The bureaucracy and the courts
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The Bureaucracy and the Courts. Institutions of Government. The Federal Bureaucracy. Bureaucracy = hierarchical structure that uses task specialization, operates on the merit principle, and behaves with impersonality Fourth Branch of Government (Executive Branch)

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Institutions of Government

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The bureaucracy and the courts

The Bureaucracy and the Courts

Institutions of Government


The federal bureaucracy

The Federal Bureaucracy

  • Bureaucracy = hierarchical structure that uses task specialization, operates on the merit principle, and behaves with impersonality

  • Fourth Branch of Government (Executive Branch)

  • Thousands of federal agencies and institutions that implement and administer federal laws and programs – implementers of policy

  • Bureaucrats: government employees who work in the executive branch in executive departments and independent federal agencies

  • 2000 bureaus, divisions, branches, offices

  • 2.7 million federal civilian workers


Four types of agencies

Four Types of Agencies

1. Cabinet/Executive Departments

  • 15 Executive Departments

  • Conduct broad areas of government operations - responsible for implementing the policies and programs passed by Congress

  • Secretaries are the CEO’s of the departments

  • Rest of the departments are divided into subdivisions, bureaus, and offices with specialized areas of work


Four types of agencies1

Four Types of Agencies

2. Government Corporations

  • Provide a service that could be handled in the private sector

  • Charge for services but often less than private industry

  • Amtrak, TVA, Post Office

    3. Independent Regulatory Commissions

  • Regulate specific economic activities or interests

  • Enforce rules and programs designed to protect the public interest

  • Governed by 5-10 member board of commissioners appointed by the president and approved by senate

  • Fixed terms - cannot be fired

  • NLRB, FEC, FCC, SEC, EPA, Federal Reserve Board

    4. Independent Executive Agencies

  • Provide services, not regulations

  • NASA, National Science Foundation, CIA


The bureaucrats

The Bureaucrats

  • Andrew Jackson and the Spoils System – Patronage

  • 1883 – Pendleton Act – Civil Service System- Merit Based

  • Merit Based:

    • Hiring based on exam scores, experience, or qualifications

    • Promotions based on skill, performance, and ratings

    • Designed to ensure talented and skilled employees

  • Nonpartisan system of hiring:

    • Not based on political ideology or friendship, based on merit

    • Designed to keep consistency in the execution of laws – insulated from firing by new president

    • Hatch Act 1939 – Civil Service employees may not engage in political activities while on duty, when off duty they may not run for elected office or solicit contributions


The bureaucrats1

The Bureaucrats

  • Three Methods Today:

    • Competitive Service- Office of Personal Management – Civil Service Exam- OPM suggest three candidates and the agency hires one – now about 50%, used to be 85%

    • Excepted Service – Hired directly by agencies without civil service exam – CIA, FBI, Post Office – have their own selection process

    • Presidential Appointment – Plum Book – about 500 top positions and 2500 lesser positions

  • General Schedule Rating (GS 1-18)

    • GS 1- 15 - Career bureaucrats – very hard to fire, often just moved around instead (independence and consistency)

    • GS 16-18 – Senior Executive Service – much easier for the president to remove or reassign (9000)

  • Today represent cross-section of American society, Civil Rights Legislation


How the bureaucracy works

How The Bureaucracy Works

  • Two main jobs:

    1. Implementation: translating the goals of a policy to an operational program, Congress announces goals in broad terms the bureaucracy works out the details

    • President issues executive order either instructing an existing agency to carry out the law or creates a new agency to do so

    • Agency sets up rules and guidelines for the program following executive order, coordinates resources and materials needed to implement, hires necessary employees

    • Designed to help the President carry out laws; Assistance in instituting public policy

    • i.e. – Head Start and Department of Health and Human Services, Clean Air Act – Environmental Protection Agency

      2. Regulation: Use of government authority to control or change some practice in the private sector – quasi- judicial hearings for those in violation – administrative adjudication

    • Security and Exchange Commission Regulates the Stock Market

    • Federal Reserve – sets interest rates

    • USDA and FDA – Food Safety

    • FCC – Communications

  • Meant to separate politics from policy administration

  • Assures continuity in Government


  • Iron triangle v issue groups

    Iron Triangle v. Issue Groups

    • Interest Groups, Congress, and Bureacracy all work together to design and implement laws – Two Theories:

    • Iron Triangle or Subgovernments – composed of congressional committee, bureaucratic agency, and interest group – work to design implementation and regulation of programs for a specific area

      • Interest groups provide money, resources and information to Bureaucratic Agency and Congressional Committee

      • In return they hope for favorable legislation from Congress and favorable regulations from the Bureaucracy

        (i.e. - Commerce Committee, NLRB, and AFL)

    • Issue Groups/networks – more common today because so many different interest groups with different concerns – have worked to break up power of iron triangles – Emergence of Civil Rights and Environmental Groups – Broker State


    Problems with implementation

    Problems with implementation

    • Faulty Program Design – sounds good politically, impossible to implement

    • Lack of Clarity in Congressional Policy Goals – Often too broad

      • The Federal Voting Rights Act specified that areas that have a significant minority who speak a language other than English must be given ballots in the other language.  This is why federal bureaucrats, on behalf of the Lumbee Indians, ordered three counties of North Carolina to print ballots in Lumbee.  The only trouble is there is no Lumbee language.  There was once, but the Lumbees abandoned it when white settlers moved into the area.  The beleaguered North Carolina officials considered applying for a federal grant to invent a new Lumbee language and teach it to the Lumbees.

    • Lack of Resources and Funding

      • Body Armor in Iraq, Secure Fence Act, FDA, ICE


    Problems with implementation1

    Problems with implementation

    • Standard Operating Procedures and Red Tape – meant to ensure fair implementation but often become obstacles to action

      • Takes SSA 1 year to process disability request

      • The Environmental Protection Agency managed to reduce one of its forms to a single page.  But it had to provide a 90-page instruction book for filling out the form.

    • Administrative Discretion – Welfare Agents – street level bureaucrats

    • Fragmentation – several departments and agencies responsible to carry out policy

      • OSHA ordered a Massachusetts supermarket to put a nonskid floor in its workplace.  The Agriculture Department made the market take it out again, and put in a tile floor for sanitation.

      • Counterterrorism – 46 Federal agencies (9/11 and DHS) - CIA, Air Force, NSA, FBI, FAA, INS, TSA

      • Welfare – 10 different departments and agencies


    Problems with regulation

    Problems with Regulation

    • Raises Prices – cost of regulations is passed on to the consumer (companies must spend money to meet regulations – environment, work conditions)

    • Hurts Americas competitive position abroad – other countries have less regulations for worker safety and environmental protection

    • Difficult to enforce – License, complaints, inspectors

    • Do not always meet desired goals

      Movement towards deregulation – lifting government restrictions on business, industry, and the professions – Reagan 1980s- Savings and Loans Crisis, George W. Bush 43 – 2007 – Real Estate Market Collapse

      Problem with both implementation and regulation: Bureaucrats are not elected and yet do the most actual governing - but who else could?


    Bureaucratic independence

    Bureaucratic Independence

    • Public Policy is complex – too much for Congress and President to handle – need expertise – give authority to bureaucracy

    • Discretionary Authority – fills in details in legislation – broad goals

    • Merit based employment and tenure

    • Independent agencies and regulatory commissions – operate without involvement – hearings and administrative adjudication


    Executive control of the bureaucracy

    Executive Control of the Bureaucracy

    • Appoint people who agree with them politically to head up agencies and departments - Career Bureaucrats follow their directives

    • Issue Executive Orders – used to implement statutes(laws), treaties, and provisions of the constitution

    • Alter the budget of an agency – OMB

    • Reorganize an agency or department - DHS


    Legislative and judicial control of the bureaucracy

    Legislative and Judicial Control of the Bureaucracy

    • Legislative:

      • Approve Presidential appointments to head up agencies

      • Alter an agencies budget – appropriations

      • Hold Congressional oversight hearings (standing committees) to evaluate performance

      • Create and abolish agencies – change agencies functions

      • Rewrite legislation to either change it or clarify to goals of a policy

    • Judicial:

      • Issue injunctions and rule on due process and civil rights


    Courts in the united states

    Courts in the United States

    • Three tiers at both state and federal levels

      • Trial Courts (Court of Original Jurisdiction) – hear the actual facts of the case – 90% of cases end here

      • Appellate Courts (Appellate Jurisdiction) – review the legal issues (not the facts) to determine if an additional trial is needed – one side must request appeal

      • State/Federal Supreme Court – Court of Last Resort

    • Cases can either be criminal or civil

    • Participants are called litigants – plaintiff v. defendant (Criminal cases - plaintiff is the city, state, or federal government)

    • Lawyers represent both sides – Prosecutor (District Attorney, US Attorney) v. Defense Attorney

    • Class Action Suits


    Structure of the federal court system

    Structure of the Federal Court System

    • 94 District Courts – Courts of Original Jurisdiction

      • Only federal courts to hold trials and have juries

      • 2 to 28 judges appointed per court depending on amount of trials – usually only one judge presides over a case

      • Hear cases involving federal crimes, federal lawsuits, bankruptcy, maritime law, naturalization (most criminal and civil trials at local and state level)

      • Governments side is represented by US Attorney in that district (appointed by the President)

    • Courts of Appeals – 12 judicial circuits

      • 6 to 28 judges appointed to each circuit

      • Usually hear cases in panels of three judges

      • All appeals from district courts plus review and enforce orders from federal regulation agencies (bureaucracy)

      • Focus on correcting errors of procedure and law – hold no trials and hear no testimony

    • United States Supreme Court


    United states supreme court

    United States Supreme Court

    • Eight Associate Justices and One Chief Justice

    • Each justice can hire up to four clerks

    • All nine hear all cases unless one recuses him/herself

    • Supreme Court decides which cases it will hear

    • Supreme Court is the Court of Original Jurisdiction in matters cases involving foreign diplomats/countries, between the US and a state, between two or more states

    • Most cases the Supreme Court is the court of last resort on appeals from either a US Court of Appeals or a State Supreme Court

      • Case must involve a substantial federal question – does not hear cases involving state laws or criminal procedures – i.e. constitutional matters, commerce clause, civil rights


    Federal judicial nominations

    Federal Judicial Nominations

    • Presidents want to choose judges whose political philosophy matches their own – Democrats – Liberal, Republicans - Conservative

    • District and Appellate Courts

      • Senatorial Courtesy – Senate will not confirm a nominee if the Senator from that district/circuit is the same party as the president and objects – therefore Senators from the same party have a large say in who is nominated – informal tradition

      • Since appellate circuits are usually in more than one state, President has more say but will still take recommendations from Senators from those states

    • Supreme Court

      • President makes decision for nominee alone

      • Chief Justice may come from court or from outside

      • Supreme Court nominees are a big part of a President’s legacy

    • In all cases, candidates are reviewed by the DOJ, FBI, and ABA and given a rating (highly qualified, qualified, not qualified) by all three

    • Litmus Test – increasingly important to presidents that nominees not only be qualified but also reflect the political and judicial philosophy of the President – i.e. abortion


    Federal judicial confirmation

    Federal Judicial Confirmation

    • Senate Judiciary Committee holds hearings on all nominees

      • Nominees complete a long complex questionnaire about their career, rulings, writings, associations, etc.

      • Nominees are questioned by the committee

      • Committee votes on whether or not to recommend – either way the nominee gets a vote in the full Senate

    • Entire Senate votes to confirm – majority

      • Historically this was the easy part, judges often confirmed very quickly once approved by Judiciary Committee

      • Today - opposition party often filibusters

      • Cloture – end filibuster, 60 votes needed, this means that judges and justices in reality need 60 votes, not a majority to get confirmed

      • Nuclear Option – November 2013 – Majority vote to stop filibuster for executive appointments to federal courts and bureaucracy (Does not impact cloture rules for bills or Supreme Court nominees)

      • 20% of Presidential nominees have been rejected by the Senate

    • There are currently 86 vacancies in federal courts, 49Nominees are pending confirmation


    Supreme court justices

    Supreme Court Justices

    • Almost all have been white, male, protestant, all have been lawyers

    • Today:

      • 1 African American, 1 Hispanic, 3 Women

      • 6 Catholics (24%), 3 Jewish (2%)

    Chief Justice

    John Roberts

    C- 2005

    Antonin Scalia

    C- 1986

    Anthony Kennedy

    C - 1988

    Clarence Thomas

    C- 1991

    Ruth Bader Ginsberg

    L- 1993

    Stephen Breyer

    L- 1994

    Samuel Alito

    C- 2006

    Sonia Sotomayor

    L- 2009

    Elena Kagan

    L -2010


    Judicial philosophy

    Judicial Philosophy

    • Conservative v. Liberal – Size of Government, Freedom v. Order, Strict v. Loose constructionists

      • Conservatives: Roberts, Scalia, Thomas, Alito, (Kennedy – Swing Vote)

      • Liberals: Breyer, Ginsberg, Sotomayor (?), Kagan (?)

    • Judicial Restraint v. Judicial Activism

      • Restraint – philosophy in which judges play minimal policy-making role; defer to the decisions made by elected representatives of the people in the legislative and executive branches

      • Activism – philosophy in which judges make bold policy decisions; judges should use the law to promote justice, equality, and personal liberty; take an active role in using its powers to check the actions of Congress, legislatures, the executive branch and agencies


    Supreme court s decision to hear cases

    Supreme Court’s Decision to Hear Cases

    • Over 8000 cases appeal to the SC every year- court usually hears between 80 and 100

    • Meet once a week to discuss potential cases – each justices reviews a share of cases and then determines whether or not to bring them up as a potential case to hear - discuss list (30%)

    • ‘Rule of Four’ – If four justices want to hear a case it will be heard

    • Cases are more likely to be heard if:

      • Fit policy interests of the justices - Agenda Setting

      • Brought to the court by the Solicitor General (high ranking member of DOJ responsible for representing the government at the Supreme Court)

      • There are many amicus curiaebriefs from many interest groups

    • Writ of Certiorari – formal document that calls the case to the Supreme Court

    • Most cases are appellate jurisdiction - Substantial federal question

    • Judicial Review – can review the constitutionality of lower court decisions, state and federal laws, and executive orders – Marbury v. Madison

    • Rejection of a case can sometimes be as telling as accepting a case (means the court confirms the lower courts decision)


    Supreme court decisions

    Supreme Court Decisions

    • Write approximately 80 formal decisions a year and a few dozen by per curiam (decision without written explanation)

    • Hears cases from the first Monday in October until late June

    • Before hearing case both sides file briefs outlining the facts of case and pertinent case history, Other interested parties (government, corporations, interest groups) file amicus curiae briefs – Justices review all this before case (clerks help)

    • Oral Arguments – lawyer representing each side is given 30 minutes – questioned by the justices

    • Conference – justices meet in conference to discuss the case and issue votes

      • Stare Decisis – ‘let the decision stand’ – judicial precedent

      • Doctrine of Original Intent (Judicial Restraint, Conservative)

    • Opinions – statements of legal reasoning behind decisions

      • Majority Opinion- CJ either writes or appoints if in majority, if not most senior justice writes or appoints)

      • Dissenting Opinion, Concurring Opinions

    • Opinions are circulated and revised

    • Final Vote and Announcement


    Judicial implementation

    Judicial Implementation

    • Once decisions are made they must be implemented - Courts have to rely on the other branches of government to do this

    • How rapidly and how well they are implemented depends on the support of the President, Congress, and State Governments

    • Interpreting Population - Judges and lawyers must understand ruling – Stare Decisis and precedent

    • Implementing Population – must understand the decision and find a way to implement – can be a large population – schools (Engel, Brown), Police (Miranda) – depends on support of bureaucracy and state governments

    • Consumer Population – the people the decision affects – must know about the decision and demand the effects/rights it implies


    Supreme court and public opinion

    Supreme Court and Public Opinion

    • Generally the SC is considered the most independent branch, removed from pressures of the public and politics

    • Supreme Court is insulated from public opinion

      • Appointed not elected

      • Serve life terms

      • Control their own docket and agenda

      • Limited media access to Supreme Court Hearings

    • How Public Opinion does affect the Supreme Court

      • Appointment and Confirmation Process – justices outside public opinion will not be nominated or confirmed

      • Generally will not go against a public consensus

      • Public Officials must execute their decisions

      • Congress can write new laws to overcome unpopular decisions

      • Amendments can overturn SC decision

      • Congress can change jurisdiction and number of justices if too far from public opinion

      • Reputation of individuals and the court


    Supreme court eras

    Supreme Court Eras

    • 1789 through Civil War – Balance of Power between the Federal and State Governments

    • Civil War through New Deal – Role of the Government in the Economy

    • New Deal through Present – Civil Rights and Personal Freedoms, Social and Political Equality


    Checks on the power of the supreme court

    Checks on the power of the Supreme Court

    • Presidential Oversight

      • Makes appointments to the court

      • Responsible for implementing policy – how strongly/quickly it will enforce

    • Congressional Oversight

      • Approves appointments

      • Congressional oversight of policies

      • Pass new laws if one is ruled unconstitutional

      • Amendments to override Supreme Court Decisions

      • Impeach Justices

      • Change the number of judges, number of courts, and jurisdiction of courts


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