Embed Size (px)
Citation preview
INSTITUTIONS OF GOVERNMENT
The 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 DepartmentsConduct broad areas of government operations
- responsible for implementing the policies and programs passed by Congress
Secretaries are the CEO’s of the departmentsRest of the departments are divided into
subdivisions, bureaus, and offices with specialized areas of work
Executive Department
Number of Employees Budget
Agriculture 109,000 $95 BillionCommerce 38,000 $6.5 BillionDefense 675,000/3 mil $665 BillionEducation 4,200 $68.6 Billion
Energy 16,000/100,000 $23 BillionHealth and Human Services 65,000 $800 Billion
Homeland Security 216,000 $42.7 Billion
Housing and Urban Development 9,000 $40 BillionInterior 68,000 $16 BillionJustice 115,000 $25 BillionLabor 15,000 $50 BillionState 32,000 $35 BillionTransportation 55,000 $70 BillionTreasury 109,000 $13 BillionVeterans Affairs 235,000 $90 BillionTotal 4.2 Million $2 Trillion
Four Types of Agencies2. Government Corporations
Provide a service that could be handled in the private sectorCharge for services but often less than private industryAmtrak, TVA, Post Office
3. Independent Regulatory CommissionsRegulate specific economic activities or interests Enforce rules and programs designed to protect the public interestGoverned by 5-10 member board of commissioners appointed by the
president and approved by senateFixed terms - cannot be fired NLRB, FEC, FCC, SEC, EPA, Federal Reserve Board
4. Independent Executive AgenciesProvide services, not regulationsNASA, National Science Foundation, CIA
The Bureaucrats Andrew Jackson and the Spoils System – Patronage 1883 – Pendleton Act – Civil Service System- Merit Based Merit Based:
Hiring based on exam scores, experience, or qualificationsPromotions based on skill, performance, and ratingsDesigned to ensure talented and skilled employees
Nonpartisan system of hiring:Not based on political ideology or friendship, based on meritDesigned to keep consistency in the execution of laws – insulated from
firing by new presidentHatch 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
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
Meant to separate politics from policy administration Assures continuity in Government
Iron Triangle v. Issue Groups Interest Groups, Congress, and Bureacracy 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 – 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 broadThe 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 FundingBody Armor in Iraq, 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 1980s- Savings 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 Independent agencies and regulatory
commissions – operate without involvement – hearings and administrative adjudication
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 agenciesAlter an agencies budget – appropriationsHold Congressional oversight hearings (standing
committees) to evaluate performanceCreate and abolish agencies – change agencies
functionsRewrite legislation to either change it or clarify to goals
of a policy Judicial:
Issue injunctions and rule on due process and civil rights
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, US Attorney) v. Defense Attorney
Class Action Suits
Structure of the Federal Court System 94 District Courts – Courts of Original Jurisdiction
Only federal courts to hold trials and have juries2 to 28 judges appointed per court depending on amount of trials –
usually only one judge presides over a caseHear 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)
Courts of Appeals – 12 judicial circuits6 to 28 judges appointed to each circuitUsually hear cases in panels of three judgesAll 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
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
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 Chief Justice may come from court or from outside Supreme Court nominees are a big part of a President’s legacy
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 – Majority vote to stop filibuster for executive
appointments to federal courts and bureaucracy (Does not impact cloture rules for bills or Supreme Court nominees)
20% of Presidential nominees have been rejected by the Senate There are currently 86 vacancies in federal courts, 49 Nominees are
pending confirmation
Supreme Court Justices Almost all have been white, male, protestant, all have been lawyers Today:
1 African American, 1 Hispanic, 3 Women6 Catholics (24%), 3 Jewish (2%)
Chief JusticeJohn RobertsC- 2005Antonin
ScaliaC- 1986
Anthony KennedyC - 1988Clarence
ThomasC- 1991
Ruth Bader GinsbergL- 1993
Stephen BreyerL- 1994
Samuel AlitoC- 2006Sonia
SotomayorL- 2009
Elena KaganL -2010
Judicial Philosophy Conservative v. Liberal – Size of Government, Freedom v.
Order, Strict v. Loose constructionists Conservatives: Roberts, Scalia, Thomas, Alito, (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 Court’s Decision to Hear Cases Over 8000 cases appeal to the SC every year- court usually hears between
80 and 100 Meet once a week to discuss potential cases – each justices 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
Writ of Certiorari – formal document that calls the case to the Supreme Court
Most cases are appellate jurisdiction - Substantial federal question Judicial Review – can review the constitutionality of lower court decisions,
state and federal laws, and executive orders – Marbury v. Madison 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 Stare Decisis – ‘let the decision stand’ – judicial precedent Doctrine of Original Intent (Judicial Restraint, Conservative)
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
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 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
Checks on the power of the Supreme Court Presidential Oversight
Makes appointments to the courtResponsible for implementing policy – how
strongly/quickly it will enforce Congressional Oversight
Approves appointmentsCongressional oversight of policiesPass new laws if one is ruled unconstitutionalAmendments to override Supreme Court Decisions Impeach JusticesChange the number of judges, number of courts, and
jurisdiction of courts
