Constitutional power – but
Supreme Court has upheld validity
Bureaucratic “Pathologies” Problems
Red tape Complex rules and procedures
Conflict Agencies working at cross purposes
Duplication Two agencies seem to have same
tasks Imperialism
Agencies grow without regard to benefits of their programs or the cost of their programs
Waste Spending more than is necessary No incentive to be efficient/effective
The Judiciary
Development of the Federal Courts Jurisdiction
Exclusive: sole authority of federal courts Constitution, federal law, treaty Admiralty/maritime law Disputes between states US government is a party Citizens of different states Ambassadors/diplomats A state as a party
Concurrent: both federal and state courts Original: authority of a court to first try a
case Appellate: court that hears a subsequent
appeal
Development of the Federal Courts, cont. Traditional view that
judges would find and apply existing law Based on what the law
required Judicial activism argued that
judges make the laws Founders were able to
justify power of judicial review – courts would have a neutral role in government
Development of the Federal Courts, cont.
Hamilton argued that courts could decide whether a law is contrary to the constitution
1787- 1865: legitimacy of federal government and slavery
1865 – 1937: relationship between government and the economy
1938 – present: personal liberty and social equality
Development of the Federal Courts, cont. National Supremacy and Slavery
Under John Marshall, national law was deemed to be dominant law is all instances
Supreme Court had right to determine what the Constitution meant
Marbury v. Madison, 1803 McCulloch v. Maryland, 1819
Supreme Court could declare an act of Congress unconstitutional
Federal government flows from people, laws necessary to attain constitutional ends are permissible
Federal law is supreme Dred Scott
Roger Taney wrote that slaves are not citizens and so federal laws affecting slavery were unconstitutional
Development of the Federal Courts, cont. Government and the
Economy Favor of private property Focus of the 14th amendment
shifted from black citizenship to protection of corporations (big business) Blockage of anti-trust,
regulatory legislations Ruled against labor
unions/strikes
Development of the Federal Courts, cont. Government and
Political Liberty Change in focus and
priorities of the justices Earl Warren redefined
relationship of citizens to government and protection from government infringement
The Structure of the Federal Courts Only court established by the Constitution is
the Supreme Court – all other federal courts have been established by Congress Constitutional court – exercising the judicial
powers from Article III District courts (94) Courts of appeal (12)
Legislative court – specialized purpose, fixed terms of office
The Structure of the Federal Courts Types of law
Statutory – deals with written statues (laws)
Common Based upon a system of written law Based upon precedents - state decisis
Criminal Violations of criminal code Violations against society
Civil Disputes between two parties
Breach on contract, slander, malpractice Writ of mandamus – court order for one
party to perform a certain act Injunction – prohibits a party to act Class action lawsuit
The Structure of the Federal Courts Selecting Judges
Constitutional judges have life terms – selected by President, approved by Senate (usually represent President’s party)
Party, etc. does not always predict ruling – base on facts of case, arguments, etc.
Primarily male (Sandra Day O’ Conner 1st female)
Senatorial Courtesy Senate usually approves if Senators
from state of nominee approve Not existent for Supreme Court
Litmus Test – judges as representative of President’s views?
The Structure of the Federal Courts The Jurisdiction of the Federal Courts
Dual Court System One state, one federal There are different cases for each Some cases fall under both jurisdictions
and can be tried in either or both Appellate Jurisdiction
Lower federal courts Highest state courts
Writ of Certiorari Way of petitioning Supreme Court to hear
appeal If four justices agree, cert is issued and
the case is scheduled – rule of four Look for constitutional issue
The Structure of the Federal Courts Going to Court
Fee Shifting Sovereign Immunity Standing – being entitled
to have a case Controversy Show harm
The Structure of the Federal Courts The Supreme Court in Action
The “Supreme Court is a constitutional convention in continuous session” – Woodrow Wilson
Lawyers submit briefs Arguments in court ~ 30 minutes; questions from
justices Government is represented by the solicitor general
Voting patterns of the Court Fairly consistent positions Voting ‘blocs’ Complex factors of case Interpretation of laws
The Structure of the Federal Courts The Supreme Court Decision
Making Simple majority determines case If a tie, previous court decision
stands Majority opinion - expresses
view of majority Dissenting – expresses opinion
of minority Concurring – agrees with
majority but for different reasons Opinions are how the Supreme
Court communicates with public
The Structure of the Federal Courts The Power of the Federal Courts
The power to make policy Via interpretation of Constitution,
enforcement of laws By interpreting law are actually making
law Declaration of laws being Constitutional
or not Stare decisis – let the decision stand Courts take on matters once left to the
legislature More than 1000 state laws declared
unconstitutional More than 130 federal laws as
unconstitutional
The Structure of the Federal Courts Views of Judicial Activism
It is the courts responsibility to act when other branches haven't
Decisions have huge impact/on society The court should be restricted to constitutional outline
of authority – judicial restraint The justices are lawyers, not managers Special treatment for one group affects all groups
Legislation and the Courts When laws are vague, judges have greater power for
interpretation Some laws induce litigation Judges determine own role
Checks on Judicial Power Congress and the Courts
Check through appointments, confirmed by the Senate
Impeachment of judges Alter number of judges Can alter decision by amending
the Constitution Repass a law Decide what the entire
jurisdiction of the lower courts and the appellate jurisdiction of the Supreme Court shall be
Public Opinion and the Courts Aware of elite viewpoints Changing public/political
moods can affect kinds of remedies that judges think appropriate
Changes reflect appointees In the short run, justices aren’t
swayed by public as they were appointed by previous Presidents to life terms
In the long run, they reflect the views of the public who voted for the President who appointed them
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