Unit 4 Review The Four Institutions The Four Institutions THE CONGRESS The founding fathers intended for Congress to be the central policy-making body in the federal government. Although the power of Congress has fluctuated over the years, today it shares with the presidency and the judiciary the responsibility of making key policy
decisions that shape the course of the nation. The Congress THE PEOPLES INFLUENCE The Peoples Influence (DW) Although the founders saw Congress as the body most directly in touch with the people, most people today have negative overall views of both houses. Approval ratings have hovered for years at about 30%, although in recent years those ratings have climbed somewhat higher. Yet the majority of voters express higher approval ratings (60 to 70%) for
the members of congress from their districts. (DW) Members of Congress are seen as working for their constituents, but Congress as a whole supposedly represents the nation as a whole. These seemingly contradictory expectations create different pressures on members of Congress. Constituents Views Members of congress often visit their home districts and states to keep in touch with their constituents views. They also read their mail, keep in touch with local and state political leaders, and meet with their constituents in Washington.
Some pay more attention than others, but they all have to consider the views of the folks back home. Party Views Congress is organized primarily along party lines, so party membership is an important determinant of a members vote. Each party develops its own versions of many important bills, and party leaders actively pressure members to vote according to party views. It is not surprising that representatives and senators vote along party lines about three-fourths of the
time. Personal Views What if a representative or senator seriously disagrees with the views of his constituents on a particular issue? How should he or she vote? Those who believe that personal views are most important argue that the people vote for candidates that they think have good judgment. Representatives should feel free to exercise their own personal views. After all, if the people dont like it, they can always vote them out of office
The Congress CONGRESS IN THE CONSTITUTION At its creation in 1789 the legislative branch was a unique invention. Rule by kings and emperors was an old style of government, and the legislature in many ways represented the new. Almost certainly, the founders intended that Congress have more important powers than they granted to the president and the judiciary. However, they placed many checks and balances on the legislature that have shaped what we have today.
They controlled power not only by checks from the other branches, but by creating a bicameral (two-House) Congress the Senate and the House of Representatives. The powers of Congress are both constitutional and evolutionary. Structure of Congress Originally, the Constitution provided for members of the House of Representatives to be elected directly by the people and the Senate to be chosen by the legislatures of each state. The membership of the House was based on population with larger states having more
representatives, and the Senate was to have equal representation, two senators per state. In 1913 the 17th amendment provided for direct election of senators A representative was required to be 25 years old, seven years a citizen of the United States, and a citizen of the state represented. A representative's term was set at two years. A senator served a six year term and was to be at least 30 years old, nine years a citizen, and a citizen of the state represented. The number of terms either representatives or
senators could serve was not limited. The original number of representatives was 65; in 1911, the size was limited to 435. Representatives are reapportioned among the states every ten years after the census is taken.
Constitutional Powers The powers of Congress are defined in Article I, section 8 of the Constitution: To lay and collect taxes, duties, imports, and excises
To borrow money To regulate commerce with foreign nations and among the states To establish rules for naturalization and bankruptcy To coin money To fix the standard of weights and measures To establish a post office and post roads To issue patents and copyrights To create courts (other than the Supreme Court) To define and punish piracies To declare war To raise and support an army and navy To provide for a militia To exercise exclusive legislative powers over the District of Columbia and other
federal facilities In addition the "elastic" clause (also called the necessary and proper clause) allowed the government to "make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States." The Constitution also gives each house of Congress some special, exclusive powers. Such powers given to the House of Representatives are:
Revenue bills must originate in the House of Representatives. Although this power is still honored today, it tends to have blurred over the years. Often budget bills are considered simultaneously in both houses, and tax policy has also become a major initiative of the President. Impeachment power, the authority to charge the president, vice president, and other civil officers with high crimes and misdemeanors is given to the House. The Senate conducts trials for impeachment, but only the House may make the charge. Special, exclusive powers given to the Senate are Major presidential appointments must be confirmed by the Senate. The Senate offers advice and consent to the
president by a majority vote regarding the appointments of federal judges, ambassadors, and Cabinet positions. Treaties with other nations entered into by the President must be approved by a two-thirds vote of the Senate. This provision is an illustration of checks and balances, and it has served as a very important restriction to foreign policy powers of the American President. Constitutional Differences House Initiates all revenue bills Senate
Must confirm many major presidential appointments Tries impeachment officials Initiates impeachment procedures and passes articles of impeachment Two-year terms Six-year terms (One-third up for reelection every two years) 453 members (apportioned by 100 members (two from each population) state)
Members at least 25 years of Senators at least 30 years of age, 7 years a citizen age, 9 years a citizen Approves treaties
Evolutionary Powers The elastic (or necessary and proper clause) gives Congress the authority to pass laws it deems necessary and proper to carry out its enumerated functions. Many congressional powers that have evolved over the years are based on this important clause. Two important evolutionary powers are: Oversight of the budget. Congress reviews and restricts the annual budget prepared by the executive branch. When a law is passed setting up a government program, Congress must pass an authorization bill that states the maximum amount of money available. When the nations budget is set, only Congress can set the appropriations the actual amount available in a fiscal year for each program that it has authorized. Investigation. Congress may investigate both issues that warrant study and wrong
doings by public officials. Through committee hearings, Congress has examined issues such as crime, consumer safety, health care, and foreign trade. Although Congress must abide by protected individual rights, their committees have examined many allegations against elected officials. Famous recent investigations include the Watergate and the Clinton-Lewinsky hearings. The Congress LEADERSHIP Political parties are very important in both the House of Representatives and the Senate today. Even though political parties dont play as big a role in elections as they once did,
they still provide the basic organization of leadership in Congress. After each legislative election the party that wins the most representatives is designated the majority in each house, and the other party is called the minority. Usually, the same party holds both houses, but occasionally they are split. For example, from 1983-85, the House majority was Democratic and the Senate majority was Republican. The split happened again in 2001, when an evenly divided Senate became Democratic when Senator Jim Jeffords dropped his affiliation with the Republican Party to become an independent. These designations are important because the majority party holds the most significant leadership positions.
Leadership in the H.O.R The Speaker of the House is the most important leadership position in the House. This office is provided for in the Constitution, and even though it says "The House of Representatives shall choose their Speaker and other Officers," in truth the majority party does the choosing. Before each Congress convenes the majority party selects its candidate, who almost always is the person selected. The Speaker typically has held other leadership positions and is a senior member of the party. (DW) Around the turn of the century, the Speaker was all powerful, especially under the leadership of Joe Cannon and Thomas Reed. A
revolt by the membership in 1910 gave some of the Speaker's powers to committees, but the Speaker still has some important powers: recognizing members who wish to speak ruling on questions of parliamentary procedure appointing members to select and conference committees
directs business on the floor exercising political and behind-the-scenes influence appointing members of the committees who appoint members to standing committees exercising substantial control over which bills get assigned to which committees appointing the party's legislative leaders The Speaker's most important colleague is the majority leader, whose position is often a stepping-stone to the Speaker's position. The majority leader is responsible for scheduling bills and for rounding up votes for bills the party favors. The minority leader is the spokesperson for the minority party,
and usually steps into the position of Speaker when and if his or her party gains a majority in the House. Assisting each floor leader are the party whips, who serve as gobetweens for the members and the leadership. They inform members when important bills will come up for a vote, do nosecounts for the leadership, and pressure members to support the leadership. Leadership in the Senate The Senate is characterized by its highest positions actually having very little power. By Constitutional provision, the president of the Senate is the vicepresident of the United States. A vice-president can vote only in case of a tie and seldom attends Senate sessions. The Senate selects from among the majority party a largely ceremonial president pro tempore, usually the most senior member in the party. The president pro tempore is the official chair, but since the job has no real powers, the job of
presiding over the Senate is usually given to a junior senator. The real leaders of the Senate are the majority leader and the minority leader. The Senate majority leader is often the most influential person in the Senate, and has the right to be the first senator heard on the floor. The majority leader determines the Senate's agenda and usually has much to say about committee assignments. T he majority leader may consult with the minority leader in setting the agenda, but the minority leader generally only has as much say as the majority leader is willing to allow. The Senate also has party whips that serve much the same functions as they serve in the House. COMMITTEES AND SUBCOMMITTEES:
CONGRESS AT WORK Most of the real work of Congress goes on in committees and subcommittees. Bills are worked out or killed in committees, and committees investigate problems and oversee the executive branch. Types of Committees Standing committees are the most important type because they handle bills in different policy areas, thus shaping legislation it a very critical point. The Senate and the House have separate standing committees: the Senate currently has 16 and the House has 19. The numbers may fluctuate slightly, but they tend to "stand" for a long
time. Select committees are formed for specific purposes and are usually temporary. A famous example is the select committee that investigated the Watergate scandal. Other select committees, like the Select Committee on Aging and the Select Committee on Indian Affairs, have existed for a number of years and actually produce legislation. Sometimes long-standing select committees eventually become standing committees. Types of Committees Joint committees have similar purposes to select committees, but they consist of members from both the House and Senate. They are set up to conduct business between the houses and to
help focus public attention on major issues. They investigate issues like the Iran-Contra affair in the 1980s, and they oversee institutions such as the Library of Congress. Conference committees also consist of members from both the House and Senate, but they are formed exclusively to hammer out differences between House and Senate versions of similar bills. A bill goes to a conference committee after it has been approved in separate processes in the two houses, and a compromise bill is sent back to each house for final approval. Work of Committees More than 11,000 bills are introduced in the House and Senate over the two-year life span of a Congress, and all of
them cannot possibly be considered by the full memberships. Each bill is submitted to a committee that has life or death control over its future. The majority of bills are pigeonholed, or forgotten for weeks or forever, and never make it out of committee. They are submitted to a subcommittee that will discuss them and possibly hold hearings for them. (DW) About 3000 staff assist the various committees and subcommittees, conducting research and administrative and clerical work. Supporters and critics of the bill appear at the hearings and are questioned by subcommittee members. The bills that survive this far into the process are then marked up (changed or rewritten) and
returned to the full committee where they may be altered further. If the committee approves a bill, it will then be sent first to the Rules Committee in the House, and then to the floor. The bill is sent directly to the floor in the Senate Committee membership Committee membership is controlled by the parties, primarily by the majority party. The chairman and a majority of each standing committee come from the majority party. The remaining committee members are from the minority party, but they are always a minority on the committee.
In the House of Representatives, a Committee on Committees places Republicans on committees, and the Steering and Policy Committee selects the Democrats. In the Senate, each party has a small Steering Committee that makes committee assignments. Assignments are based on the personal and political qualities of the member, his or her region, and whether the assignment will help reelect the member. Getting on the right committee is very important to most members of Congress. A member from a "safe" district whose reelection is secure
may want to serve on an important committee that promotes a power base in Washington. On the other hand, a member who has few ambitions beyond his or her current position and whose reelection is less secure may want to serve on a committee that suits the needs of constituents. (DW) For example, a less secure representative from rural Kansas may prefer to serve on the Agriculture Committee. COMMITTEE CHAIRMEN Committee chairmen are the most important shapers of the committee agenda. (DW) Their positions were made more powerful in the House by the
1910 revolt which transferred power from the Speaker to the chairmen. From 1910 until the early 1970s, chairmen were strictly chosen by the seniority system, in which the member with the longest continuous service on the committee was placed automatically in the chairmanship. (DW) In the early 1970s, the House decided to elect committee chairmen by secret ballots from all the majority members. As a result, several committee chairmen were removed, and although most chairmen still get their positions through seniority, it is possible to be removed or overlooked. THE RULES COMMITTEE IN THE HOUSE
The Rules Committee in the House of Representatives plays a key role in shaping legislation because it sets very important rules for debate when the bill is presented to the House after it leaves the committee. A closed rule (sometimes called a gag rule) sets strict time limits on debates and forbids amendments from the floor, except those from the presenting committee. Under closed rule, members not on the committee have little choice but to vote for or against the bill as it is. An open rule permits amendments and often has less strict time limits, allowing for input from other
members. The Rules Committee is controlled by the Speaker, and in recent years, has put more and more restrictions on bills, giving Rules even more power. Caucuses Although Congress is organized formally through its party leadership and committee system, equally important is the informal network ofcaucuses, groupings of members of Congress sharing the same interests or points of view. There are currently more than seventy of these groups, and their goal is to shape the agenda of Congress, which they do by elevating their issues or
interests to a prominent place in the daily workings of Congress. Some caucuses are regionally based, such as the Conservative Democratic Forum (also known as the Boll Weevils because they are mostly from the South), the Sunbelt Caucus, and the Northeast-Midwest Congressional Coalition. Others share racial, ethnic, or gender characteristics, such as the Congressional Black Caucus, or the Womens Caucus. (DW) One of the oldest is the Democratic Study Group, which encourages unity among liberal Democrats. Others share specialized interests, such as the Steel Caucus and
the Mushroom Caucus. Within Congress caucuses press for committees to hold hearings, and they organize votes on bills they favor. Caucuses also pressure agencies within the bureaucracy to act according to the interest of the caucus. Staff More than 30,000 people work in paid bureaucratic positions for Congress. About half of them serve as personal staff for members of Congress or as committee staff members. The personal staff includes professionals that manage the
members time, draft legislation, and deal with media and constituents. Staffers also must maintain local offices in the members home district or state. The average Senate office employs about thirty staff members, but senators from the most populous states commonly employ more. House office staffs are usually about half as large as those of the Senate. Overall, the number of staff members has increased dramatically since 1960. Who is in Congress? Members of Congress are far from typical Americans, but they have a number of characteristics in common:
90% are male. Most are well educated. Most are from upper-middle or upper income backgrounds. Most are Protestants, although in recent years, a more proportional number have been Roman Catholic and Jewish. Most are white, with only a handful of African Americans, Asian Americans, Hispanics, and Native Americans The average age of senators is about 60; representative average about 55. 40% are lawyers; others are business owners or officers, professors and teachers, clergy, and farmers. It is important to note that Congress has gradually become less
male and less white. Between 1950 and 2005 the number of women senators rose from 2 to 14, and female representatives have increased from 10 to 68. There were 40 black representatives in the 109th Congress, as compared to 2 in the 82nd (1951-52). Although there is only one black senator in the 109 th Congress, there were none in the 82nd Congress. Today, the House has 23 Hispanics, and the Senate has 2. The 109th Congress also has 5 Asian Representatives and 2 Asian senators. Incumbents During the 1800s most members of Congress served only one term,
returning home to their careers when they completed their service. During the 20th century, serving in Congress has become a lifetime career for most members, and the number of incumbents, or those who already hold the office, with secure seats, has increased dramatically. Scholars do not agree on all the reasons for the incumbency trend. Some believe that with fewer voters strongly attached to parties, people are voting for individuals, not for candidates because they are Democrats or Republicans. Incumbents have more name recognition than challengers; therefore are more likely to be elected. Incumbents enjoy free mailings (called the franking privilege), more experience with campaigning, and greater access to the media. They also raise campaign money more easily than challengers, because lobbyists and political action committees seek their favors.
(DW) Today $8 of every $10 of PAC money is given to incumbents. Representation For many years, any state with more than one representative has elected their representatives from single-member districts. Two problems emerged from single-member districting: malapportionment : For many years states often drew districts of unequal sizes and populations. As a result, some citizens had better access to their representatives than other did. The problem was addressed by the Supreme Court in the 1964
case, Wesberry v. Sanders, in which the Court ordered that districts be drawn so that one person's vote would be as equal as possible to another (the "one man one vote" decision). Gerrymandering: This common practice was originally meant to give one political party an advantage over the other. District boundaries are drawn in strange ways in order to make it easy for the candidate of one party to win election in that district). The term "gerrymandering" is derived from the original gerrymanderer, Eldrige Gerry, who had a Massachusetts district drawn in the shape of a salamander, to ensure the election of a Republican. (DW) Over the years both parties were accused of manipulating districts in order to gain an advantage in membership in the House.
MINORITY/MAJORITY DISTRICTING Gerrymandering continues to be an issue today. A more recent form that appeared shortly after the 1990 census is minority/ majority districting, or rearranging districts to allow a minority representative to be elected, is just as controversial as the old style party gerrymandering. The Justice Department ordered North Carolinas 12th district to redraw their proposed boundaries in order to allow for the election of one more black representative. This action resulted in a Supreme Court case, Shaw v. Reno, which the plaintiffs charging the Justice Department with reverse discrimination based on the equal protection clause of the
14thAmendment. The Court ruled narrowly, but allowed the district lines to be redrawn according to Justice Department standards. During the 1990s several cases were brought to the Supreme Court regarding racial gerrymandering. The Court ruled in Easley v. Cromartie (2001) that race may be a factor in redistricting, but not the dominant and controlling one. An important result of the various decisions has been a substantial increase in the number of black and Latino representatives in the House.
The Congress HOW A BILL BECOMES A LAW Creating legislation is what the business of Congress is all about. Ideas for laws come from many places ordinary citizens, the President, offices of the executive branch, state legislatures and governors, congressional staff, and of course the members of Congress themselves. Constitutional provisions, whose primary purposes are to create obstacles, govern the process that a bill
goes through before it becomes law. The founders believed that efficiency was the hallmark of oppressive government, and they wanted to be sure that laws that actually passed all the hurdles were the well-considered result of inspection by many eyes. Similar versions of bills often are introduced in the House and the Senate at approximately the same time, especially if the issues they address are considered to be important. The vast majority of bills never make it out of committee, and those that survive have a
complex obstacle course to run before they become laws. Introduction of a bill Every bill must be introduced in the House and Senate by a member of that body. Any member of the House simply may hand a bill to a clerk or drop it in a "hopper". In the Senate the presiding officer must recognize the member and announce the bill's introduction. House bills bear the prefix "H.R.", and Senate bills begin with the prefix "S." If a bill is not passed by both houses and signed by the president within the life of one Congress, it is dead and
must by president again during the next Congress. In addition to bills Congress can pass resolutions, which come in several types: A simple resolution is passed by either the House or the Senate, and usually establishes rules, regulations, or practices that do not have the force of law. For example, a resolution may be passed congratulating a staff member for doing a good job or having an anniversary. Sometimes simple resolutions set the rules under which each body operates. A concurrent resolution comes from both houses, and often settles housekeeping and procedural matters that affect both houses. Simple
and concurrent resolutions are not signed by the president and do not have the force of law. A joint resolution requires the approval of both houses and the signature of the president, and is essentially the same as a law. Joint resolutions are sometimes passed when the houses of Congress react to an important issue that needs immediate attention. For example, after the terrorist attacks on New York and Washington on September 11, 2001, Congress passed a joint resolution condemning the attacks and authorizing President George. W. Bush to take preliminary military actions. Bills in Committee After introduction, a bill is referred to committee, whether in the House or the Senate. The Constitution requires that "all bills for
raising revenue shall originate in the House of Representative," but the Senate can amend bills almost beyond recognition. However, because of this special power, the committee in the House that handles revenue legislation - the Ways and Means - is particularly powerful. Most bills die in committee, especially if they are only introduced to satisfy constituents or get publicity for the member of Congress that introduces it. In the House a discharge petition may be signed by 218 members to bring it to the floor, but the vast majority of bills are referred to the floor only after committee recommendation.
Calendars For a bill to come before either house, it must first be placed on a calendar: five in the House, and two in the Senate. The Congressional Calendars are as follows: House Union Calendar - Bills to raise revenue of spend money House Calendar - Nonmoney bills of major importance Private Calendar - private bills that do not affect the general welfare Consent Calendar - Noncontroversial bills Discharge Calendar - Discharge petitions Senate Executive calendar - Presidential nominations, proposed treaties Calendar of Business - all legislation
Before a bill can go to the floor in the House of Representatives, it must first go to the Rules Committee that sets time limits and amendment regulations for the debate. Bills in the Senate go straight from committee to the floor. Floor Debate Important bills in the House, including all bills of revenue, must first be referred to a Committee of the Whole that sits on the floor, but is directed by the chairman of the sponsoring committee.
The quorum is not the usual 218 members, but 100 members, and the debate is conducted by the committee chairman. Sometimes bills are significantly altered, but usually the bill goes to the full floor, where the Speaker presides, and debate is guided by more formal rules. The bills are not changed drastically, largely because many are debated under closed rules. If amendments are allowed, they must be germane, or relevant to the topic of the bill. Bills in the Senate go directly to the floor where they are debated much less formally than in the House. Senators may speak for as long as they wish, which leads more and more frequently to a filibuster, the practice of talking a bill to death.
(DW) Although one-man filibusters are dramatic, usually several senators who oppose a bill will agree together to block legislation through delay tactics, such as having the roll called over and over again. A filibuster may be stopped by a cloture, in which three-fifths of the entire Senate membership must vote to stop debate. (DW) For example, Democratic senators have filibustered several of Republican President George W. Bushs nominees to the judiciary, resulting in those judgeships going unfilled. No limit exists on amendments, so riders, or nongermane provisions, or often added to bills from the floor. A bill with many riders is known as a Christmas-tree bill, and usually occurs because individual senators are trying to attach their favorite ideas or benefits to their states.
Voting Voting is also more formal in the House than in the Senate. House members may vote according to several procedures: teller vote, in which members file past the clerk, first the "yeas" and then the "nays" voice vote, in which they simply shout "yea" or "nay". division vote, in which members stand to be counted roll call vote which consists of people answering "yea" or "nay" to their names. A roll call vote can be called for by one-fifth of the House membership. electronic voting, that permits each members to insert a plastic card in a slot to record his or her vote. This form is the most commonly one today.
The Senate basically votes in the same ways, but it does not have an electronic voting system. CONFERENCE COMMITTEE ACTION If a bill is passed by one House and not the other, it dies. If a bill is not approved by both houses before the end of a Congress, it must begin all over again in the next Congress if it is to be passed at all. When the House and the Senate cannot resolve similar bills through informal agreements, the two versions of the bill must go to conference committee, whose members are selected from both the House and the Senate. Compromise versions are sent back to each chamber for
final approval. PRESIDENTIAL ACTION A bill approved by both houses is sent to the president who can either sign it or veto it. If the president vetoes it, the veto may be overridden by two-thirds of both houses. The president has ten days to act on a proposed piece of legislation. If he receives a bill within ten days of the adjournment of the Congress, he may simply not respond and the bill will die. This practice is called a pocket veto.
The Congress CRITICISMS OF CONGRESS PORK-BARREL LEGISLATION/LOGROLLING By the 1870s members of Congress were using the term pork to refer to benefits for their districts, and bills that give those benefits to constituents in hope of gaining their votes were called pork barrel legislation. (DW) The term comes from the pre-Civil War days when it was the custom in the South to take salt pork from barrels and distribute it among the slaves, who would often rush on the barrels. Critics point out that such actions do not insure that federal money goes to the places where it is most needed, but to districts whose representatives are most
aggressive or most in need of votes. (DW) A particularly controversial example was the mammoth 2005 Consolidated Appropriations Act, which funded about 11,000 projects, from building a Civil War Theme Park, renovating and building museums and health care facilities, constructing several different halls of fame, and funding community swimming pools and parking garages. The act was criticized largely because so much of the money went to constituencies well represented on the Appropriations Committees in Congress. Logrolling occurs when a member of Congress supports another member's pet project in return for support for his or her own project. (DW) The term comes from pioneer days when
neighbors would get together to roll logs from recently cleared property to make way for building houses. This "cooperation" occurs in Congress in the form of "You scratch my back, I'll scratch yours." THE TERM-LIMITS DEBATE The Constitution imposes no limits on the number of terms members of Congress can serve. Just as an amendment was passed during the 1950s to limit the term numbers of presidents, many argue that terms of members of Congress should be limited as well. With the growing prevalence of incumbency, supporters of term limits believe that popular control of Congress has weakened and that
members may become dictatorial or unresponsive to their constituents. Others believe that the most experienced members would be forced to leave when their terms expire, leaving Congress without their expertise. The seniority system and methods of selected party leaders would be seriously altered with questionable results. (DW) he demand for term limits increased during the 1990s under House Speaker Newt Gingrichs leadership, but Congress did not vote to impose them. INEFFICIENCY Particularly in this age where gridlock often slows the legislative process, many people criticize Congress for inefficiency. Some believe that the long process that bills
must go through in order to become laws does not work well in modern America. However, the process affirms the Constitutional design put in place by the founders. Their vision was that only wellreasoned bills become law and that many voices should contribute to the process. From that viewpoint, then, the nature of democratic discourse does not insure a smoothly running, efficient Congress, but rather one that resolves differences through discussion, argument, and the eventual shaping of legislation The Four Institutions THE PRESIDENCY
When the founders created the three branches of the government, they disagreed about the amount of power to be vested in the executive. Many feared more than anything a strong president whose powers could be compared to those of the king of England. Others believed, in the words of Alexander Hamilton, that "energy in the executive is a leading characteristic of good government." As the modern presidency has evolved, Hamilton's point of view seems to prevail today, as the president is the single most powerful individual in the American political system. Although the checks and balances set in motion in 1787
still operate, the presidency described in the Constitution is much different from the one that we have today. Executive Branch THE EVOLUTION OF THE PRESIDENCY Constitutional provisions limited the early presidency, although the personalities of the first three presidents George Washington, John Adams, and Thomas Jefferson shaped it into an influential position by the early 1800s.
However, all through the 1800s up until the 1930s, Congress was the dominant branch of the national government. Then, in the past seventy years or so, the balance of power has shifted dramatically, so that the executive branch currently has at least equal power to the legislative branch. How did this shift happen? THE PRESIDENCY IN THE CONSTITUTION Article II of the Constitution defines the qualifications, powers, and duties of the president and carefully notes some important
checks of the executive branch by the legislature. Qualifications The president must be a "natural-born citizen." Only individuals born as citizens may seek the presidency; all others are excluded from consideration. (DW) This provision has become controversial in recent years, with a movement backing California Governor Arnold Schwarzenegger, a naturalized citizen, for president. Recent Secretaries of State Madeline Albright and Henry Kissinger were also unqualified for the presidency under
this constitutional provision. The president must have lived in the United States for at least 14 years before his election, although the years don't have to be consecutive. The president must be at least 35 years old (in contrast to a minimum age of 30 for a senator and 25 for a representative). (DW) This provision has never been seriously challenged, since presidents tend to be considerably older than 35. The youngest presidents were Theodore Roosevelt and John F. Kennedy, who both took office at the age of 43.
Powers and Duties The Constitutional powers and duties of the president are very limited. Those specifically granted are as follows: According to Article II, Section One, the president holds "the executive power" of the United States. The "executive" was meant to "execute", or administer the decisions made by the legislature. This phrase at least implies an executive check on the legislature, and in fact, has been the source of presidential power over the years. Military power - The president is commander in chief of the armed
services. The intention of the founders was to keep control of the military in the hands of a civilian, avoiding a military tyranny. (DW) In Madison's words (Federalist No. 51), "Ambition must be made to counteract ambition." As commander in chief, the president has probably exercised more authority than in any other role. Although Congress has the sole power to declare war, the president can send the armed forces into a country in situations that are the equivalent of war. Congress has not officially declared war since December 8, 1941 (one day after the attack on Pearl Harbor), yet the Country has fought wars in Korea, Vietnam, and the Middle East. Congress attempted to control such military activities when it passed the War Powers Resolution in 1973, requiring the president to consult with Congress
when activating military troops. The president must report to Congress within forty-eight hours of deploying troops, and unless Congress approves the use of troops within sixty days or extends the sixty-day time limit, the forces must be withdrawn. Diplomatic power -The president makes treaties with foreign nations, but only with the "advice and consent" of the Senate. Two-thirds of the Senate must approve a treaty; a president's signature is not enough to make it binding. (DW) This provision is a check of the executive by the legislature. However, presidents have gotten around this provision by using executive agreements made between the president and other heads of state. Such agreements do not require Senate approval, although Congress may withhold
funding to implement them. Whereas treaties are binding on future presidents, executive agreements are not. The Constitution also gives the president the power of diplomatic recognition, or the power to recognize foreign governments. (DW) When twentieth century presidents have withheld this recognition, it has often served as a powerful comment on the legitimacy of governments. For example, the U.S. did not recognize the U.S.S.R. government created in 1917 until the 1930s, nor did the president recognize the Peoples Republic of China (created in 1949) until the early 1970s. Appointment power - The president appoints ambassadors,
other public officers, and judges of the Supreme Court, but again, only with the "advice and consent" of the Senate. Two-thirds must confirm the appointments. The president may appoint many lower positions without Senate approval, but those positions are created and defined by Congress. The appointment power is generally limited to cabinet and subcabinet jobs, federal judgeships, agency heads, and about two thousand less jobs. Most government positions are filled by civil service employees, who compete for jobs through a merit system, so presidents have little say over them. Presidents generally have the power to remove executives from power, with a 1926 Supreme Court decision affirming the presidents ability to
fire those executive-branch officials whom he appointed with Senate approval. Judges may be removed only through the impeachment process, so presidents have little power over them once they have been appointed. Veto power - A president can veto a legislative bill by returning it, along with a veto message or explanation, within ten days to the house in which it originated. Congress in turn may override the veto by a twothirds vote. The president may also exercise the pocket veto. If the president does not sign the bill within ten days and Congress has adjourned within that time, the bill will not
become law. Executive Branch STRENGTHENING THE PRESIDENCY From the very beginning, informal influences have shaped the presidency. The framers almost certainly fashioned the president in the image of George Washington, the man unanimously selected to first occupy the office. Washington's qualities of wisdom, moderation, and dignity defined the more formal duties and powers, and his nonpartisan attitudes created expectations for behavior in presidents that followed.
(DW) Other strong presidents have contributed to the presidency as it exists today, such as Andrew Jackson, who first used the veto power extensively; Abraham Lincoln, who carried the meaning of "commander in chief" to new heights during the Civil War; and Franklin Roosevelt, who formulated sweeping New Deal policies that were finally checked by the Supreme Court. Many informal qualifications, powers, and duties of the president have evolved that are not mentioned in Article II of the Constitution. Executive Privilege
The Constitution says nothing about presidential rights to keep private communications between himself and his principal advisers, but presidents have traditionally claimed the privilege of confidentiality executive privilege. Their claim is based on two grounds. separation of powers keeps one branch from inquiring into the internal workings of another branch. Presidents and advisers need the assurance of private discussions to be candid with one another without fear of immediate press and public reaction. (DW) This need for privacy is especially important with matters of national security.
Even though Congress has never liked executive privilege, the right was not questioned seriously until 1973 when the Supreme Court addressed the issue directly. As a part of the Watergate investigations, a federal prosecutor sought tape recordings of conversations between Richard Nixon and his advisers. Nixon refused to give the tapes over, claiming executive privilege. In United States v. Nixon the Court held that there is no "absolute unqualified presidential privilege of immunity from judicial process under all circumstances." In this case, executive privilege would block the constitutionally defined function of federal courts to
decide criminal cases. Executive privilege has been further defined byNixon v. Fitzgerald (1982), which states that presidents cannot be sued for damages related to official decisions made while in office. In 1997 President Clinton tried to extend this protection to cover all civil suits, but in Clinton v. Jones the Court ruled against his argument that civil suits against a chief executive distract him from presidential duties. These decisions have restricted executive privilege, but they have not eliminated it.
(DW) In all cases the Court has assumed that the president has the right of executive privilege. Impoundment of Funds Impoundment is the presidential practice of refusing to spend money appropriated by Congress. (DW) Although many previous presidents impounded funds, the test case came with Richard Nixon. A major goal of his administration was to reduce federal spending, and when the Democratic Congress passed spending bills, he responded by pocket-vetoing twelve bills and then impounding funds appropriated under other laws that he had not vetoed.
Congress in turn passed the Budget Reform and Impoundment Act of 1974 that required the president to spend all appropriated funds, unless Congress approved the impoundment. Federal courts have upheld the rule that presidents must spend money that Congress appropriates. The President as Morale Builder The founders had no way of knowing the evolutionary importance of the symbolic and morale-building functions a president must perform. People turn to their presidents for meaning, healing, assurance, and a sense of purpose.
This function is particularly important during times of crisis, such as the period following the attacks on the World Trade Towers and the Pentagon on September 11, 2001. The president is expected to help unify the nation, represent our common heritage, and create a climate that encourages diverse elements to work together. Agenda Setting The Constitution provides the basis for the important power of agenda setting or determining policy priorities - for the nation. According to Article Two, Section Three, "He shall from time to time give to the
Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient." Even though Congress is charged with passing legislation, the president is expected to make policy proposals in many areas. (DW) Presidents often initiate foreign policy, economic goals and plans, and programs that improve the quality of life of citizens. Franklin Roosevelt set a precedent when he shepherded his New Deal policies through the legislature, taking responsibility for programs to get the country out of the Great Depression. Sometimes initiatives are outlined as campaign issues and are
refined by the executive office staff, special task forces, and by Congress. For example, President George W. Bush introduced Social Security reform in the 2000 presidential campaign, an issue that he promoted as president, especially after his reelection in 2004. (DW) Initiatives may fail, as did President Clinton's health care proposals in 1993. Presidents generally have more leeway in foreign policy and military affairs than they have in domestic matters, largely because the founders anticipated a special need for speed and unity in our relations with other nations. The Power of Persuasion An effective president is a good politician, a mobilizer of influence in the American political system. Because his formal powers are
limited, he must spend much time persuading people to support his agenda. The president's persuasive powers are aimed at three audiences: fellow politicians and leaders in Washington, party activists and officeholders outside Washington, and the public, with its many different views and sets of interests. All three audiences influence the decision-making process, and the president has the visibility and power to persuade them to listen to his priorities. A powerful president is often at the center of the give-and-take negotiations among these groups, and an effective persuader can be the catalyst that makes its all work.
Executive Orders Congress allows the president to issue executive orders that have the force of law. These executive orders may enforce the Constitution, treaties, or legislative statutes, or they may establish or modify rules and practices of executive administrative agencies. The only restriction on executive orders is that they must be published in the Federal Register, a daily publication of the U.S. Government. The Changing Veto Power
In recent years many critics have suggested a line-item veto reform that would allow presidents to veto sections of bills without rejecting the whole thing. Congress passed the Line-Item Veto Act in 1996, which allowed the president to veto sections of appropriations bills only. When President Clinton exercised this new provision, the law and the presidents action were challenged in Clinton v. City of New York(1997). The Supreme Court ruled both the law and the action unconstitutional, criticizing them for permitting the president to construct legislation: an abuse of the principle of separation of powers.
THE ISSUE OF GRIDLOCK Over the past fifty years, a significant trend has developed: divided government, or a government in which one party controls the White House and a different party controls one or both houses of Congress. Until 2003, only two exceptions occurred. Between 1993 and 1995, the Democrats controlled both branches, and for a few months in early 2001, when the Republicans briefly dominated. (DW) However, with the midterm election of 2002, Republicans gained control of both houses, putting both branches under Republican control. The election of 2004 affirmed this arrangement, leading many to speculate that a new Republican era was dawning.
Many people criticize divided government because it produces "gridlock," or the inability to get anything done because the branches bicker with one another and make decisions difficult. A unique illustration of gridlock occurred in 1995 and 1996 when Congress and the president could not agree on the federal budget, thus shutting down many government operations, including national parks and federal offices, until an agreement could be reached. Even though gridlock may slow the process of decisionmaking, some supporters of divided government believe that it is not necessarily bad because better balanced policies may result. Others believe that a unified government is a myth, with
struggles between the branches a natural part of the give and take of checks and balances. Executive Branch OTHER IMPORTANT MEMBERS OF THE EXECUTIVE BRANCH THE VICE-PRESIDENT "I do not choose to be buried until I am already dead." A nineteenth century presidential hopeful, Daniel Webster, declined the vice presidency with the above words, expressing a sentiment repeated by many vice presidents
over time. The founders paid little attention to the office and assigned it only two formal duties: to preside over the Senate, but without a vote except to break a tie. This power is seldom claimed by the vice president who defers to the president pro tempore who in turn usually hands the responsibility to a junior senator. to help decide the question of presidential disability, as provided in the 25th Amendment in 1967. To date, the vice president has never had to decide a question of presidential disability. A vice president's role in any administration is almost entirely up to the president. Although the original constitution designated the
runner-up for the presidency as the vice president, the 12thAmendment was passed in 1804, which provided for electors to vote for a president/vicepresident slate. Traditionally, a presidential candidate chooses a vice presidential partner, usually based on a "balance" to the ticket (region, age, popular base, party subgroup). In recent years, presidents have given more and more important duties to vice presidents. They often represent the president for important ceremonies, sit on boards or projects, and advise him on major, sometimes specialized, issues. (DW) For example, Vice President Al Gore advised
President Bill Clinton on environmental issues and headed a national review of the federal bureaucracy. (DW) President George W. Bush has involved Vice President Dick Cheney in many policy areas, including those shaped in reaction to the terrorist acts of September 11, 2001. THE WHITE HOUSE OFFICE Some of the most influential people in government are in the presidents White House Office. The organization of the staff is entirely up to the president, and their titles include chief of staff, "counsel," "counselor," "assistant to the president," "special
consultant," or press secretary. These aides are appointed by the president without Senate confirmation, and they may be fired at will. (DW) Often they do not serve an entire presidential term. The organization of the White House Office has been analyzed according to two models: the "pyramid" model: In this organizational model, most assistants report through a hierarchy to a chief of staff and/or a chief aide. This model is relatively efficient and it frees the presidents calendar for only the most important issue. On the other hand, the president may become isolated or his top advisers may
gain a great deal of power, as happened to President Richard Nixon in the early 1970s the "circular" model: Presidents that use this model have more direct contact with their staff members, with many cabinet secretaries and assistants reporting directly to the president. (DW) Bill Clinton employed this structure, especially in the early years of his presidency, when many task forces, committees, and informal groups of friends and advisers dealt directly with the President. This model allows better access to the president, and ideas are not filtered through one or two top aides. Critics say that the model promotes chaos and that the presidents time is not well used.
THE EXECUTIVE OFFICE OF THE PRESIDENT The Executive Office consists of agencies that report directly to the president and perform staff services for him. Some agencies are large bureaucracies. The president appoints the top positions, but unlike the White House Staff members, these Executive Office appointees must be confirmed by the Senate. The Executive Office agencies include the following: The National Security Council advises the president on American
military affairs and foreign policy. The NSC consists of the president, the vice president, and the secretaries of state and defense. The presidents national security adviser runs the staff of the NSC and also advises the president. The Office of Management and Budget(OMB) is the largest office in the EOP, and it has the job of preparing the national budget that the president proposes to Congress every year. The OMB also monitors the spending of funds approved by Congress and checks the budgets and records of executive agencies. The National Economic Council helps the president with economic planning. The council consists of three leading economists and is assisted by about 60 other economists, attorneys, and political scientists. The NEC is the presidents
major source of advice and information about the nations economy. THE CABINET The cabinet is the oldest traditional body of the executive branch. The first cabinet members were appointed by Washington to serve as secretary of state, secretary of the treasury, secretary of war, and attorney general. From the earliest feuds between Thomas Jefferson and Alexander Hamilton, the cabinet almost never has served as a deliberative body of presidential advisers. Cabinet officers are the heads of fourteen major departments.
(DW) The order of their creation is important for protocol. When the cabinet meets, the secretary of state sits on one side and treasury on the other, and so forth down the table so that the newest departments are the farthest away from the president. They are appointed by the president and must be confirmed by the Senate. The original four positions (secretary of war is now called secretary of defense), are known as the inner cabinet, as still generally have the most power and influence. The president has very little power over cabinet departments partly because he cannot appoint more than a small number of all a department's employees. The most important reason that the departments
operate independently from the president is that cabinet members spend the large majority of their time on departmental business, and seek to defend and promote their own organizations in cabinet meetings. What results is that they often compete with one another for precious resources and attention, and represent the departments to the president rather than functioning as the president's representative to the departments. INDEPENDENT AGENCIES AND COMMISSIONS
The president also appoints people to agencies and commissions that by law often have an independent status. In contrast to the heads of "executive" agencies, the heads of independent agencies serve by law for fixed terms of office and can be removed only "for cause." The agencies are created by Congress, and include such well-known bodies as the Federal Reserve Board, the Federal Communications Commission, the Federal Deposit Insurance Corporation, the Interstate Commerce Commission, and the Securities and Exchange Commission. Executive Branch
SELECTION OF THE PRESIDENT One very important characteristic of the American political system is that no one seriously questions the process of selecting a president. Nor have we ever had anything other than a peaceful transition between presidents. (DW) Of course, people criticize the men that we choose, not to even mention the fact that we have never chosen a women. What people accept almost completely is how a president is chosen or that he should leave office when his time is
up. THE ELECTORAL COLLEGE The method of selection of the president was one of the most controversial topics at the Constitutional Convention. Most of the framers did not trust the public to directly elect the president, but under the checks and balances system, neither could Congress be allowed to select the head of the executive branch. The solution to the dilemma was to create an electoral college, a group of electors chosen by each state who would meet in their respective state capitals to vote for president and vice president. (DW) Many framers believed that states would vote for favorite
sons and that often the election would be decided by the House of Representatives. It did not work out as they expected, largely because they did not foresee the important role that political parties would play in presidential selection. Executive Branch PRESIDENTIAL DISABILITY AND SUCCESSION According to the Constitution, the president's elected term of office is four years, but no mention is made of the number of terms a president may serve.
By a precedent set by George Washington, who retired after two terms, no president before Franklin Roosevelt served longer than two terms. However, in the midst of economic depression and a world war, Roosevelt ran for and won a third and fourth term of office, although he died before he completed the last one. Because the tradition was seen as a safeguard against tyranny, Congress added the22nd Amendment to the Constitution, limiting a president to election to two terms and/or serving no more than ten years. A vice president who becomes president with less than two years remaining in the previous president's term may run for the office two times on his own.
Presidential Disability (DW) Among twentieth century Presidents, Woodrow Wilson became incapable of carrying out his job after he suffered a stroke, and his wife apparently made many presidential decisions. Likewise, Dwight Eisenhower was unable to function as President for several weeks after a debilitating heart attack. The 25th Amendment(1967) to the Constitution covers this important problem concerning the presidential term: disability and succession. It permits the vice president to become acting president if the vice president and the cabinet determine that the president is disabled.
If the president challenges the executive decision, Congress decides the issue. The amendment also outlines how a recovering president can reclaim the Oval Office. Presidential Succession The 25th Amendment also created a method for selecting a vice president when the office is vacated. The president nominates a new vice president, who assumes office when both houses of Congress approve the nomination by a majority vote. A vice president who assumes the presidency then nominates a new vice president who is also confirmed by Congress. If there is no vice president, then a 1947 succession law governs: next in line are the speaker of the house, the Senate pro tempore, and the thirteen cabinet
officers, beginning with the secretary of state. The disability provision has never been used, but the vice presidential succession policy has. In 1973, Vice President Spiro Agnew resigned amidst charges of bribery, and President Nixon appointed Gerald Ford in his place. (DW) The next year, Nixon resigned as a result of the Watergate scandal, Ford became president, and he appointed Nelson Rockefeller as vice president. For the first time in history, both the presidency and vice presidency were held by appointed, not elected, officials. THE IMPEACHMENT PROCESS The Constitution provides a way to remove a president before his term is over, but it is not an easy process.
The House of Representatives may, by majority vote, impeach the president for "Treason, Bribery, or other high Crimes and Misdemeanors." Once the House impeaches the president, the case goes to the Senate, which tries the president, with the chief justice of the Supreme Court presiding. By a two-third vote, the Senate may convict and remove the president from office. Only two presidents have been impeached: Andrew Johnson was impeached by the House in 1868 in the wake of the postCivil War politics, but the Senate failed to convict him (by a one vote margin), and he remained in office. Bill Clinton was impeached by the House in 2000 on two counts: committing perjury and obstructing justice in the investigation of sex scandals surrounding the Presidents relationships with Paula Jones and Monica Lewinsky.
The Four Institutions THE BUREAUCRACY Many Americans have a negative view of the federal bureaucracy. (DW) The very mention of the world bureaucracy often conjures up a memory of an important document lost, or a scolding for some alleged misconduct of personal business. Bureaucratic power is felt in almost all areas of American life, and yet bureaucracies are barely mentioned in the Constitution.
Bureaucratic agencies are created and funded by Congress, but most of them report to the president, who supervises them as he takes "care that the laws shall be faithfully executed" (Article II, Section 3 of the Constitution). (DW) This dual responsibility to Congress and to the president is an indication of the complex nature of the organization and functioning of federal government bureaucracies. BUREAUCRACY IN MODERN GOVERNMENTS A bureaucracy is a large, complex organization of appointed, not elected, officials. Bureaucracies exist in many countries in many areas of life, including corporations, universities, and local and state
governments. The term actually comes from the French word bureau, a reference to the small desks that the kings representatives set up in towns as they traveled across the country doing the kings business. (DW) So bureaucracy literally means something like government with small desks. Bureaucracy MAX WEBERS BUREAUCRACY Max Weber was one of the first people in modern
times to think seriously about the importance of bureaucracy. (DW) He wrote in Germany during the early 20th century, when developing capitalism was spawning more and more large businesses. The changing economic scene had important implications for government. He created the classic conception of bureaucracy as a well-organized, complex machine that is a "rational" way for a modern society to organize its business. He did not see them as necessary evils, but as the best organizational response to a changing society.
hierarchical authority structure - A chain of command that is hierarchical; the top bureaucrat has ultimate control, and authority flows from the top down. task specialization - A clear division of labor in which every individual has a specialized job extensive rules - Clearly written, well-established formal rules that all people in the organization follow clear goals - A clearly defined set of goals that all people in the organization strive toward the merit principle - Merit-based hiring and promotion; no granting of jobs to friends or family unless they are the best qualified impersonality - Job performance that is judged by
productivity, or how much work the individual gets done Bureaucracy THE AMERICAN FEDERAL BUREAUCRACY Divided supervision - Congress has the power to create, organize, and disband all federal agencies. Most of them are under the control of the president, although few of them actually have direct contact with him. So the bureaucracy has two masters: Congress and the president. (DW) Political authority over the bureaucracy is shared, then, according to the principles of separation of powers and federalism. On the national level, both Congress and
officials in the executive branch have authority over the bureaucracy. This divided authority encourages bureaucrats to play one branch of government against the other. Also, to complicate things even more, many agencies have counterparts at the state and local level. Many federal agencies work with other organizations at state and local levels of government. Close public scrutiny - Government agencies in this country operate under closer public scrutiny than they do in most other countries. (DW) The emphasis in American political culture on individual rights and their defense against abuse by government makes court challenges to agency actions more likely. About half of the cases that come to federal court involve the United States government as either defendant or plaintiff.
Regulation rather than public ownership - United States government agencies regulate privately owned enterprises, rather than operate publicly owned ones. (DW) In most Western European nations the government owns and operates large parts of the economy; the U.S. government prefers regulation to ownership. Bureaucracy THE GROWTH OF THE FEDERAL BUREAUCRACY The Constitution made little mention of a bureaucracy other than to make the president responsible for appointing (with the advice and
consent of the Senate) public officials, including ambassadors, judges, and "all other officers of the United States whose appointments are not herein otherwise provided for, and which shall be established by law" (Article II, Section 3). (DW) No provisions mentioned departments or bureaus, but Congress created the first bureaucracy during George Washingtons presidency. PATRONAGE The bureaucracy began in 1789 when Congress created a Department of State to assist the new Secretary of State, Thomas Jefferson.
(DW) From 1789 to about 1829, the bureaucracy was drawn from an upper-class, white male elite. In 1829, the new President Andrew Jackson employed a spoils system to reward party loyalists with key federal posts. (DW) Jackson believed that such rewards would not only provide greater participation by the middle and lower classes, but would insure effectiveness and responsiveness from those who owed their jobs to the president. The spoils system ensured that with each new president came a full turnover in the federal service. THE PENDLETON ACT Late in the nineteenth century the spoils system was severely criticized
because it allowed people with little knowledge and background to be appointed to important government positions. (DW) Some accused presidents of "selling" the positions or using them as bribes to muster support for their election campaigns. After President James Garfield was assassinated in 1881 by a disappointed office seeker, Congress passed the Pendleton Act, which set up a limited merit system for appointing federal offices. Federal service was placed under the Civil Service Commission, which supervised a testing program to evaluate candidates. Federal employees were to be selected and retained according to merit, not party loyalty, but in the beginning the merit system only covered about 10 percent of all federal employees.
THE MODERN BUREAUCRACY By the 1950s the merit system had grown to cover about 90 percent of all federal employees, and in 1978, the functions of the Civil Service Commission were split between two new agencies: The Office of Personnel Management administers civil service laws, rules, and regulations. The OPM administers written examinations for the competitive service, which includes about two-thirds of all appointed officials. The OPM is in charge of hiring for most agencies. (DW) When a position opens, the OPM sends three eligible names to the
agency, and the agency must hire one of them, except under unusual circumstances. Once hired, a person is assigned a GS (General Schedule) Rating, ranging from GS 1 to GS 18, which determines salaries. (DW) At the top of the civil service system is the Senior Executive Service, executives with high salaries who may be moved from one agency to another. The Merit Systems Protection Board protects the integrity of the federal merit system and the rights of federal employees. The board hears charges of wrongdoing and employee appeals against agency actions and orders disciplinary actions against agency executives or employees.
The federal bureaucracy grew tremendously as a result of Roosevelt's New Deal programs and World War II, but the number of federal bureaucrats has leveled off in the years since then. Whereas the number of employees of state and local governments has grown tremendously in the past fifty years, the number of federal employees has remained a relatively constant three percent of all civilian jobs. One reason for the growth on the state and local levels is that many recently created federal programs are administered at the lower levels of government, not by federal employees.
Bureaucracy WHO ARE THE BUREAUCRATS Bureaucrats work in the executive branch in the fourteen cabinet-level departments and in the more than fifty independent agencies, including about 2,000 bureaus, offices, services, and other subdivisions of the government. The five biggest employers are the Departments of Army, Navy, and Air Force, the Department of Veterans Affairs, and the U.S. Postal Service. A total of about 3.2 million civilians and 1.8 million
military are employed by the executive branch of the federal government. Most people still think of a bureaucrat as being a white, middle-aged man, but the permanent bureaucracy today is more representative of the American people than are members of Congress, judges, or presidential appointees in the executive branch. About 57% are male, 43% are female. About 73% are white, 27% are minority (includes blacks, Asians, native Americans, and Hispanics). About 33% are hired by the Defense Department, 26% by the Postal Service, and 41% in other agencies. Only about 10% work in the Washington area, 90% work in other parts of the
United States. The average age is about 42. The number of federal employees per 1,000 people in the U.S. population has decreased from over 14 in the early 1970s to a little over 10 by the late 1990s. Bureaucrats hold a huge variety of jobs, but most federal employees are whitecollar workers, such as secretaries, clerks, lawyers, inspectors, and engineers. Nearly 20,000 federal civilian employees work in U.S. territories, and another 100,000 work in foreign nations. Bureaucracy THE ORGANIZATION OF THE BUREAUCRACY
THE CABINET DEPARTMENTS Each of the fifteen cabinet departments is headed by a secretary, except for the Department of Justice, which is headed by the attorney general. Solicitor General All of the heads are chosen by the President and approved by the Senate, and each manages a specific policy area. Responsibility is further divided among undersecretaries and assistant secretaries, who manage various agencies. THE INDEPENDENT REGULATORY AGENCIES
These agencies regulate important parts of the economy, making rules for large industries and businesses that affect the interests of the public. Because regulatory commissions are watchdogs that by their very nature need to operate independently, they are not part of a department, and most are not directly controlled by the President. Some examples are: The Interstate Commerce Commission (ICC) - Founded in 1887, the ICC is the oldest of the regulatory agencies. It first regulated railroads, but now oversees trucking as well.
The Federal Trade Commission (FTC) - The FTC regulates business practices and controls monopolies The National Labor Relations Board (NLRB) - The NLRB regulates labor-management relations. The Federal Reserve Board (FRB) - The FRB governs banks and regulates the supply of money. The Securities and Exchange Commission(SEC) - The SEC polices the stock market. The regulatory agencies are governed by small commissions - five to ten members appointed by the president and confirmed by the Senate. These commissioners are somewhat more "independent" than are the cabinet secretaries because they cannot be removed by the
president during their terms of office. The Government Corporations Government corporations are a blend of private corporation and government agency. They were created to allow more freedom and flexibility than exists in regular government agencies. They have more control over their budgets, and often have the right to decide how to use their own earnings. Since they still ultimately are controlled by the government, they do not operate like true private corporations.
The Corporation for Public Broadcasting- This controversial government corporation still operates public radio and television stations. Although largely funded by private donations, the government still provides policies and money to support their programs. The Tennessee Valley Authority - This corporation was created as one of Franklin Roosevelt's New Deal programs. Its mission is to harness the power of the Tennessee River to protect farmlands and provide cheap electricity. The U.S. Postal Service - The post office is a corporation that competes with private services. Amtrak - Congress created Amtrak to provide railroad passenger
service that is heavily subsidized by the federal government. Part of the motivation for its creation was the lack of private companies providing the service, and Amtrak has suffered some huge financial losses. Recently, in an attempt to make the corporation more profitably, Congress has allowed Amtrak to drop some of its less popular routes. INDEPENDENT EXECUTIVE AGENCIES Other agencies that do not fall into the first three categories are called independent executive agencies. Independent agencies closely resemble Cabinet departments, but they are smaller and less complex. Generally, they have narrower areas of responsibility
than do cabinet departments. Most of these agencies are subject to presidential control and are independent only in the sense that they are not part of a department. Their main function is not to regulate, but to fulfill a myriad of other administrative responsibilities. The General Services Administration(GSA) - The GSA operates and maintains federal properties, handling buildings, supplies, and purchasing. The National Science Foundation (NSF) - The NSF supports scientific research. The National Aeronautics and Space
Administration (NASA) - NASA administers the United States space program, financing ventures into space since 1958. Bureaucracy WHAT DO BUREAUCRATS DO? Most people think that bureaucrats only follow orders. Of course, anyone who works in the executive branch is there to implement decisions, but the reality of their work is more complicated. The power of the bureaucracy depends on how much discretionary
authority they have. Congress passes laws, but they cannot follow through on all the little decisions that have to be made as laws are translated into action. Bureaucrats, then, may make policies and choose actions that are not spelled out in advance by laws. Their main function is to do the nuts and bolts of "executing" policies that are made by Congress, the president, and the Supreme Court. Accountability The biggest difference between a government agency and a private organization is the number
of constraints placed on agencies from other parts of government and by law. A government bureau cannot hire, fire, build, or sell without going through procedures set by Congress, often through law. Presidents also exert considerable power over the bureaucracies. Congress Congress often acts as the problem-solving branch of government, setting the agenda and then letting the agencies decide how to implement them. On the other hand, Congress serves as a check on the activities of the bureaucracy.
Congress oversees the bureaucracy in a number of ways. 1) Duplication - Congress rarely gives any one job to a single agency. For example, drug trafficking is the task of the Customs Services, the FBI, the Drug Enforcement Administration, the Border Patrol, and the Defense Department. Although this spreading out of the responsibility often leads to contradictions among agencies and sometimes inhibits the responsiveness of government, it also keeps any one agency from becoming all powerful. 2) Authorization - No agency may spend money unless it has first been authorized by Congress. Authorization legislation originates in a legislative committee, and states the maximum amount of money that an agency may spend on a given program. Furthermore, even if funds have been authorized, Congress must also appropriate the money. An appropriation is money formally set aside for a specific use, and it usually is less
than the amount authorized. The Appropriations Committees in both houses of Congress must divide all available money among the agencies, and almost always they cut agency budgets from the levels authorized. Congress 3) Hearings - Congressional committees may hold hearings as part of their oversight responsibilities. Agency abuses may be questioned publicly, although the committee holding the hearings typically has the oversight responsibility, so a weak agency may reflect weak oversight. 4) Rewriting legislation - If they wish to restrict the
power of an agency, Congress may rewrite legislation or make it more detailed. Every statute is filled with instructions to its administrators, the more detailed the instructions, the better able Congress is to restrict the agency's power. Still, an agency usually finds a way to influence the policy, no matter how detailed the orders of Congress. President Agencies are also accountable to the chief administrator of the U.S. government: the president. Presidents use a number of methods to impress their policy preferences on the bureaucracy.
Appointments - The most obvious control the president has over the executive branch is his power to appoint the senior bureaucrats, including agency heads and subheads. If a president disagrees with the policies of an agency, he can appoint a head that agrees with him. This strategy may lead to problems because the agency can work against the new head, possibly seeking support in Congress. Also, because agencies tend to have strong points of view, a new head may sometimes be swayed to their beliefs. Executive Orders - A president may issue executive orders to agencies that they must obey. More typically, aides may pass the word informally to agencies as to the president's wishes. Even though agencies may resist, they usually pay attention to the president's preferences.
President Agencies are also accountable to the chief administrator of the U.S. government: the president. Presidents use a number of methods to impress their policy preferences on the bureaucracy. Economic powers - The president may exercise authority through the Office of Management and the Budget, which is the president's own final authority on any agency's budget. The OMB may cut or add to an agency's budget, although Congress ultimately does the appropriating. Reorganization - The president may reorganize or combine
agencies to reward or punish them. This power is limited, however, because entrenched bureaucracies, Congress, and supporting interest groups may keep a president from acting as he might like. Bureaucracy THE BUREAUCRACY AND INTEREST GROUPS Although interest groups have no formal control over agencies, the informal ties between them may greatly influence the implementation of policy.
Interest groups may provide agencies with valuable information they need to execute a policy. Interest groups may pressure agency bureaucrats to interpret policy in ways that are favorable to the interests they represent. Bureau chiefs may also recruit interest groups as allies in pursuing common goals. They often share with them a common view that more money should be spent on federal programs run by the bureau in question. Iron Triangles Alliances among bureaucrats, interest groups,
and congressional subcommittee members and staff sometimes form to promote their common causes. The president and Congress beyond the subcommittee have little decision-making power. Issue Networks The iron triangle may be criticized because interest groups today are so prolific that they are bound to create cross-demands on subcommittees and the bureaucracy. The issue is discussed on many levels, both inside and outside government. An agency, then, can be described as being embedded,
not in an iron triangle, but in an issue network. These issue networks consist of people in interest groups, on congressional staffs, in universities, and in the mass media who regularly debate an issue. The networks are contentious, with arguments and disagreements occurring along partisan, ideological, and economic lines. When a president appoints a new agency head, he will often choose someone from the issue network who agrees with his views. Bureaucracy MERIT SYSTEM AND HATCH ACT
The merit system tries to ensure that the best-qualified people get government jobs and that party politics (patronage) has nothing to do with the hiring process. In 1939 Congress passed the Hatch Act, which required employees, once they were hired, to have as little to do with political parties as possible. The Hatch Act forbids employees from engaging in many party activities. For example, they could not run for public office or raise funds for a party or candidate, nor could they become officers in a political organization or a delegate to a party convention. In the early 1970s some bureaucrats complained that their 1st amendment rights were being violated.
The issue made its way to the Supreme Court, where the justices ruled that the Hatch Act did not put unreasonable restrictions on employees rights. However, in 1993 Congress softened the Hatch Act by making many forms of participation in politics permissible. Federal bureaucrats still cannot run as candidates in elections, but they may be active in party politics. Bureaucracy CRITICISMS OF THE BUREAUCRACY red tape: the maze of government rules, regulations,
and paperwork makes government so overwhelming to citizens that many people try to avoid any contact. conflict: agencies that often work at cross purposes with one another duplication : a situation in which two agencies appear to be doing the same thing unchecked growth: the tendency of agencies to grow unnecessarily and for costs to escalate proportionately. Waste: spending more on products and/or services than is necessary. lack of accountability : the difficulty in firing or demoting an incompetent bureaucrat
Four Institutions JUDICIARY Judiciary COMMON LAW TRADITION Although the U.S. judiciary differs in many ways from the British system, the tradition of English common law is still very important to both. Common law is a collection of judge-made laws that developed over centuries and is based on decisions
made by previous judges. The practice of deciding new cases with reference to former decisions is called precedence. The doctrine of stare decisis (let the decision stand) is based on [precedent, and is a cornerstone of English and American judicial systems. So, when a Court overturns a previous courts decision, it is a major event, because to do so breaks the strong tradition of state decisis. Judiciary THE JUDICIARY IN THE
CONSTITUTION The Constitution painstakingly defines the structure and functions of the legislative branch of the government. It clearly, although less thoroughly, addresses the responsibilities and powers of the President. However, it treats the judicial branch almost as an afterthought. Article III specifically creates only one court (the Supreme Court), allows judges to serve for life and to receive a compensation, broadly outlines original and appellate jurisdiction, and outlines the procedure and limitations for those accused of
treason. Article III consists of three section: Section 1: The only court mentioned in the Constitution is the Supreme Court, and Congress is given the right to create all other federal courts. Judgeships are to be held "during good Behavior" (in other words, there are no terms of office), and judges' compensations are not allowed to be diminished while they hold office.
Section 2: The jurisdiction of the courts is defined, with all cases affecting ambassadors, ministers, and consuls going automatically to federal courts. Also, federal jurisdiction is held in cases of admiralty and maritime jurisdiction, cases involving the U.S. as a party, controversies between two or more states or between citizens of different states, and cases of states or their citizens against foreign countries. Original jurisdiction (The court has the first hearing) is given to the Supreme Court in cases involving ambassadors, ministers, and consuls and in cases in which a state is a party. Appellate jurisdiction is given in all other cases. In other
words, they can only be appealed to the Supreme Court after first being heard in a lower court. Section 2 also provides for trial by jury for all criminal (not civil) cases. Section 3: Treason is defined as not only waging war against the United States, but as "adhering to their enemies" and "giving them aid and comfort. A person may be convicted for treason only if he or she confesses in court or on the testimony of two witnesses. Punishment for treason is declared by Congress, but "corruption of blood" (paying for the treason of a relative) and forfeiture of property after the individual is
dead are forbidden. Judiciary JUDICIAL REVIEW The early Supreme Court gave few indications that the judicial branch would someday be coequal to the legislative and executive branches. Their first session began in 1790, and lasted only ten days. No cases were heard, and their time was spent admitting lawyers to practice before the Court. Not until the early 1800s did the fourth Chief Justice, John
Marshall, claim the power for the court in the famous Marbury v. Madison case. The power he claimed was judicial review, a concept implied by but not mentioned in Article III of the Constitution. Judicial review allows the courts to rule on the constitutionality of laws and actions, giving them the power to strike down or reinforce policy, not just to apply and interpret it. Judicial review is the key to understanding the unusual power of the United States judiciary. THE STRUCTURE OF THE FEDERAL COURT SYSTEM The only federal court required by the Constitution
is the Supreme Court. Article III left it up to Congress to establish lower federal courts, which they began to do in the Judiciary Act of 1789. The Constitution also does not specify how many justices shall be on the Supreme Court (originally there were six; now there are nine). Congress created two general types of lower federal courts: constitutional and legislative. Constitutional Courts Constitutional courts exercise the judicial powers found in Article III, so their judges are given the constitutional protection of lifetime terms.
There are 94 district courts, with at least one in each state, the District of Columbia, and Puerto Rico; and 13 courts of appeals, one of which is assigned to each of 12 judicial circuits, or region. A special appeals court called the U.S. Court of Appeals for the Federal Circuit hears cases regarding patents, copyrights, and trademarks, claims against the United States, and international trade. District courts are trial courts of original jurisdiction, the starting point for most litigation in the federal courts. They hear no appeals, and they are the only federal courts in which trials are held and juries may sit.
Each district court has between two and twenty-seven judges, depending on their caseloads. Their jurisdiction includes federal crimes, civil suits under federal law, and civil suits between citizens of different states where the amount exceeds fifty thousand dollars. Courts of appeal have appellate jurisdiction only; no cases go to them first. They review any final decisions of district courts, and they may review and enforce orders of many federal regulatory agencies, such as the Securities and Exchange Commission. Most cases come from the district courts. Each court of appeals normally hears cases in panels of three judges, but
important cases may include more. Decisions are made by majority vote of the participating judges. Legislative Courts Congress also has set up legislative courts for specialized purposes. These courts include the Court of Claims, the Court of International Trade, the Tax Court, and the Court of Military Appeals. Legislative courts are sometimes called Article I courts because they help carry out the legislative powers the Constitution has granted to Congress. Because they do not carry out Article III judicial powers, their judges are not protected for life; they serve fixed
terms of office, can be removed without impeachment, and may have their salaries reduced. Judiciary PARTICIPANTS IN THE JUDICIAL SYSTEM LITIGANTS The litigants include the plaintiff, or the person bringing the charges, and the defendant, or the person charged. In criminal law cases an individual is charged with violating a specific law; in civil law cases no charge of criminality is made,
but one person accuses another of violating his or her rights. Civil law defines the relations between individuals and defines their legal rights. Litigants wind up in court for many reasons. Plaintiffs may be seeking justice and/or compensation; defendants may be brought to court reluctantly, particularly if they are accused of a crime, or they may see themselves as defending their rights against a lawsuit. Litigants must always have standing to sue, or a serious interest in the case, usually determined by whether or not they have personally suffered injury or are in danger of being injured directly.
Just being opposed to a law does not generally provide standing; the individual must be directly affected by it. The concept of standing to sue has been broadened in recent years by class action suits, which permit a small number of people to represent all other people similarly situated. For example, Brown v. Board of Education of Topeka was a class action suit in 1954, when Linda Brown of Topeka, Kansas, represented black students from several school districts around the country suing for discrimination in public education. Lawyers
Lawyers have become virtually indispensable in the judicial system. In criminal cases federal lawyers are the prosecutors, or those who formally charge an individual of a crime. Prosecution falls to the Department of Justice: the attorney general, the solicitor general (who represents the government to the Supreme Court), other attorneys, and assistant attorneys, who must also serve as defense lawyers if the government is being sued. The federal government also provides public defenders for people who cannot afford personal lawyers. The 1964 case Gideon v. Wainwright determined that all accused persons in state as well as federal criminal trials should be supplied with a lawyer,
free if necessary. Prosecutors negotiate with the defense lawyers and often work out a plea bargain, in which a defendant agrees to plead guilty to avoid having to stand trial. THE JURY The right to a trial by jury is fundamental to our justice system, but most trials do not involve them. In many cases, but not all, a jury, a group of citizens (usually twelve), is responsible for determining the innocence or guilt of the accused. Trial by jury is used less often today than in the past. Defendants and their lawyers either make plea bargains or elect to
have their cases decided by a judge alone. Even in criminal cases, only a small number are actually tried before a jury. Trials by jury take more time and money than do bench trials, which are heard before judges only. THE AUDIENCE Interest groups sometimes seek out litigants to represent a cause they support. One of the most successful groups is the National Association for the Advancement of Colored People, which has defended numerous civil rights cases, including Brown v. Topeka.
The American Civil Liberties Union is another interest group that actively seeks litigants to protect principles of individual liberties. The press actively influences sensational cases, particularly if a celebrity or a highly publicized case is involved. The press corps is often instrumental in getting the public interested in a case. Judiciary THE JURISDICTION OF THE FEDERAL COURTS
The United States has a dual court system - one federal, as outlined above, and one state. The Constitution gives certain kinds of cases to federal courts, and by implication leaves all the rest to state courts. Federal courts hear cases "arising under the Constitution, the law of the United States, and treaties" (federal-question cases) and cases involving citizens of different states (diversity cases). Judiciary
THE SELECTION OF JUDGES Why do we look to venerable former justices for guidance in understanding necessary qualities for federal judges and justices? The main reason is that the Constitution is silent on their qualifications. The Constitution meticulously outlines qualifications for the House of Representatives, the Senate, and the Presidency, but it does not give us any help with judicial appointments, other than the fact that justices should exhibit good behavior. As a result, the question of who is chosen is governed
primarily by tradition. THE NOMINATION PROCESS The Constitution provides broad parameters for the nomination process. It gives the responsibility for nominating federal judges and justices to the President. It also requires nominations to be confirmed by the Senate. Hundreds of judges sit on district courts and courts or appeals, and nine justices make up the Supreme Court. Since they all have life terms, no single President will
make all of these appointments, but certainly many vacancies will occur during a Presidents term of office. The Lower Courts The selection of federal judges for district courts and sometimes for courts of appeal is heavily influenced by a tradition that began under George Washington: senatorial courtesy. Usually the Senate will not confirm a district court judge if the senior senator from the state where the court is located objects, nor a court of appeals judge not approved by the senators from the judge's home state. As a result, presidents usually check carefully with senators ahead of time, so the Senate holds a great deal of power in the appointment of federal judges.
The Supreme Court The president is usually very interested in opportunities to appoint justices to the Supreme Court, and a great deal of time and effort go into the nominations. Because justices retire at their own discretion, some presidents are able to appoint more than others. For example, Richard Nixon was able to nominate four justices in his first three years in office, but Jimmy Carter wasn't able to appoint any. SENATE CONFIRMATION Because senators suggest most nominees for federal district courts, the Senate confirmation required by the Constitution is only a formality for most.
However, for appointments to appeals courts and especially to the Supreme Court, the confirmation process may be less routine. The Senate Judiciary Committee interviews the nominee before he or she goes before the entire Senate. If the Judiciary Committee does not recommend the candidate, the Senate usually rejects the nomination. Through 2001, 28 of the 146 individuals nominated to be Supreme Court justices have not been confirmed by the Senate. SELECTION CRITERIA
Political ideology: Presidents usually appoint judges that seem to have a similar political ideology to their own. In other words, a president with a liberal ideology will usually appoint liberals to the courts. The same goes for conservative presidents. However, Presidents have no real way of predicting how justices will rule on particular issues. Behavior doesnt always reflect ideology, and political views also change. Party and personal loyalties: A remarkably high percentage of a Presidents appointees belong to his political party. Overall, about 90 percent of judicial appointments since the time of Franklin Roosevelt have gone to members of the Presidents party.
Although it isnt as common today as it once was, Presidents still appoint friends and loyal supporters to federal judgeships. Acceptability to the Senate -Because the Senate must confirm judicial nominations, the President must consider candidates that are acceptable to the Senate. Even if he does informally consult with the Senate, he may still run into problems with the Senate Judiciary Committee, who first interrogates nominees and recommends them to the full Senate. If a nominees runs into trouble in the confirmation process, they often withdraw their names from consideration. If this happens, the President must start all over again.
Judicial experience - Typically justices have held important judicial positions before being nominated to the Supreme Court. Many have served on courts of appeals, and others have worked for the Department of Justice. Some have held elective office, and a few have had no government service but have been distinguished attorneys. Race and gender - The first black American, Thurgood Marshall, was appointed to the Supreme Court by Lyndon Johnson in 1967, and the first woman, Sandra Day O'Connor, was appointed in 1981 by Ronald Reagan. (DW) Since then one other black, Clarence Thomas, and one
woman, Ruth Ginsburg, have been appointed as well. Before 1967 all justices were white and male. The percentage of women and minority federal judges appointed has increased significantly in recent years. The "Litmus Test" - Although most senators and presidents deny it, some observers believe that candidates must pass a "litmus test," or a test of ideological purity, before they may be nominated and/or confirmed to the Supreme Court. One recent litmus test supposedly has been the individual's attitude toward abortion rights. Judiciary
HOW THE SUPREME COURT WORKS The power of the Supreme Court is reflected in the work that they do, and their decisions often shape policy as profoundly as any law passed by Congress or any action taken by the president. The Court does much more than decide specific cases. It resolves conflicts among the states and maintains national supremacy. It also ensures uniformity in the interpretation of national laws, and many of the most important cases that determine the constitutionality of laws and government actions are decided in the Supreme Court. There are nine justices on the Supreme Court: eight associates justices and one chief justice. The number is set by law and has varied from six
to ten over the course of history, but it has remained at nine since the 1870s. All the justices sit together to hear cases and make decisions. Supreme Court justices are in session from the first Monday in October through the end of June. They listen to oral arguments for two weeks and then adjourn for two weeks to consider the cases and write their opinions. In the event of a tie (if one or more justices is not present), the decision of the lower court remains, although on rare occasions a case may be reargued. SELECTION OF CASES Most cases come to the Supreme Court by means of a writ of certiorari, a Latin phrase that means "made more certain." The court considers all petitions it receives to review lower
court decisions. If four justices agree to hear a case, cert (a shortened reference) is issued and the case is scheduled for a hearing. This practice is known as the rule of four. Only a tiny fraction of cases appealed to the Supreme Court are actually accepted. The Court also hears the few cases in which it has original jurisdiction according to Article III of the Constitution, but for the vast number of cases, the Court has control of its agenda and decides which cases it wants to consider. BRIEFS AND ORAL ARGUMENTS Before a case is heard in court, the justices receive printed
briefs in which each side presents legal arguments and relevant precedents (previous court decisions). Additionally, the Supreme Court may receive briefs from amici curiae ("friends of the court") individuals, organizations, or government agencies that have an interest in the case and a point of view to express. When oral arguments are presented to the court counsel for each side generally is limited to 30 minutes, a policy that often aggravates the lawyers, since justices often interrupt them to ask questions. OPINIONS Once decisions have been made in conference an opinion,
or statement of the legal reasoning behind the decision, must be formally stated. The most senior justice in the majority assigns the task of writing the majority opinion, the official opinion of the court. Unless the decision is unanimous, the most senior justice on the losing side decides who will write the dissenting opinion of those justices who do not agree with the Courts majority decision. A justice may write a concurring opinion if he or agrees with the majority decision but does so for different reasons than stated in the majority opinion
Judiciary CONSTRAINTS ON THE POWER OF THE FEDERAL COURTS 1) Policy must be made within the setting of an adversarial system, a neutral arena in which two parties present opposing points of view before an impartial arbiter (a judge.) The system is based on the assumption that justice will emerge from the struggle. Judicial power, then, is passive - the case must come to the court, and not vice versa.
2) The case must represent a justiciable dispute- an actual situation rather than a hypothetical one, and one that may be settled by legal methods.