Unit 5b Review Judiciary and Bureaucracy. The Idea of Judicial Review Only in the United States do judges play so large a role in policy-making *selecting

Unit 5b Review

Judiciary and Bureaucracy

The Idea of Judicial Review

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

*selecting judges is often a bitter conflict!

Judicial Review: the right of the federal courts to rule the constitutionality of laws and executive actions – Chief judicial weapon in the checks and balances

system – Since 1789, the Supreme Court has declared over

160 federal laws unconstitutional Development of the Courts

Debate: How should the Constitution should be interpreted?

• Strict Constructionist: judges are bound by wording of the Constitution

• Activist (Loose Constructionist): judges should look to underlying principles of Constitution

• Not a matter of liberal versus conservative -A judge can be both conservative and activist, or liberal and strict constructionist -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

Views of Judicial Activism

Supporters • Courts should correct

injustices when other branches or state governments refuse to do so

• Courts are the last resort for those without the power or influence to gain new laws

Critics • Judges lack experience in

designing and managing complex institutions

-schools, prisons, etc

• Initiatives require balancing policy priorities and allocating public revenues

• Courts are not accountable because judges are not elected

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

The Powers 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

Selecting Judges…• Senatorial courtesy – 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)

– 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

Structure of the Courts

Selecting Judges…• The “litmus test”– Litmus test: a test of ideological purity – Presidents seek judicial appointees who share their

political ideologies – 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.

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

– 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 11th Amendment of the Constitution

• Federal question cases: involving U.S. Constitution, federal law, treaties • Diversity cases: involving different states, or

citizens of different states


Jurisdiction of the Federal Courts Some cases can be tried in either federal or state court Example: if both federal and state laws have been broken (dual

sovereignty; the Rodney King case)Rodney King case: police officers tried in CA state court for

assault (acquitted). Then prosecuted in federal court for violating King’s civil rights (2 of 4 convicted)

Jurisdiction: each government has right to enact laws and neither can block prosecution out of sympathy for the accused

Some cases that begin in state courts can be appealed to Supreme Court

Supreme Court can overturn state rulings even when they had no jurisdiction over the original matter

Controversies between states/state courts can only be heard by SCStructure of the Courts

Three-Tiered Model

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Factors Affecting Confirmation • “Paper trail” = ideology• President’s popularity• Time remaining in President’s term • Demographics • Partisanship in Senate• Stance on “stare decisis”• Litmus test?• Overall competence


The Supreme Court Deterrents to the courts acting as democratic institutions • Supreme Court rejects all but a few of the applications for

certiorari (96% rejected!!) • Costs of appeal are high – Financial costs may be lowered

-In forma pauperis: plaintiff indigent, with costs paid by government (Like in Gideon)

-Indigent defendant in a criminal trial: legal counsel provided by government at no charge -Payment by interest groups (e.g. ACLU—usually liberal)

– Cost in terms of time is also high and cannot be mitigated

Supreme Court

The Supreme CourtStanding • Guidelines regarding who is entitled to bring a new

case -There must be a real controversy between adversaries - Personal harm must be demonstrated - Being a taxpayer does not ordinarily constitute entitlement to

challenge federal government action; this requirement is relaxed when the First Amendment is involved (Ex. tax $ used for religious school)

• Sovereign immunity - Government must consent to being sued (usually have to show

harm)- By statute, government has given its consent to be sued in

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

Supreme Court

The Supreme CourtClass-Action Suits • Brought on behalf of all similarly situated persons • Number of class-action suits increased because there

were financial incentives to bring suit and because Congress was not meeting new concerns

• In 1974, Supreme Court tightened rules on these suits for federal courts, though many states courts remain accessible – Ex. Must notify every person involved in the suit

• Big class-action suits affect how courts make public policy (ex.: asbestos, silicone breast implants)

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)

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

Supreme Court

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

Checks on Judicial PowerCongress and the Courts

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

• Changing the number of judges, giving president more or less appointment opportunities (court-packing)

• Supreme Court decisions can be undone • Revising legislation • Amending the Constitution • Altering jurisdiction of the Court • Restricting Court remedies


Checks on Judicial PowerPublic Opinion and the Courts • Defying public opinion frontally may be

dangerous to the legitimacy of the Supreme Court, especially elite opinion

• Opinion in realigning era may energize court – The most activist periods coincide with changes to the

political system

• Public confidence in the Supreme Court since 1966 has varied with popular support for the government, generally


Distinctiveness of the American Bureaucracy – Political authority over the bureaucracy is shared

by president and Congress – Federal agencies share functions with related

state and local government agencies (only some deal directly with citizens Ex. IRS)

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

Ex. Everything the EPA does gets challenged

Scope of Bureaucracy 1. Little public ownership of industry in the U.S. 2. High degree of regulation of private industries in the U.S.

The Bureaucracy

The Growth of the Bureaucracy• Officials affect how laws are interpreted, tone and effectiveness of

administration, party strength • Patronage in nineteenth and early twentieth centuries rewarded

supporters, induced congressional support, built party organizations

*later brought calls for reform• Civil War= bureaucratic growth; it showed the administrative

weakness of federal government and increased demands for civil service reform

• 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

Bureaucracy: A Service Role• 1861-1901: new agencies primarily performed service

roles (research, gather stats, dispense land and benefits)

• Why?• Valued limited government, states’ rights• Feared concentrated power• Laissez-faire philosophy (promote, don’t regulate)• Supreme Court held that the Constitution only gave

executive agencies power to apply laws passed by Congress (not create their own regulatory power)**Constitution gave Congress power to regulate commerce

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

The Bureaucracy

A Change in Role… Why?• Public attitudes – WWII- increase necessity for taxes for military

preparedness– Depression- government should take an active role in social

problems• Change in constitutional interpretation– Supreme Court upheld laws that granted discretion to

administrative agencies • Heavy use of income taxes supported war effort and a

large bureaucracy • 9/11 attacks could also affect bureaucracy as

profoundly as WWII and the Depression• New cabinet agency (Department of Homeland Security) was created • Consolidation of intelligence-gathering activities under National

Intelligence Director The Bureaucracy

The Federal Bureaucracy Today • Direct and indirect growth Modest increase in number of government employees Significant indirect increase in number of employees through use of

private contractors, state and local government employees

• Growth in discretionary authority – ability to choose courses of action and to make policies not set out in the statutory law

(more discretionary authority = more power) Delegation of undefined authority to Congress greatly increased Primary areas of delegation of authority from Congress

1. Subsidies to groups and organizations 2. Grant-in-aid programs, transferring money from national to state and

local governments 3. 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)• Appointments by merit based on written exam or through

selection criteria • Competitive service system has become more decentralized, less

reliant on OPM. WHY?:

1. OPM system is cumbersome and not geared to department needs

2. Agencies need professionally trained people 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 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

• Pendleton Act (1883): changed the basis of government jobs from patronage to merit

• 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.


Recruitment and Retention

4. Firing a bureaucrat – Most bureaucrats cannot be easily fired, although there are

informal methods of discipline (transfers, meaningless work)– Senior Executive Service (SES) was established to provide the

president and cabinet with more control in personnel decisions • But very few SES members have actually been fired or

even transferred, and cash bonuses have not been influential


Personal Attributes • Includes social class, education, political beliefs • Allegations of critics are based on the fact that political

appointees and upper-level bureaucrats are unrepresentative of U.S. society and the belief that they have an occupational self-interest

• Bureaucratic Ideology– Bureaucrats are somewhat more liberal or conservative, depending on the

appointing president, than the average citizen– Bureaucrats do not take extreme positions

• Correlation between the type of agency and the attitudes of the employees– Activist agency bureaucrats tend to be more liberal (FTC, EPA, FDA)– Traditional agency bureaucrats tend to be less liberal (Agriculture,

Commerce, Treasury)– Bureaucrats’ policy views reflect the type of work that they do The Bureaucracy Part II

Constraints General constraints • Administrative Procedure Act (1946)-must hold hearings

for new rule• Freedom of Information Act (1966)-right to inspect non-

secret records• National Environmental Policy Act (1969)-must issue

environmental impact statement• Privacy Act (1974)- personal files must be confidential

(ex. SS)• Open Meeting Law (1976)- unless military or trade secretSeveral agencies are often assigned to a single policy


Effects of Constraints • Government moves slowly • Government sometimes acts

inconsistently • Easier to block action than take action • Reluctant decision making by lower-

ranking employees • Red tape –complex rules/procedures

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


Major problems with Bureaucracies

• Again: Red tape • Conflict – Exists when agencies work at cross-purposes• Duplication– When agencies do the same things • Imperialism – Tendency of agencies to grow without regard to the

benefits their programs confer or the costs they entail • Waste – Occurs when an agency spends more than is

necessary for a product or service

ALL ARE HARD TO CORRECT!!


Major problems with Bureaucracies: Why?

• Red tape: keeps large organizations operating smoothly, also satisfies legal/political requirements

• Conflict and Duplication: Congress sets up agencies to achieve a number of goals which end up overlapping

• Imperialism- goals are vague and difficult to measure…hard to tell when they’ve reached it (so they just keep going)

• Waste: no incentive for agency to cut waste• Use it or lose it!• Must buy American, hire unions etc.

Congressional Oversight

Agency Allies • Agencies often seek alliances with congressional

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

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

competing forces – Courts have also granted more access

• Issue networks: groups that regularly debate government policy on certain issues – Contentions – split along partisan, ideological, economic lines – New presidents often recruit from sympathetic issue networks


Forms of Congressional Supervision

• Congress creates agencies – Influences agency behavior by statutes it

enacts • Congress authorizes funds for programs – Allows program to exist– Done by legislative committee

• Congress appropriates money– Always done by House Appropriations Com.– Funds can’t be spent until appropriated,

usually for less than authorizedCongressional Oversight

The Appropriations Committee & Legislative Committees

• Appropriations Committee may be the most powerful– Most expenditure recommendations are approved by House – Tends to recommend an amount lower than the agency

requested – Has power to influence an agency’s policies by “marking up” an

agency’s budget

• But becoming less powerful • Trust funds operate outside the regular government budget

and are not controlled by the appropriations committees – (Social Security being the largest)

• Annual authorizations allow the legislative committees greater oversight (they can set limits on authorizations before Appropriations com. sets appropriations)• Budget deficits have necessitated cuts Congressional Oversight

The Legislative Veto

• Definition: authority of Congress to block a presidential action (Congress vetoes executive order)

• Declared unconstitutional by Supreme Court in Chadha (1983)

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

• However, Congress still passes laws that contain legislative vetoes.– They will stand until challenged in court

Congressional Oversight

Important!

• Congressional oversight of the bureaucracy• Problems with bureaucracy• Uniqueness of Supreme Court- different than

other 2 branches– but public opinion still matters…why?

• Supreme Court appointments- how and why

Documents

Unit 5b Review Judiciary and Bureaucracy. The Idea of Judicial Review Only in the United States do judges play so large a role in policy-making *selecting