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that the state of Maryland had no right to tax a branch of the national bank in the state because federal laws always superceded state laws.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.
The Presidency
I) The Power of the Presidency
A) Powers Granted to the President Alone by the Constitution
1) Serve as Commander-in-Chief of the Armed Forces
2) To commission officers of the armed forces.
3) Grant reprieves and pardons for federal offenses (except in cases of impeachment).
4) Convene Congress is special sessions.
5) Receive ambassadors
6) Take care that the laws be faithfully executed.*
7) Wield “executive power.”
8) Appoint officials to lesser offices.
B) Powers of the President Shared with the Senate
1) Make treaties
2) Appoint ambassadors, judges, and high officials.
C) Powers of the President Shared With Congress as a Whole
1) Approve legislation
II) The Evolution of the Presidency
A) Establishing the Legitimacy of the Presidency—This is not something we think of much today (even with everything that occurred in the 2000 election, few people argue today that George W. Bush was an illegitimate president). The early presidents had been prominent political leaders during the Revolution, and the office of the President was relatively small, and not terribly influential. Political appointees tended to be well-known and well-regarded, and willing to put the good of the nation above “faction.”
B) The Jacksonians and the Re-emergence of Congress—at a time roughly corresponding to the presidency of Andrew Jackson (1829-1837), broad changes began to occur in American politics.
1) Mass political participation—universal white manhood suffrage.
2) Emergence of modern political parties
3) The Cult of Personality—Jackson saw himself (and, just as importantly, was seen by many other people) as a “tribune of the people.” As the personification of the voice of the American people, Jackson vetoed more legislation—on both constitutional and policy grounds—than all of his predecessors combined.
4) End of the Jacksonian Era—with the end of Jackson’s term in office Congress—particularly the Senate—reasserted itself, and remained the dominant political body for much of the next hundred years or so (with some notable exceptions).
5) Lincoln and the Civil War—Lincoln, of course, was the major exception that proves this rule. Lincoln greatly increased the powers of the presidency, which were legitimized by the crisis caused by the American Civil War. Lincoln broadly interpreted his powers as Commander-in-Chief of the Armed Forces, as well as his charge to “take care that the laws be faithfully executed.”
6) Theodore Roosevelt and Woodrow Wilson—through force of personality—especially on the part of Roosevelt, who was also quite adept at manipulating the press—both Roosevelt and Wilson were able to win back some control from Congress. After defeating Wilson’s proposed League of Nations, however, Congress was able to regain much of the power it had lost before 1932.
III) The Modern Presidency
A) The White House Office—the “West Wing” of television fame. The White House Office consists of aids largely drawn from the president’s campaign staff, who themselves were drawn to the campaign because of their personal loyalty to the president or they shared the president’s political outlook. The White House staff do not have to be confirmed by the Senate, as many other presidential appointees must be.
1) Ways of Organizing White House Staff
a. Circular structure—a few key aids report directly to the President. This has the advantage of providing the president with lots of information to make decisions, but has the weakness of sometimes providing the president with conflicting information, and therefore slowing decision making—or encouraging the wrong decisions to be made.
b. Pyramid structure—this hierarchical structure has clear chains of command, but also stifles the flow of information upward.
c. Cluster structure—uses ad hoc task forces and key advisers reporting directly to the president with no clear chain of command. This has the advantage of relying upon subject expertise, but shares the problem of also hearing conflicting opinions and slowing the decision-making process.
B) The Executive Office of the President—the agencies that make up the Executive office perform staff functions for the president, but are not housed within the White House—and significant numbers of personnel must be confirmed by the Senate.
1) Office of Management and Budget (OMB)—The OMB is tasked with assembling and analyzing the figures the president submits to Congress for the yearly national budget, and studies the operations of the executive branch to devise reorganization plans and improve the flow of information about government programs, as well as reviewing the cabinet departments’ budgeting proposals.
2) Council of Economic Advisors—a small group of economists who advise the president on economic matters, suggesting policies to be implemented.
3) US Trade Representative—Provides expertise on trade policy, and helps to negotiate trade agreements between the United States and other countries.
4) Council on Environmental Quality
5) Office of Science and Technology
C) Cabinet—in the modern era, the cabinet consists of temporary political appointees who preside over self-perpetuating bureaucracies; rarely can cabinet officers recommend policies based on the information they gather from their agencies.
D) Independent Agencies, Commissions, and Judgeships—the president can also nominate people to four dozen or so commissions and agencies (like the Federal Communications Commission—the FCC). In the agencies that are quasi-independent, members are appointed for a definite term of years (which may overlap into another president’s term of office), while other agency heads serve at the pleasure of the president. Federal judges are appointed by the president, confirmed by the Senate, and serve during their “good behavior” (or, effectively, until they chose to retire or die).
IV) Who Gets Appointed
A) Popularity and Influence—while every president strives to retain personal popularity with the American public because of the influence his has over Congress, it is unclear exactly how great this influence is (particularly during the present time). American voters rarely vote for a Congressional representative because s/he will be friendly toward the president; it is more likely to be in reaction to the dissatisfaction with the party in power. This is usually borne out by election returns in non-presidential years, when the president’s party often loses more congressional seats than it gains.
B) The Decline in Popularity—in the modern era, every president except Eisenhower, Reagan, and Clinton lost popular support between the time their political term began and it ended.
1) The “honeymoon” period—the president is usually most popular immediately after his election in office—although none reached the level of popularity of Franklin D. Roosevelt during his first 100 days in office.
V) Presidential Character
A) Dwight D. Eisenhower
B) John F. Kennedy
C) Lyndon B. Johnson
D) Richard M. Nixon
E) Gerald R. Ford
F) Jimmy Carter
G) Ronald Reagan
H) George H. W. Bush
I) Bill Clinton
J) George W. Bush
K) Barack Obama
VI) The Power to Say No
A) The Veto—when the president refuses to sign a piece of legislation, he prevents it from becoming law unless Congress can muster two-thirds of its membership to override this veto.
1) Veto message—often, a president will make a statement explaining his reason for refusing to sign a particular bill
2) Pocket veto—when the president does not sign a bill within 10 days of the ending session of Congress, it is called a “pocket veto.”
3) 10-day limit—the president has ten days to veto legislation; if he fails to sign a bill, or issue a veto, before the ten days are up, the legislation automatically becomes law.
B) Executive Privilege—although presidents have long claimed to be able to shield their communications from interlopers from Congress or the judiciary, the Supreme Court has been very reluctant to acknowledge that the president can actually invoke this privilege.
C) Impoundment of Funds—Presidents have (sometime in the past) refused to spend money appropriated by Congress for particular purposes that they oppose. While this battle was long-standing (reaching all the way back to Thomas Jefferson), it was not until Congress passed the Budget Reform Act of 1974 that they attempted to force the president to spend all the money they appropriated. This particular law has not yet been litigated before the Supreme Court, but it should be noted that the idea of a legislative veto upon which the entire notion rests has been found to be unconstitutional.
VII) The President’s Program
A) Putting Together a Program—there are two ways for a president to put together a program for her administration: to try to develop policies for every possible program, or to concentrate on just a few programs. There are also several ways to attempt to implement this program
1) The Trial Balloon—to leak parts of the proposed policy to see how they are received.
2) In (relative) secret—to attempt to develop the policy in secret, and not to leak details to attempt to gauge public support.
B) Measuring success—whether to gauge success by the number of proposed bills the president is able to get through Congress, or whether to count the number of favorable votes taken on which the president’s side prevails (note there is no accounting in this process for the number of proposed programs that work as they were proposed).
VIII) Presidential Transitions
A) The Vice President—Eight times the vice president has become president because of the death of his predecessor; only three times since Thomas Jefferson has a man who served as vice president been the elected successor—Martin Van Buren, Richard M. Nixon, and George H.W. Bush.
B) Problems of Succession—with the precedent of John Tyler, who assumed the full duties of the presidency after the death of William Henry Harrison, it was clear that the vice president would become president upon the president’s death. A question remained, however, who should become the next vice president. That question was solved by the passage of the 25th Amendment, ratified in 1967 (after Lyndon Johnson succeeded John Kennedy as a result of Kennedy’s assassination), which created a process to choose a new vice president, and also permitted the vice president to assume the duties of the president should the president become incapacitated.
C) Impeachment—The president and federal judges can be impeached for “treason, bribery, and high crimes and misdemeanors.” While this seems to indicate that impeachment should be limited to serious offenses, the two presidents who were impeached—Andrew Johnson and Bill Clinton—were largely convicted of having policies unpopular with Congress.
IX) The President and Public Policy
A) The President v. Congress—the president and Congress are rivals, even when they are from the same political party. This rivalry springs from two sources. First, the Constitution requires the two branches to serve its own needs, and they inevitably battle to do so. Secondly, the president and Congress serve to different political constituencies; each member of Congress answers to a local constituency, while the President was elected by a national constituency.
B) The President and Foreign Affairs—because Congress is largely constricted by the Constitution on matters of foreign affairs, these matters have largely been left to the presidency. Within the executive branch, however, the president is challenged by his Secretary of State, who largely controls these affairs. In the modern era, the Secretary of State has been challenged by another executive officer, the Director of the National Security Council, as well as by the Director of the Central Intelligence Agency. With the growth of the Defense Department, and its ability to command funds, many of these efforts have been duplicated and rivaled by the Intelligence wing of the Department of Defense.
C) Congressional Response—Congress has attempted to restrict this unbridled growth of the foreign policy apparatus in the executive branch by passing a number of laws, the most important of which was the War Powers Act of 1973, passed over President Nixon’s veto. This limits (or, attempts to limit), where the president can commit American armed forces.
D) The President and Economic Policy—while the American people are largely supportive and forbearing in regard to foreign policy, the same cannot be said for economic policy—in part, because economic policy had an immediate effect on the lives of Americans. Ironically, the president has less control over economic policy, in part because economists often do not agree on the best policy for immediate circumstances, and because they are so bad at predicting what the economy will look like even six months in advance. Control of economic levers is also dispersed. The president and his administration also have direct control over a small portion of the federal budget, so that even severe cuts to those parts under his control would have little impact—and perhaps the most important economic institution in the United States, the Federal Reserve Board (or the Fed, as it is known), is an independent body over which the president has very little control.
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