Chapters 13-14 Flashcards
What Is the Federal Bureaucracy?
Makeup:
Millions of permanent employees (civil servants).
Thousands of short-term workers (political appointees of the president).
Function:
Implement policies established by Congress or the president.
Develop programs and policies to achieve goals of laws.
- When laws are specific, bureaucrats have very little discretion. More commonly, laws provide general guidelines.
Regulations:
Government rules that give government control over individuals and corporations by restricting behaviors.
- Developed via the notice and comment procedure. Very political.
- Influence most aspects of everyday life.
Bureaucrats often have influence on the way government shapes regulations.
Bureaucratic expertise and its consequences:
Bureaucrats are experts; in general, more so than members of Congress or the president.
Experts help create a state capacity.
Criticism of bureaucracies:
Too much red tape/unnecessary rules (also known as standard operating procedures).
Problem of control:
Principal-agent game.
- An agent (group) works for another (the principal).
- Agents have information that the principals don’t.
- How to let agents maximize their expertise while still making sure they do what they should?
Regulatory capture.
- Bureaucrats work to benefit a small group of individuals/corporations instead of the public.
Civil service vs. Private sector
Civil service jobs:
Job level tied to experience and education.
Seniority helps determine promotions.
After three years of satisfactory job performance, a civil servant cannot be fired without cause.
- Helps remove politics from the bureaucracy
The Hatch Act
Limits political activity. Prohibits federal workers from engaging in organized political activities. Senior White House staffers are exempt from these restrictions. However, they are prevented from using government resources for political purposes.
Controlling the Bureaucracy
Lawmakers must determine how to get the benefits of bureaucratic expertise without giving bureaucrats complete control over their own behavior. Reduce or eliminate bureaucratic drift.
- Limit discretion by giving direct orders, even if this limits their bureaucratic expertise.
Lawmakers can control bureaucratic decision by setting policy goals and choosing where the agency is located within the government structure. Thereby also controlling who runs the agency.
Monitoring:
Oversight from Congress.
Advance warning.
- Requires bureaucrats to disclose their proposed actions before they take effect.
Investigations.
- Police patrol oversight: constant monitoring
- Fire alarm oversight: Congress responds to complaints about a bureaucratic agency
Correcting violations:
Legislation and executive orders can correct problems.
Correcting problems is most challenging when Congress and the president disagree.
This is when agencies often have the most discretion.
The Weakest Branch
The Founders disagreed on judicial independence.
Little in the Constitution on the judiciary
Judicial review not mentioned.
- Most details on Court structure come from the Judiciary Act of 1789.
- Congress set up a judiciary system, including the lower court structure, in the Judiciary Act of 1789. This also included creating 13 district courts and three circuit courts. It set the initial Supreme Court size at six. It created appellate jurisdiction for the court system
Judicial Review
Judicial review (Marbury v. Madison).
- Right to strike down a law
- Made Court a coequal branch of government.
Rarely used.
- Court has struck down ~180 national laws (less than 0.25% of all passed).
- Court has struck down ~1,400 state laws.
The Court performs both constitutional interpretation (is the law constitutional?) and statutory interpretation (applying national and state law to specific cases).
Fundamentals of the Legal and Judicial systems
Plaintiff: the person or party who brings a case to court
Defendant: the person or party against whom a case is brought
Suit: a legal controversy between parties that involves the application and interpretation of state and/or federal law, disputed facts, and issues in actual dispute
Appeal: the act of taking a suit decided in a lower court to a higher court for review because at least one of the parties to the suit disagrees with the outcome (decision and judgement) in the lower court
Common Law: judge made law, the law that results from the interpretations and decisions of courts of appeal. It acts as precedent in subsequent cases of similar legal/factual issues.
Supreme Court strongly honored precedent in first 100 years of its existence; the modern Court is more willing to overturn precedent.
Also note the existence of another kind of lawsuit: class-action lawsuits can hold businesses accountable for fraud or selling dangerous products.
Collusion: the requirement that litigants in the case cannot want the same outcome
Standing: means the petitioner has a legitimate basis for bringing the case to the Court
Mootness: the requirement that a controversy must still be relevant when the Court hears the case
Jurisdiction: the scope of a court’s authority to hear and decide cases (which court: state, federal, limited, general)
Venue: the appropriate court to hear the case when multiple courts have jurisdiction over the matter (which court house)
Court fundamentals:
Plea bargaining often occurs before court verdicts are ever reached.
Standard of proof in criminal court is “beyond a reasonable doubt”; in civil court, it is the “preponderance of evidence”.
Burden of proof is on the plaintiff.
Adversarial system gives both sides of a case access to the relevant information.
State-Level Judicial Selection
State-level trial courts.
Appointment:
Governor (6 courts)
Legislature (5 courts)
Elections:
Partisan (39 courts)
Nonpartisan (34 courts)
Missouri Plan (46):
Governor nominates candidate from list compiled by screening committee.
Confirmation of nomination by state senate
Periodic nonpartisan retention elections.
Controversy over judicial elections: some people desire the responsiveness associated with elections, while others are concerned about conflicts of interest and interest group involvement.
Federal Court Appointments
Rules:
No requirements on qualifications
Nominated by president
Confirmed by Senate (often contentious)
Supreme Court Access
How cases come to Supreme Court.
Original jurisdiction:
Interstate conflicts and so on.
Matter of right:
Congress asks the Supreme Court of the United States (SCOTUS) to review case.
Writ of certification:
Lower court asks SCOTUS to clarify a point.
Writ of certiorari:
Loser from case files petition to SCOTUS. This is the most common one.
Supreme Court Case Selection
Cert pool:
Law clerks screen all cases and recommend those that they feel should be heard.
Discuss list:
Justices add items to agenda (order decided by chief justice).
Rule of Four:
Four justices have to vote to grant a case certiorari.
Role of solicitor general:
Presidential appointee to the Department of Justice asks SCOTUS to review case.
Rule 10 of The Rules of SCOTUS
A case is more likely to be heard when:
- there is conflict between appeals court opinions
- there is conflict between a federal appeals court and a state supreme court on important federal question
- a lower-court decision has departed from accepted course of proceedings
- a state or appeals court has ruled on a federal question that has not yet been addressed by the Court, or
- a state or appeals court ruling conflicts with SCOTUS precedent
Supreme Court process
Selection
Briefs (including amicus curiae)
Oral arguments
Conference
Opinion writing (Chief justice or senior justice assigns the opinion)
Types of Supreme Court Decisions
Majority opinion: The core decision of the Court that must be agreed upon by at least five justices. The majority opinion presents the legal reasoning for the Court’s decision.
Concurring opinion: Written by a justice who agrees with the outcome of the case but not with part of the legal reasoning. Concurring opinions may be joined by other justices. A justice may sign on to the majority opinion and write a separate concurring opinion.
Plurality opinion: Occurs when a majority cannot agree on the legal reasoning in a case. The plurality opinion is the one that has the most agreement (usually three or four
justices). Because of the fractured nature of these opinions, they typically are not viewed as having as much clout as majority opinions.
Dissent: Submitted by a justice who disagrees with the outcome of the case. Other justices can sign on to a dissent or write their own, so there can be as many as four dissents. Justices can also sign on to part of a dissent but not the entire opinion.
Per curiam (Latin for “by the court”) opinion: An unsigned opinion of the Court or a decision written by the entire Court. However, this is not the same as a unanimous decision that is signed by the entire Court. Per curiam opinions are usually very short opinions on noncontroversial issues, but not always. For example, Bush v. Gore was a per curiam opinion. Per curiam decisions may also have dissents.
Legal factors to SCOTUS decisions
Precedent.
Constitutional language.
- Strict Construction: Sticking to the language of the Constitution itself, i.e., what do the words say exactly.
- Original Intent: When the strict language of the Constitution is unclear, ambiguous, or in some cases silent, you go to the historic documents of the time to try the glean what the Founders originally intended.
- Living Constitution: When interpreting the Constitution, you take into account the evolving national attitudes and circumstances and interpret it according to modern understandings rather than relying on the test alone.
