Thursday, April 12, 2012
Written Assignment 12
What do you think can be done to improve bureaucratic performance? If you argue that the only way to improve that performance is to cut it, you should assess the ramifications of your proposed cuts would mean. For instance, if food inspection is cut from the Department of Agriculture's budget, what would take its place to ensure the safety of food? Your response should take the form of a 2-3 page paper, and be handed in at the beginning of class next Thursday, April 19.
The Federal Bureaucracy
I. Distinctiveness of the American Bureaucracy
A. Four Political Distinctions
1. Political authority shared between president and Congress
2. Most federal agencies share their functions with related agencies in state and local governments
3. The expansion of personal and civil rights during the 1960s and 1970s has helped to cause more litigation involving federal bureaus and agencies
4. The bureaucracy is much smaller in the United States than elsewhere; whereas in Europe the government accounts for about 12 percent of all employment, in the United States public employees make up less than 3 percent.
B. Growth of the Bureaucracy—the struggle for control of the bureaucracy began in 1789 with the very first session of Congress and the Washington administration, and continues to this day.
1. Bureaucracy before the New Deal—although the governments in the United States in the early years from its founding were very small, Congress and the executive branch have long fought over who would be appointed to what position.
a. Patronage—as political faction gave way to political party, appointments to various bureaucratic agencies became a way to reward political party loyalists, and thus began the “spoils system” or patronage system of government.
b. Civil Service—the patronage system began to be called into question as people began to discover graft and corruption in their government. The assassination of James Garfield by a deranged gunman named Charles Guiteau—who had convinced himself that his relatively minor assistance to the Garfield campaign deserved the award of an ambassadorship—certainly helped propel this trend, and resulted in the passage of the 1883 Pendleton Civil Service Act.
c. Growth of the Bureaucracy—was spurred first by the American Civil War, and then by the rapid industrialization of the country’s economy after the war. The growth of interstate commerce necessitated the growth of a national government along with it. The early agencies, however, did not “regulate” the economy, but rather provided research, gathered statistics, and passed out benefits. It was not until the creation of the Interstate Commerce Commission (at the insistence of the railroad industry) that government attempted to regulate the economy by any other method than managing the currency.
d. Belief in limited government and states’ rights largely kept the government small—even when these beliefs were called into question, it was done in a limited way in order to maintain a great deal of political power in the states.
2. A Change in Role—occurred as a result of the government’s response to the Great Depression and World War II. Reversing earlier decisions, the Supreme Court (under a great deal of political pressure) began to allow Congress to delegate some of its authority to make whatever decisions were deemed necessary to solve a problem or the serve “the public interest.”
a. Federal income tax—although the income tax was instituted by the 16th Amendment in 1913, the federal government really didn’t use it to fund its activities until World War II. Between 1940 and 1945, federal tax collection increased from $5 billion to $44 billion, and did not decrease significantly after the war ended.
b. Modern growth of bureaucracy—with the New Deal, government began providing many more services than it had previously—and the American people generally approved of this increased service and stability. The postwar “baby boom” meant that the country grew to be much larger than it was before the New Deal, and of course also meant that if government were to continue to provide that level of service, it would need to grow as well.
c. “Thickening” of government—to meet oversight requirements from both Congress and the Courts, new administrators had to be hired to ensure that new rules and strictures were being followed.
d. Government bureaucracy tends to be self-perpetuating, in that government agencies, once established, tend to remain in existence. These agencies do not go out of business (generally—although the Post Office may be an exception to this rule) as firms do in the private sector.
II. Federal Bureaucracy Today
A. Discretionary Authority—the power of the bureaucracy should not be measured by the number of employees, but by their ability to choose courses of action to make policies that are not spelled out in advance by law. If appointed officials have this kind of power, then how they use it is crucial to understanding modern government. There are four broad factors that explains the behavior of these officials:
--The manner in which they are recruited and rewarded
--Their personal attributes, such as their socioeconomic backgrounds and political attitudes.
--The nature of their jobs: roles and missions
--The way in which outside forces—political supervisors, legislators, interest groups, and journalists—influence how the bureaucracy behaves.
1. Recruitment and Retention—the federal civil service system was designed to recruit people on the basis of merit, not party patronage, and to retain them on the basis of performance, not political favoritism—and all of this was generally handled by the Office of Personnel Management (OPM).
a. Changes in the system—over the years, this system became more decentralized, and now most agencies do their own hiring, and examinations are used less frequently.
b. Excepted Service—is defined as being those employees hired outside the competitive service—and now make up about half of all employees in the bureaucracy. Some of these excepted employees—probably not more than 3 percent—are selected by the president for policy-making and politically sensitive posts—much like the old political patronage jobs. These new excepted service jobs fall into three broad categories:
--Presidential appointees authorized by statute
--“Schedule C” jobs, having confidential or policy-determining character
--Non-career executive assignments
c. The Buddy System—in upper level positions, recruits are often within the social network of other officials, and are hired because of these connections, in what is known as a “name-request” job.
d. Senior Executive Service (SES)—with the passage of the Civil Service Reform Act of 1978, Congress recognized that many high-level positions in civil service had important policy-making responsibilities, and that the President and his cabinet should have greater discretion and flexibility in recruitment and hiring. SES was suppose to provide that flexibility, while also retaining experienced upper-level management.
e. Agency point-of-view—because of the job security civil service provides, many employees spend their entire work lives within a single agency, and develop an “agency point-of-view” on most matters.
2. Personal attributes—Social class, education, and personal political beliefs all shape how bureaucrats behave.
a. Upper-level bureaucrats tend to be white, better educated, and more affluent than the average American (kind of like their contemporaries in the private sector).
b. Bastion of “liberalism”—upper level bureaucrats also tend to have more liberal political view than does the “average” American. This is probably due to their willingness to devoted themselves to a career in government bureaucracy, where compensation tends to be lower than in the private sector, but workers are compensated by the feeling that they are helping to create a better society.
3. Roles and Mission—People are often drawn to work within a particular government agency because of their interest in the particular realm over which the agency holds sway. Because of this, they are likely to adhere to the sense of mission or the role that a particular agency develops—as long as they sense that the agency is attempting to fulfill that mission.
4. Outside forces—bureaucrats do not operate in a vacuum. There are at least seven external forces with which a government bureau must cope:
--Executive branch superiors (like cabinet officers)
--White House staff
--Congressional committees
--Interest groups
--The media
--The courts
--Rival government agencies
At the most general level, government agencies can be divided into two main groups: those oriented toward presidential control (which tend not to have local constituencies) and those oriented toward Congressional control (which tend to have local constituencies —that is to say, decisions they make tend to have an effect locally)
a. Desire for autonomy—government bureaucrats, like people generally, prefer to be left alone so they can do their work as they wish. When this occurs, we say that the bureau has autonomy—but it generally can only maintain that autonomy as long as autonomy does not lead to complacency.
b. Agency allies—Government bureaus and agencies often develop relationships with interest groups concerned with the mission of the bureau or agency. While claims are often made that a particular agency has been “captured” by a particular interest group, it is probably closer to the truth to note that the agency is part of an issue network, in which there are a number of players.
III. Oversight
A. Congressional Oversight—Some interest groups are important to agencies because these interest groups are also important to Congress. But Congress is more important to the bureaucracy because Congress controls the budgets of these agencies.
1. The Appropriations Committee and Legislative Committees—because an agency budget has to both be authorized and appropriated, each agency serves not one master but several, and have to remain cognizant of that fact.
2. Congressional Investigations—as part of its oversight powers, Congress has also asserted the power to investigate various agencies to ensure that they are operating according to the way they were envisioned to operate.
B. Bureaucratic “Pathologies”—the difficulties we sometimes face in working with bureaucracies are often explained by referring to government “red tape” that prohibits government from functioning efficiently. There are also famous examples of government purchasing items from contractors that they could simply purchase in a store for much less. What gets left out in these stories are that these examples is that much of this red tape is created by Congressional oversight, and many of these “cost-overruns” are in reality accounting requirements.
Thursday, March 29, 2012
Written Assignment 11
The nature of federal government in the United States
Saturday, March 24, 2012
The Judiciary
I. Judicial Review
A. Background—The United States is one of the few countries in the world that allows an unelected judiciary review legislation and executive actions to determine whether they meet constitutional standards. Since 1789, the Supreme Court had judged 179 federal laws unconstitutional.
1. Marbury v. Madison—in 1801, with the requirement to hand over the reins of power to the Jeffersonian Democratic-Republicans, John Adams and his secretary of state, John Marshall, decided to pack the federal judiciary with Federalist appointees. In the haste of changing governments—and for Marshall, jobs, since he had been appointed Chief Justice of the Supreme Court—not all warrants were delivered to recipients (which was also Marshall’s job). Jefferson and his secretary of state, James Madison, were so angered by what they considered a dishonest act that they decided to leave the warrants undelivered. Madison was then sued by William Marbury, one of those promised a new federal judgeship that saw his opportunity slipping away. The opinion of the Court, written by new Chief Justice John Marshall, stated that the government was wrong in taking this action, and the Court could order the government to issue a writ so ordering the government to do so, but the legislative act authorizing this action, the Judiciary Act of 1789, was itself unconstitutional.
2. McCulloch v. Maryland (1819)—Marshall, again writing the opinion for the Court, held that the state of Maryland had no right to tax a branch of the national bank in the state because federal laws always superceded state laws. This argued that any laws promulgated at the federal level had to take precedent over state laws, and state laws in conflict with federal statutes were in fact invalid. This view was not widely accepted; in fact, President Andrew Jackson, at the end of his term, placed his treasury secretary (and former attorney general) Roger B. Taney at the head of the Supreme Court upon John Marshall’s retirement because Taney shared Jackson’s view of the supremacy of states’ rights over federal legislation.
B. Ideology—If you allow this review process to be undertaken, then one would like to have some idea of the appointee’s ideology, it would seem.
1. Activist approach—The view that the general principles underlying the Constitution and its often vague language, amplifying those principles on the basis of some moral or economic philosophy and applying these principles to the case at hand would be in keeping with the spirit of the Framers when they created the Constitution.
2. Strict constructionist approach—that judges should confine them to applying the rules that are stated in or clearly implied by the language of the Constitution.
3. Purity of essence—Obviously, neither side in this debate can claim that they stand purely on one side in opposition to the other, since both use elements of these approaches to justify their ideology on a variety of topics.
C. Development of the Federal Courts—most Founders probably expected the Supreme Court to have the power of judicial review (although they did not see fit to say anything about it in the Constitution itself), but they also expected that the Court would play a relatively minor role in the federal government.
1. National Supremacy and Slavery
a. Marbury v. Madison
c. Scott v. Sanford
2. Government and the Economy—from the end of the Civil War to the early years of the New Deal, the Supreme Court was largely concerned with protecting the rights of property from government intrusion, eventually even deciding that the 14th Amendment—which was passed in order to overturn Scott v. Sanford and provided African Americans citizenship—actually included the protection of rights of corporations from by trampled by the government. I would also respectively disagree with Prof. Wilson’s contention that the Supreme Court could not be quite accurately represented during this period as either “pro-business” or “anti-regulartion,” because, with a few significant exceptions, it behaved in just such a manner.
a. Slaughterhouse Cases (1873)
b. Schecter Poultry Corp. v. United States (1935)
3. The Protection of Political Liberty and Economic Regulation—after the Schecter Poultry decision until 1974, the Supreme Court did not overturn a single piece of legislation of federal attempts to enact regulations on business—although it did void 36 congressional enactments that violated personal political liberties.
D. Structure of the Federal Courts—the only federal court authorized by the Constitution is the Supreme Court; all other federal courts and their jurisdictions are the creation of Congress. Constitutional courts authorized by Congress that exercise the judicial powers described in Article 3 of the Constitution have been given the same constitutional protections the Supreme Court enjoys; legislative and military courts, authorized by Congress for some specialized purpose, have judges appointed to fixed terms.
1. Federal district court—the lowest federal court. Each state has at least one, along with the District of Columbia and the Commonwealth of Puerto Rico. Cases heard in federal district court involve those claims for which the federal government would have jurisdiction.
2. US Court of Appeals—plaintiffs in a federal case who feel that their case was wrongly adjudicated may appeal that case to the US Court of Appeals; the Supreme Court will generally only hear those cases that have been heard in these courts first.
3. State courts—plaintiffs must first appeal their cases through the various state courts of appeals before submitting a case to the Supreme Court—and then the plaintiff must prove that some federally-guaranteed right is in question.
4. Senatorial courtesy—although the President appoints all federal judges, Senators from various states are asked to submit nominees for positions in the federal courts within their states.
E. Jurisdiction of the Federal Courts—Federal courts are only authorized to hear cases involving questions set out in Article 3 and the 11th Amendment in the US Constitution—these are “federal question cases.” All other cases are left to the state courts. Despite these restrictions, the case load of the federal courts is enormous.
1. Writ of certiorari—this is a document issued by the Supreme Court when at least four of its members are convince that a case submitted for consideration involves a “substantial federal question” (such as whether the federal government can require all Americans to purchase health care, for instance).
F. Getting to court—in theory, the courts are the great equalizer in the federal government, since we are “all equal before the law.” In practice, however, if you do not have the means to hire a very, very good lawyer, the chances of you getting your case heard by the Supreme Court is not very good.
1. In forma pauperis
2. Fee shifting—enables the plaintiff, should they prevail in the case, to collect court costs from the defendant.
3. Standing—a legal concept that defines who is entitled to bring a case before the court.
4. Sovereign immunity—you cannot sue the government without the consent of the government
G. The Supreme Court in Action
1. Briefs—documents submitted by the lawyers for the plaintiff and the defendant that summarize the lower court proceedings, the arguments for their side, and discussing similar cases to theirs that the Court decided in their favor (called citing precedent).
2. Amicus Curiae—arguments submitted by a party not a part of the proceeding as a “friend of the court,” supporting one side or the other.
3. Opinion of the Court—submitted in writing (although sometimes read from the bench), in which the Court gives the reasons for deciding the case in the manner they did. This opinion reflects the opinion of the majority of the justices.
a. Dissenting opinion—not all opinions issued by the Court are unanimous; those justices who disagree with the majority issue a dissenting opinion, where they give their reasons for disagreeing.
b. Concurring opinion—sometimes Justices who agree with the majority do so for reasons other than those stated in the majority opinion; they will then issue a concurring opinion.
H. Power of the Courts—most cases in federal courts have little to do with public policy; at other times, however, courts can (and have) set policy.
1. The Power to Make Policy—courts have made policy by declaring laws, acts of the President, and practices unconstitutional.
a. Stare decisis—the usual practice of the court, in which they allow common practices and interpretations of the law to stand; in other words, they follow precedent.
2. Views of Judicial Activism—particular view of judicial activism are largely a result of one’s view of the particular case in which the court decides to be activist in.
3. The Causes of Activism—in order for judges to act in an activist manner, the law must be sufficiently vague to leave an opening for a new interpretation. There also must often be a change in the mindset of a substantial portion of the populace willing to go along with this change, since the court is reliant upon other branches of government to actually enforce their decisions.
I. Checks on Judicial Power
1. Congress and the Courts—Congress has a number of ways of checking the power of the judiciary. The can impeach justices accused of wrongdoing, they can refuse to confirm those they feel will make bad judge, in rare instances Congress undo an interpretation by amending the Constitution—and they can limit the types of cases reaching the Supreme Court by changing the entire jurisdiction of the lower federal courts
2. Public Opinion and the Courts—although they like to think otherwise, federal judges are effected by public opinion; see the “switch in time that save nine,” the change in opinion that Justice Owen made during the New Deal.
Thursday, March 22, 2012
Extra Credit Written Assignment
The Supreme Court of the United States will hear an unprecedented (in modern times, anyway) 3 days of testimony (6 hours worth) of testimony on the question of the constitutionality of the Affordable Care Act (ACA, or "ObamaCare"). You can get up-to-the-minute analysis from one of the brightest writers on legal issues, Dahlia Lithwick (who writes for the online magazine Slate), as well as coverage from NPR. Using these sources, and any others you might consult, answer the following questions: What are the the major questions in dispute? Which side do you think presented the most convincing arguments? Who do you think will prevail? Who do you think should prevail? Why?
Sunday, March 18, 2012
Assignment 10
The constitutional basis of presidential power is quite modest, yet today the President of the United States is often thought to be the most powerful man in the world. Is that an accurate assessment? Why did this office evolve to encompass this greater power? Are there any attempts to restrict this power? Have they been successful? Why or why not? These answers should fill a two-three page paper, in a conventional 12-point font, with one inch margins, and handed in at the beginning of class on Thurday, March 29.
Alternatively, or in addition to the above option, you may write a 2-3 page assessment of the events depicted in All the President's Men. Do you think, as President Nixon's defenders insist, that this was a political witch hunt, or did the events warrant such a thorough, dogged investigation? Why, or why not.
Alternatively, or in addition to the above option, you may write a 2-3 page assessment of the events depicted in All the President's Men. Do you think, as President Nixon's defenders insist, that this was a political witch hunt, or did the events warrant such a thorough, dogged investigation? Why, or why not.
All the President's Men
All the President's Men (1976) was the dramatization of the book of the same name, written by the Washington Post's two main reporters on the Watergate Scandal, Bob Woodward and Carl Bernstein. In this movie, we see the interplay between the presidency and the press. The White House connection to this incident was through E. Howard Hunt and G. Gordon Liddy, who headed up the "plumber's operation" at the White House (plumber's stop leaks--get it?). Eventually, this "third-rate burglary" eventually brought down President Nixon, who resigned the office (the only person to do so) to avoid sure impeachment and likely conviction by the US Senate.
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