UNIT 3: INSTITUTIONS OF TheGOVERNMENT Bureaucracy and the Courts The Federal Bureaucracy Bureaucracy = hierarchical structure that uses task specialization, operates on the merit principle, and
behaves with impersonality Fourth Branch of Government (Executive Branch) Thousands of federal agencies and institutions that implement and administer federal laws and programs implementers of policy Bureaucrats: government employees who work in the executive branch in executive departments and independent federal agencies 2000 bureaus, divisions, branches, offices 2.7 million federal civilian workers Four Types of Agencies 1. Cabinet/Executive Departments 15 Executive Departments Conduct broad areas of government operations - responsible for implementing the policies and programs passed by Congress and advising the
President Secretaries are the CEOs of the departments (except Attorney General and DOJ) Rest of the departments are divided into subdivisions, bureaus, and offices with specialized areas of work Executive Department Agriculture Commerce Defense Education Energy Health and Human Services Number of
4.2 Million Four Types of Agencies 2. Government Corporations Provide a service that could be handled in the private sector Charge for services but often less than private industry Amtrak, TVA, Post Office 3. Independent Regulatory Commissions Regulate specific economic activities or interests Enforce rules and programs designed to protect the public interest Governed by 5-10 member board of commissioners appointed by the president and approved by senate Fixed terms - cannot be fired NLRB, FEC, FCC, SEC, EPA, Federal Reserve Board 4. Independent Executive Agencies
Provide services, not regulations Often things that are not profitable in the private sector NASA, National Science Foundation, CIA The Bureaucrats Bureaucrats are the civilian employees in the federal bureaucracy Andrew Jackson and the Spoils System Patronage 1883 Pendleton Act Civil Service System- Merit Based Merit Based: Hiring based on exam scores, experience, or qualifications Promotions based on skill, performance, and ratings Designed to ensure talented and skilled employees
Nonpartisan system of hiring: Not based on political ideology or friendship, based on merit Designed to keep consistency in the execution of laws insulated from firing by new president Hatch Act 1939 Civil Service employees may not engage in political activities while on duty, when off duty they may not run for elected office or solicit contributions The Bureaucrats Three Methods Today: 1. Competitive Service- Office of Personal Management Civil Service Exam- OPM suggest three candidates and the agency hires one
now about 50%, used to be 85% 2. Excepted Service Hired directly by agencies without civil service exam CIA, FBI, Post Office have their own selection process 3. Presidential Appointment Plum Book about 500 top positions and 2500 lesser positions General Schedule Rating (GS 1-18) GS 1- 15 - Career bureaucrats very hard to fire, often just moved around instead (independence and consistency) GS 16-18 Senior Executive Service much easier for the president to remove or reassign (9000) Today represent cross-section of American society, Civil Rights Legislation
How The Bureaucracy Works Two main jobs: 1. Implementation: translating the goals of a policy to an operational program, Congress announces goals in broad terms the bureaucracy works out the details - President issues executive order either instructing an existing agency to carry out the law or creates a new agency to do so - Agency sets up rules and guidelines for the program following executive order, coordinates resources and materials needed to implement, hires necessary employees - Designed to help the President carry out laws; Assistance in instituting public policy - i.e. Head Start and Department of Health and Human Services, Clean Air Act Environmental Protection Agency How The Bureaucracy Works 2. Regulation: Use of government authority to control or
change some practice in the private sector Quasi-judicial hearings for those in violation Administrative adjudication Security and Exchange Commission Regulates the Stock Market Federal Reserve Sets interest rates USDA and FDA Food Safety FCC Communications Purpose of Bureaucratic Independence: Separates politics from policy administration Assures continuity in Government Provides expertise and experience Iron Triangle v. Issue Groups
Interest Groups, Congress, and Bureaucracy all work together to design and implement laws two theories Iron Triangle or Subgovernments composed of congressional committee, bureaucratic agency, and interest group work to design implementation and regulation of programs for a specific area Interest groups provide money, resources and information to Bureaucratic Agency and Congressional Committee In return they hope for favorable legislation from Congress and favorable regulations from the Bureaucracy (i.e. - Commerce Committee, NLRB, and AFL) Issue Groups/networks informal network of various interest groups and public officials who work to address a single public policy issue more common today because so many different interest groups with
different concerns have worked to break up power of iron triangles Emergence of Civil Rights and Environmental Groups Broker State Problems with implementation Faulty Program Design sounds good politically, impossible to implement Lack of Clarity in Congressional Policy Goals Often too broad The Federal Voting Rights Act specified that areas that have a significant minority who speak a language other than English must be given ballots in the other language. This is why federal bureaucrats, on behalf of the Lumbee Indians, ordered three counties of North Carolina to print ballots in Lumbee. The only trouble is there is no Lumbee language. There was once, but the Lumbees abandoned it
when white settlers moved into the area. The beleaguered North Carolina officials considered applying for a federal grant to invent a new Lumbee language and teach it to the Lumbees. Lack of Resources and Funding Secure Fence Act, FDA, ICE Problems with implementation Standard Operating Procedures and Red Tape meant to ensure fair implementation but often become obstacles to action Takes SSA 1 year to process disability request The Environmental Protection Agency managed to reduce one of its forms to a single page. But it had to provide a 90-page instruction book for filling out the form.
Administrative Discretion Welfare Agents street level bureaucrats Fragmentation several departments and agencies responsible to carry out policy OSHA ordered a Massachusetts supermarket to put a nonskid floor in its workplace. The Agriculture Department made the market take it out again, and put in a tile floor for sanitation. Counterterrorism 46 Federal agencies (9/11 and DHS) - CIA, Air Force, NSA, FBI, FAA, INS, TSA Welfare 10 different departments and agencies Problems with Regulation Raises Prices cost of regulations is passed on to the
consumer (companies must spend money to meet regulations environment, work conditions) Hurts Americas competitive position abroad other countries have less regulations for worker safety and environmental protection Difficult to enforce License, complaints, inspectors Do not always meet desired goals Movement towards deregulation lifting government restrictions on business, industry, and the professions Reagan 1980sSavings and Loans Crisis, George W. Bush 43 2007 Real Estate Market Collapse Problem with both implementation and regulation: Bureaucrats are not elected and yet do the most actual governing - but who else could? Bureaucratic
Independence Public Policy is complex too much for Congress and President to handle need expertise give authority to bureaucracy Discretionary Authority fills in details in legislation broad goals Merit based employment and tenure hard to fire Independent agencies and regulatory commissions operate without involvement hearings and administrative adjudication fixed terms
Executive Control of the Bureaucracy Appoint people who agree with them politically to head up agencies and departments - Career Bureaucrats follow their directives Issue Executive Orders used to implement statutes(laws), treaties, and provisions of the constitution Alter the budget of an agency OMB Reorganize an agency or department - DHS
Legislative and Judicial Control of the Bureaucracy Legislative: Approve Presidential appointments to head up agencies Alter an agencies budget appropriations Power of the Purse Hold Congressional oversight hearings (standing committees) to evaluate performance Media exposure Rewrite legislation to either change it or clarify to goals of a policy Judicial: Issue injunctions and rule on due process and civil rights
Review decisions of the IRCs The Budget Process Responsibility for the budget is an enumerated power of Congress according to Article I however the Presidents role in creating and approving the budget has grown Budget Process: Federal Agencies (bureaucracy) send budget requests to OMB OMB creates budget and President presents Reviewed and revised by House Ways and Means Committee, Senate Finance Committee, Appropriations Committees, CBO, and GAO Congress Votes, President signs or vetoes Government Shutdowns Partisanship and Divided Governmnet
Continuing Resolutions: when congress and/or the president cannot reach an agreement on the budget, this allows agencies to continue to spend at the level of the previous year for a certain amount of time Incrementalism: Most agency budgets increase slightly each year stays about the same Pork Barrel Additions of local projects - the use of government funds for projects designed to please voters or legislators and win votes; also called earmarks 2011 Moratorium, 2018 Bipartisan Budget act did not extend 2018 - $14.7 Billion The Budget
Mandatory Expenditures Pensions, Social Security, Farm subsidies Entitlements (65%) Discretionary Spending Military, infrastructure, education Budget Deficit ($779 Billion - 2018) and National Debt ($21 Trillion) Budget Control Act of 2011 Can you fix the budget? Go to www.crfb.org/debtfixer/ Follow the instructions on the screen to create your own budget that reduces the debt Once done answer the following questions. 1. Were you successful in reducing the debt by the amount
2. 3. 4. 5. suggested? What are your 2029 and 2050 percentages at the end? What categories did you get most of your savings in? Where did you increase spending? Did you increase or decrease overall revenue (taxes)? Did you find this process to be difficult? How did you decide what to cut and/or increase? How did you decide what to do with taxes? What advice do you have for government officials after completing this process? Courts in the United States
Three tiers at both state and federal levels Trial Courts (Court of Original Jurisdiction) hear the actual facts of the case 90% of cases end here Appellate Courts (Appellate Jurisdiction) review the legal issues (not the facts) to determine if an additional trial is needed one side must request appeal State/Federal Supreme Court Court of Last Resort Cases can either be criminal or civil Participants are called litigants plaintiff v. defendant (Criminal cases plaintiff is the city, state, or federal government) Lawyers represent both sides Prosecutor (District Attorney, State Attorney, US Attorney) v. Defense Attorney Class Action Suits
Generally courts at the state and federal level operate separately unless the federal courts review a state decision based on a constitutional issue Structure of the Federal Court System The Constitutions Article III says very little about either the structure or the power of the Federal Court System. The structure and size of all courts are created by Congress Jurisdiction of the court has developed through judicial precedent 94 District Courts Courts of Original Jurisdiction Only federal courts to hold trials and have juries 2 to 28 judges appointed per court depending on amount of trials usually only one
judge presides over a case Hear cases involving federal crimes, federal lawsuits, bankruptcy, maritime law, naturalization (most criminal and civil trials at local and state level) Governments side is represented by US Attorney in that district (appointed by the President) Circuit Courts of Appeals 12 judicial circuits 6 to 28 judges appointed to each circuit Usually hear cases in panels of three judges All appeals from district courts plus review and enforce orders from federal regulation agencies (bureaucracy) Focus on correcting errors of procedure and law hold no trials and hear no testimony United States Supreme Court
United States Supreme Court Eight Associate Justices and One Chief Justice Each justice can hire up to four clerks All nine hear all cases unless one recuses him/herself Supreme Court decides which cases it will hear Supreme Court is the Court of Original Jurisdiction in matters cases involving foreign diplomats/countries, between the US and a state, between two or more states Article III
Most cases the Supreme Court is the court of last resort on appeals from either a US Court of Appeals or a State Supreme Court Case must involve a substantial federal question does not hear cases involving state laws or criminal procedures i.e. constitutional matters, commerce clause, civil rights Judicial Review can review the constitutionality of lower court decisions, state and federal laws, and executive orders - Marbury v. Madison, Federalist No. 78 Supreme Court Justices Almost all have been white, male, protestant, all have been lawyers Today: 1 African American, 1 Hispanic, 3 Women Chief Justice John Roberts
Clarence C- 2005 Neil Gorsuch C- 2017 Sonia Sotomayor L- 2009 Stephen Breyer L- 1994 Thomas C- 1991 Ruth
Bader Ginsberg L- 1993 Samuel Alito C- 2006 Elena Kagan L -2010 Brett Kavanaugh C - 2018
Life Tenure for Federal Judge All federal judges hold their office for life (during good behavior) Federalist 78 Hamilton argues for the power of judicial review and explains lifetime tenure of judges Why give lifetime tenure? 1. Provides the strength and independence necessary to stop the encroachment of the other branches independent spirit in necessary for this task cannot be overpowered by the other branches 2. Safeguards against ill humors in society Allows the courts to protect the minorities from oppression by the majority not beholden to a majority like the other branches 3. If appointments were temporary judges will try to please those that appoint them (Executive, Legislature) or those who elect them (people) would influence their decision
4. There are simply few men in society who have the integrity, the knowledge, and the skill for these positions the voluminous code of laws and court precedents that need to be understood in order to make the right decisions disqualifies many men Federal Judicial Nominations Presidents want to choose judges whose political philosophy matches their own Democrats Liberal, Republicans - Conservative District and Appellate Courts Senatorial Courtesy Senate will not confirm a nominee if the Senator from that district/circuit is the same party as the president and objects therefore Senators from the same party have a large say in who is nominated informal tradition Since appellate circuits are usually in more than one state, President has more say but will still take recommendations from Senators from those states
Supreme Court President makes decision for nominee alone considers judicial philosophy, qualifications, and ability to confirm Chief Justice may come from court or from outside Supreme Court nominees are a big part of a Presidents legacy life terms In all cases, candidates are reviewed by the DOJ, FBI, and ABA and given a rating (highly qualified, qualified, not qualified) by all three Litmus Test increasingly important to presidents that nominees not only be qualified but also reflect the political and judicial philosophy of the President i.e. abortion
Federal Judicial Confirmation Senate Judiciary Committee holds hearings on all nominees Nominees complete a long complex questionnaire about their career, rulings, writings, associations, etc. Nominees are questioned by the committee Committee votes on whether or not to recommend either way the nominee gets a vote in the full Senate Entire Senate votes to confirm majority Historically this was the easy part, judges often confirmed very quickly once approved by Judiciary Committee Today - opposition party often filibusters
Cloture end filibuster, 60 votes needed, this means that judges and justices in reality need 60 votes, not a majority to get confirmed Nuclear Option November 2013 Harry Reid - Majority vote to stop filibuster for executive appointments to federal courts and bureaucracy (Does not impact cloture rules for bills or Supreme Court nominees) 113th Congress confirmed 134/152 appointments Record 114th Congress 22/130 Confirmed. Also a record for the fewest April 2017 Neil Gorsuch and the Nuclear Option 20% of Presidential nominees have been rejected by the Senate There are currently 149 vacancies in federal courts, 60 Nominees are pending confirmation Judicial Philosophy Conservative v. Liberal Size of Government, Freedom v.
Order, Strict v. Loose constructionists Conservatives: Roberts, Thomas, Alito, Gorsuch, (Kennedy Swing Vote) Liberals: Breyer, Ginsberg, Sotomayor, Kagan Judicial Restraint v. Judicial Activism Restraint philosophy in which judges play minimal policy-making role; defer to the decisions made by elected representatives of the people in the legislative and executive branches Activism philosophy in which judges make bold policy decisions; judges should use the law to promote justice, equality, and personal liberty; take an active role in using its powers to check the actions of Congress, legislatures, the executive branch and agencies
Supreme Courts Decision to Hear Cases Over 8000 cases appeal to the SC every year- court usually hears between 80 and 100 95% get rejected Meet once a week to discuss potential cases each justice reviews a share of cases and then determines whether or not to bring them up as a potential case to hear - discuss list (30%) Rule of Four If four justices want to hear a case it will be heard
Cases are more likely to be heard if: Fit policy interests of the justices - Agenda Setting Brought to the court by the Solicitor General (high ranking member of DOJ responsible for representing the government at the Supreme Court) There are many amicus curiae briefs from many interest groups and it is on the peoples agenda Writ of Certiorari formal document that calls the case to the Supreme Court Most cases are appellate jurisdiction - Substantial federal question Rejection of a case can sometimes be as telling as accepting a case (means the court confirms the lower courts decision)
Supreme Court Decisions Write approximately 80 formal decisions a year and a few dozen by per curiam (decision without written explanation) Hears cases from the first Monday in October until late June Before hearing case both sides file briefs outlining the facts of case and pertinent case history, Other interested parties (government, corporations, interest groups) file amicus curiae briefs Justices review all this before case (clerks help) Oral Arguments lawyer representing each side is given 30 minutes questioned by the justices Conference justices meet in conference to discuss the case and issue votes Liberal v. Conservative Stare Decisis let the decision stand judicial precedent Doctrine of Original Intent (Originalists - Conservative) Judicial Restraint v. Judicial Activism
Opinions statements of legal reasoning behind decisions Majority Opinion- CJ either writes or appoints if in majority, if not most senior justice writes or appoints Dissenting Opinion, Concurring Opinions Opinions are circulated and revised Final Vote and Announcement Judicial Implementation
Once decisions are made they must be implemented - Courts have to rely on the other branches of government to do this How rapidly and how well they are implemented depends on the support of the President, Congress, and State Governments Interpreting Population - Judges and lawyers must understand ruling Stare Decisis and precedent Implementing Population must understand the decision and find a way to implement can be a large population schools (Engel, Brown), Police (Miranda) depends on support of bureaucracy and state governments Consumer Population the people the decision affects must know about the decision and demand the effects/rights it implies
Checks on the power of the Federal Courts Presidential Oversight Makes appointments to the court Responsible for implementing policy how strongly/quickly it will enforce- bureaucracy refuse to enforce controversial or unpopular decisions Pardons and Reprieves Congressional Oversight Approves appointments Congressional oversight of policies Pass new laws if one is ruled unconstitutional or create new laws to limit impact of unpopular or controversial decisions
Amendments to override Supreme Court Decisions Impeach Justices Change the number of judges, number of courts, and jurisdiction of courts Supreme Court and Public Opinion Generally the SC is considered the most independent branch, removed from pressures of the public and politics Supreme Court is insulated from public opinion Appointed not elected Serve life terms Control their own docket and agenda Limited media access to Supreme Court Hearings
How Public Opinion does affect the Supreme Court Appointment and Confirmation Process justices outside public opinion will not be nominated or confirmed interest groups Generally will not go against a public consensus Public Officials must execute their decisions Congress can write new laws to overcome unpopular decisions Amendments can overturn SC decision Congress can change jurisdiction and number of justices if too far from public opinion Reputation of individuals and the court Supreme Court Eras
1789 through Civil War Balance of Power between the Federal and State Governments Civil War through New Deal Role of the Government in the Economy New Deal through Present Civil Rights and Personal Freedoms, Social and Political Equality
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