apg unit 3 notes
TRANSCRIPT
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Caroline Margiotta
8: The Presidency 4/1/2012 1:13:00 PM
I. Roots of the Office of President of the United States
Early Exec. Pwrs:o Colonial-era royal governor had pwrs of appointment, military command,
expenditure, lawmaking and pardon
o Art. Of Confed.: No exec. Branch; Continental Congress Presidents held noactual pwr.; eventually agreed on need for executive pwr. t/b vested in 1
person
Presidential Qualifications & Terms of Officeo Constitution: Natural-born citizen, >35 years old, resident of US for >14
years (rxn. to many candidates being fmr. Diplomats)
o Most have prior elective experience; no constitutional bars to minoritygroups serving as president
o 22ND Amendment (1951): Presidents can serve 2 terms if they wereelected to the first or 10 years if they came to office via the death or
impeachment of a predecessor.
o VPs only intended function was to serve as an immed. Official stand-in forpresident i/c/o death or emergency; eventually became Senate presiding
officer (b/c Framers feared that a PO from the Senate-> Senate short an
officer)
o Impeachment: Power delegated to HOR in Constitution to chargepresident, VP, or other civil officers with Treason, Bribery, or other high
Crimes and Misdemeanors; first step in removing govt officials from
office
Only Andrew Johnson and Bill Clinton have been impeached byHOR; no one removed by Senate
1974: Nixon resigned over Watergate Scandalo Executive Privilege: Implied presidential pwr; allows pres. to refuse to
disclose info. Re: confidential convos or natl security to Congress or the
judiciary (Clinton & Bush asserted)
US v. Nixon (1974): Ruling on presidential pwr; found that noabsolute constitutional exec. privilege allows pres. to ref. to comply
w/ court order to produce info. needed in criminal trial.
Rules of Successiono Presidential Line of Succession (since 1947):
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VP-> Speaker of the House-> President Pro Tempore of theSenate-> Secy of State-> Secy of Treasury-> Secy. Of Defense->
Atty. General-> Secy of the Interior-> Secy. Of Agriculture, etc.
Never used b/c VP always present to take over officeo 25th Amendment (1967): Est. procedures for filling vacancies in
presidential and vice presidential office; dealing w/ presidential disability
If a VP vacancy occurs, P can apt. new VP (subj. to approval (bysimple majority) of both houses of Congress
VP and maj./ Cabinet can deem pres. unable to fulfill duties; VPmay become acting pres. if P is incapacitated; P can voluntarily
relinquish powers
II. Constitutional Powers of the President
Appointment Powero Helps president enforce laws passed/ Congresso Ambassadors, public Ministers & Consuls, SC judges, etc.o Can make 3k appts to his admin;Can remove many appointees @ willo Appts.> 75k military personnelo Pres. can set policy agenda for nation, esp. via court appts.o Look for loyalty, competence, and integrityo Cabinet: formal body of pres. advisors who head 15 executive depts.; P
can add others to this body (97% confirmed until Clinton)
o If appts. Rejected, P left w/o first choices, has more strained rel. w/Senate & public
Convening Congresso Reqd to give State of the Union speecheso Can convene Congress (S &/or H) on extraordinary occasions
Making Treatieso Can make treaties w/ foreign natns provided that all appr. By >2/3 of
Senate
o Can receive ambassadors (recog. existence/ other nations)o Senate ratifies ~70% of treaties; only 16 treaties rejected (incl. Wilsons
Treaty of Versailles, 1919)
Might require substantial amendment of a treaty prior to itsconsent (e.g. Carters Panama Canal Treaty, 1977, which turned
canal over to Panama)
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Pres. may unsign treaties (e.g. Bushs withdrawal of support forthe Intl Criminal Court)
I/c/o trade agreements, P m/b mindful of Congressional wishes;Congressional fast track authority allows pres. to negot. trade
agreements while Cong. c/n alter accords
Fast-track trade agreements c/n/b amended, must be votedon w/i 90 days
o Executive Agreement: Formal govt agreement entered into by president;d/n require the advice and consent of the U.S. Senate; not binding on
subsequent admins., but used since 1900 more frequently than treaties
(e.g. NAFTA)
Vetoeso Veto Power: Formal, constitutional authority of the president to reject bills
passed by both Houses of Congress; prevents them from becoming law
w/o further congr. action
o Veto now a qualified negative: Pres. can veto any Congr. act, but Cong.can override exec. Veto by 2/3 vote in each house (rare to see Cong.
muster enough votes-> 2,500 vetoes, but only 100 overridden)
o Line-item veto: Power to delete part of a bill passed by legis. involvingtaxing or spending; ruled Unconstitutional by USSC in Clinton v. City of
New York(1998)
Presiding over the Military as Commander in Chiefo Congress can decl. war via Constitution, but pres. since Lincoln have used
Commander in Chief clause + chief exec. duty to take care that Laws be
faithfully executed to wage war
o Vietnam War conducted w/o Congr. decl./ war; Cong. passed Gulf ofTonkin Resolution (1964), which LBJ supported
o War Powers Act (1973): Pres. ltd. in deployment of troops overseas to 60day period in peacetime (extended for extra 30 days for withdrawal)
unless Cong. explicitly approves longer period
Nixon vetoed, Congress overrode 2001: Bush complied w/ act when sought joint resolution auth. The
use of force against terrorists-> more open-ended auth. to wage
war tan predecessors
Pardoning Power
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o Pardon: exec. grant providing restoration of all rights & privileges ofcitizenship to a specific individual charged or convicted of a crime
o Gerald Ford pardoned Nixon for any offenses against the US which he m/hcommitted in office
o Washington, Adams, Madison, Lincoln, AJohnson, TRoosevelt, Truman, &Carter have all used pardons to grant amnesty for illegal acts
III. Development & Expansion of Presidential Power
Establishing Presidential Authority: The First Presidentso Washingtons precedents:
Est. primacy of natl govt 1794: Put down Whiskey Rebellion using militia of 4 states
(est. idea of federal supremacy; exec. auth. to collect taxes
levied by Congress)
Regular mtgs. w/ advisers-> Cabinet sys. Asserted importance of P in conducting foreign affairs
Sent envoys to negot. Jay Treaty w/ GB; asserted auth. tonegot. Treaties & submit them to Senate for approval;
Senates fn. Ltd. to appr./ treaties, not negot. w/ foreign
pwrs.
Ps Inherent Pwrs. (possessed simply b/c/o sovereignty) basis forproclaiming policy of strict neutrality drg. war b/w Fr. & Br.; P.
pwrs. To conduct dipl. Relations c/b inferred from Constitution
o Adams poor leadership skills-> div. b/w Feds. & Anti-Feds., prob.Quickened devel./ pol. parties
o Jefferson: expanded Ps legislative role, esp. drg. Louisiana Purchase(1803)
Incremental Expansion of Presidential Powers: 1809-1933o Post-Jefferson, weak presidents & strong Congress-> Congress became
most powerful branch of govt
o Andrew Jackson: first strong natl ldr who rep. > landed elite Jacksonian democracy-> western frontier, egalitarian spirit; loved
by masses
Used image & personal power to veto 12 bills, reassert supremacyof natl govt by facing down SCs nullification of federal tariff law
o Abraham Lincoln: Civil War-> Unprecedented assumption of presidentialpowers b/c/o inherent pwrs.; suspended habeas corpus (would allow
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prisoners to petition t/b released, but needed to jail those suspected of
disloyal practices); expanded allowed size of U.S. Army, blockaded
southern ports (initiating war w/o consent of Congress); closed U.S. mail
to treasonable correspondence
Growth of the Modern Presidency:o 20th-21st C: Presidential decision-making more important; traced/ four-
term (12 years b/c/o death) presidency of FDR
1933: FDR took office amidst Great Depression; asked Congressfor broader exec. powers to address emergency
New Deal: FDRs Relief, Recovery, Reform program to bring USout of GD
New bureaucracy to implement pet programs; personalizedpresidency via fireside chats
IV. Presidential Establishment
Vice President:o Chosen to balance (politically/geographically) presidential ticket; little
thought to poss. that he m/b president
Sometimes of a diff. party than the president (e.g. FDR (D-NY) andJohn Nance Garner (R-TX) in 1932)
o Pwr. of VP dependent upon how much pwr P is willing to give him Carter 1st to give his VP, Walter Mondale, pwrs. (incl. an office) Dick Cheney had unprecedented access to Pres. Bushs ear
Cabineto No basis in the Constitution, so informalo Membership based on tradition & presidential discretiono Incl. heads of major executive depts.+ VPs _ other agency heads/ officialso Helps P execute laws & assists him in making decisionso Interest group pressures-> creation of new executive depts.
Farmers-> Dept. of Agriculture; business people-> Commerce;workers-> Labor; teachers-> Education
o Reliance on Cabinet secretaries has decreased First Lady
o Informal adviserso Abigail Adams= early feminist (Remember the Ladies in laws)o Edith Bolling Galt Wilson= most powerful first lady; became Wilsons
surrogate after his paralysis and oversaw whom & what he saw
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o Eleanor Roosevelt= syndicated columnist, lecturer, Democratic Partyactivist, mother, and US delegate to the UN
o Laura Bush-> improve literacy, womens legal status in Afghanistan &Iraq; fundraiser
Executive Office of the Presidento Created by FDR in 1939 to help president oversee exec. branch
bureaucracy
o Comprised of several advisers & offices in Exec. Office Bldg. next to WhiteHouse
o Natl Security Council (1947): advises president on US military affairs &FP; includes P, VP, Secys. Of St. & Dfns, & sometimes chairs of Joint
Chiefs of Staff & CIA directors
o Council of Economic Advisers, Office of Management & Budget, Office ofthe VP, Office of the US Trade Representative
o Depending on type of EOP offices they include, P can give clear indicationsof their policy prefs.
White House Staffo Personal assistants to P: senior aides & deputies, assistants w/
professional duties, clerical & admin. aides: ~500
o Not subj. to Senate confirmation, d/n have div. loyalties-> pwr. derivedfrom personal rel. w/ President, no indep. Legal auth.
o Chief of staff: enables smooth running of staff & exec. branch; prot. Pfrom mistakes, help implement policies advantageous to P
V. Presidential Leadership & the Importance of Public Opinion
Presidential Leadership
J.D. Barbers
Presidential
Personalities
Active Passive
Positive F. Roosevelt, Truman,
Kennedy, Ford
Taft, Harding,
Reagan
Negative Carter, G. Bush, Wilson,
Hoover, LBJ, Nixon
Coolidge,
Eisenhower
o Active-positive Ps approach presidency w/ zest for life, drive to lead &succeed
o Passive-negative Ps fail to take full adv. Of resources avail. To EO
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o Ps who exercise leadership inc. pub. Attn.. to particular issues Mentions of policies-> more citizens mention those policies as most
important problems
Neustadt: power to persuade= Ps ability to infl. Members ofCong. & the public
Diff. b/w great & mediocre Ps lies in ability to grasp importance ofleadership style; needed t/b active
Going Public: Mobilizing Public Opiniono Ps have long used bully pulpit in an effort to reach out to the public to
gain support for their programs
o Direct appeals to the electorate= going public Goes over heads of MCs to gain popular support so that people can
pressure elected officials
o Clinton used Larry King Live, Nightline, and black-tie dinners; GWB gavespeeches on the war in Iraq @ military academies
Publics Perception of Presidential Performanceo Approval ratings measure ability to enact pub. Policy simply b/c/o name &
office
High approval rtgs-> public appearances can help a candidate fromthe presidents party to win an important seat
Low approval ratings-> prevent favored policies from beingenacted on Capitol Hill (e.g. 2008, when House Republicans
d/n/w/t/b affil. w/ GWBs emergency financial bailout plan)
o Pres. popularity generally cyclical; highest lvl. Of public approval @beginning of their terms (try to take adv./ honeymoon period to get
prog. Passed by Cong. ASAP); ea. action-> approval/disapproval by some
o Since LBJ, only 4 presidents have left office w/ approval rtgs. > 50%o G. Bush, Clinton, GW Bush exper. Surge in approval rtgs. Drg. course of
presidencies-> allows presidents to ach. Some policy goals they believe
are good for the nation (even if unpopular)
E.g. on heels of Persian Gulf War & 9/11 attackso GWB: one of the longest rallies in history
Harmed by pol. scandals, escalating violence in Iraq, rising gasprices
Approval rtgs. from 50% (2005) to 35% (2006) to 26%(2008)
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Correlates w/ Congressional Republicansindependence
VI. Towards Reform: The President as Policy Maker
Presidents Role in Proposing & Facilitating Legislationo FDR-> 104th Congress (R): Public looked to president to formulate
legislative plans to propose to Congress
o 1994: Electorate wanted Congress to reassert self in legisl. process Contract w/ America: R call for Cong. to make new laws; R
congresses failed to pass elements of Contract; Clintons presence
in budgetary process-> dec. potential role of Congress
o Presidents continue to play major legislative agenda-setting role Most imp. pwr.= ability to construct coalitions w/I Congress that
will work towards psg./ his legislation
FDR & LBJ helped by Democratic majorities, but worked wellw/ Congress
Hard to get Congr. to pass programs, esp. i/c/o divided govt Imp. To propose key plans early in admin., when approval ratings
are highest
Can bolster support by calling on Ps own pol. party As informal party leader, should be able to exploit position in
Congress; works best when P carries members of his own party
into office on his coattails
Budgetary Process & Legislative Implementationo P sets natl policy & priorities through budget proposals & continued
insistence on Congr. passage
o Budget proposal outlines progs. P wants, indic. importance of each byamt. of funding requested for each
o 1939: Bureau of the Budget (created 1921 to help P tell C how muchmoney he needed to run the exec. branch) made part of the EOP.
o 1970: Office of Management and Budget (fmrly. Bureau of the Budget):Prepares presidents annual budget proposal, reviews budget & programs
of exec. depts., supplies econ. Forecasts, conducts detailed analyses of
proposed bills and agency rules.
Policy Making Through Executive Ordero Executive Order: Rule/ regulation that has the effect of law. All Eos must
be published in the Federal Register
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FDR & Truman used to seize mills, mines, etc. for producingsupplies for WWII & Korean War
Youngstown Sheet and Tube v. Sawyer(1952): USSCstated that Truman overstepped boundaries of his office by
seizing mills
Truman: EO to end segregation in the military EO 11246: Instituted affirmative action (LBJ, 1966) Ronald Reagans EO to stop federal funding of fetal tissue research;
groups providing abortion counseling
GWB invalidated 1978 Presidential Records Act (had est. that allpresidents records belonged to the American people)
o Signing Statements: Comments on the bill a president signs; sometimesincl. controversial claims that some of the legislation= unconstitutional, so
he intends to disregard it or implement it differently.
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Caroline Margiotta
9: The Executive Branch & the Federal Bureaucracy 4/1/2012 1:13:00 PM
I. Roots of the Federal Bureaucracy
Intro:o Bureaucracy: Set of complex hierarchial depts., agencies, commissions, &
staffs that exist to help CEO or President to carry out his/her duties; m/b
private org. or govt units
The Civil War and the Growth of Governmento Thousands of addtl employees added to existing and new govt depts.o Poor harvests & distribution problems-> Dept. of Agriculture (1862; given
full departmental status by 1889)
o 1866: Pension office-> benefits to Union veteranso 1870: Dept. of Justice (headed by Atty. General)
Spoils System-> Merit Systemo Spoils system: Firing of public-office holders of a defeated pol. party in
order to replace them w/ loyalists of the newly elected party
Big under Andrew Jackson, who filled many post office positions w/his supporters
Form of patronage (jobs, grants, or other special favors given asrewards to friends & political allies for their support)
o James A. Garfield elected in 1880, reformers called for reform topatronage sys.
o Rutherford B. Hayes wanted merit sys. b/o test scores & ability Not passed by Congress Job seekers wanted secure positions before a merit sys. Imposed,
so hounded Garfield for jobs (tried to reform)
o Pendleton Act: Reform measure that created the Civil Service Commissionto administer a partial merit sys.
Classified federal svc. By grades (appts. Made b/o results ofcompetitive exam)
Illegal for federal pol. appointees t/b reqd to contribute to aparticular pol. party
o 10% of positions in federal civil svc. Sys (for selection of bureaucrats)were covered by law
o Merit sys: fed. Civ. Svc. jobs classified into grades/ levels; appts. madeb/o performance on competitive exams
Regulating the Economy
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o Interstate Commerce Commission (1887): Created in wake of big businessgrowth, price fixing, & unfair post-Civil War business practices, a/w/a
public outcries over high rates charged by railroad companies for hauling
freight
First Independent Regulatory Commission (Congressionally-createdagency concerned w/ specific aspect of the economy)
Indep. Of direct presidential auth. Commission members apptd. by president; hold jobs for
fixed terms, but not removable unless they fail to uphold
their oaths of office
Creation-> shift in focus from service to regulation ofindiv. & property rights
o TRoosevelt (1901, progressive Republican) inc. regulation of economy 1903: Inc. size of the bureaucracy when he asked Cong. to est.
Dept. of Commerce & Labor
New govt regulations to help workers & to ctrl. Pwr. ofmonopolistic corporations
1913: Woodrow Wilson created sep. Depts. For Commerce& Labor
1914: Federal Trade Commission (protect small businesses& public from unfair competition, esp. from big business)
1913: 16th Amendment affected sz. & growth potential ofgovt
Cong. could implement federal income tax New funds to support new federal agencies, etc.
20th C. Governmental Growtho 1920s-1929: Common bank failures-> stock market crash & Great
Depression
FDR created new govt agencies to regulate business practices &economy
Popularly supported b/c people considered it the fed. Govts job torevive the economy
o WWII: Male workers became soldiers; women entered the workforce Inc. tax rates (permanently) New monies & veterans demands for services-> bigger govt
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Government Issue (G.I.) Bill-> college loans for returningvets, lower mortgage rates so they could buy homes
Veterans Housing Authority-> homes purch. w/ loanshad to meet certain specs.
o Civil Rights Mvt., LBJs Great Society programs-> expanded bureaucracy &presidential pwr.
Equal Employment Opportunity Commission (1965) created by Civ.Rights Act of 64
1965: Depts. Of Housing & Urban Development (HUD) 1966: Dept. of Transportation
II. The Modern Bureaucracy
Natl Govt Private Business
-For public good, non profit
-Seek re-election
-Money from taxpayers
-Diffic. To determine to whom
bureaucracy is responsible
-For-profit
-Money from customers
Who Are Bureaucrats?o Career govt employees who work in Cabinet-lvl. Exec. branch &
independent agencies that comprise > 2,000 bureaus, divisions, branches,
offices, services, etc.
o >2.7 m. federal workers, ~ 1/3 of which are part of the Postal Serviceo Most paid according to General Schedule; advance w/i 15 GS grades to
move to higher levels & salaries
o Most selected b/o merit standards (incl. civil svc. Exams); lower levelsfilled by competitive exams, mid-levels require resumes
o 10% comprised of persons not covered by c.s. sys: Appointive policy-making positions (incl. presidential appointees,
who appoint high-lvl policy-making assistants; @ top of
bureaucratic hierarchy)
Independent regulatory commissioners (Appointees indep./ directpres. influence
Low-level, nonpolicy patronage positions (secretarial assistants topolicy makers)
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o Positions difficult to fill b/c pay less than comparable positions in theprivate sector (e.g. DHS, TSA)
Military enlists private contractors @ high rates to fill bureaucraticpos. in Iraq & other dangerous places
Formal Organizationo Cabinet Depts.
Departments: Major admin. unit w/ responsibility for brad area ofgovt operations; status indic. Permanent natl interest in a govt
fn. (e.g. defense, commerce, agriculture)
Acct. for ~60% of workforce; VP, dept. heads, heads of EPA, OMB,NDCP, US Trade Rep, & Chief of Staff= cabinet
Each dept. headed by Secretaries, e/f DOJ (headed/ Atty. General) Responsible dir. To president, but often report to those
affected/ their dept.
Tied to Congress b/c/o appropriations process, discretion inimplementing policy
Secretaries assisted by 1+ deputies/ undersecretaries,assistant secys (take over major programs)
Helped by assistants for planning, budgeting, etc. Depts. Subdivided into bureaus, divisions, sections, etc. along
functional lines (geography, work process, clientele, etc.)
o Govt Corporations Businesses est./ Congress to perform fns. That c/b provided by
private businesses
Incl. Amtrak, Federal Deposit Insurance Corp., Tennessee ValleyAuthority (TVA)
I/c/o corps w/ low financial incentives to providesatisfactory services, Congress sometimes acts, and other
times salvages public assets
o Independent Executive Agencies Govt units that closely resemble Cabinet depts. But have narrower
areas of responsibility; not part of any Cabinet dept (e.g. CIA)
Sep. from exec. depts. for practical/ symbolic reasons E.g. NASA not placed w/i Dept. of Defense b/c Space
program not dedic. Solely to military purp.
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EPA not plcd. w/i Dept. of the Interior b/c spec. aimed @controlling pollution (less indebted)
o Independent Regulatory Commissions Agencies created by Congress to exist o/o major depts. to regulate
a specific activity/ interest
National Labor Relations Board (NLRB), Federal Reserve Board,Federal Communications Commission (FCC), Securities & Exchange
Commission (SEC)
Older boards/commissions (SEC & FRB) oversee a certain industry;most created t/b free from partisan pressure
Each headed by board (5-7 members, to avoid ties)selected/ president & confirmed by Senate for fixed,
staggered terms (intentionally bipartisan
C/n easily be removed/ president 1935: USSC ruling that Congress intended indep.
commissions to be indep. expert panels as far removed as
possible from immed. Pol. pressures
Newer boards: concerned w/ rel. of private sector to public health& safety (e.g. OSHA); lack autonomy, headed by 1 admin who c/b
removed by the president, so more susceptible to presidents
political wishes
Govt Workers & Political Involvemento Hatch Act (1939): Prohibited civil servants from taking activist roles in
partisan campaigns; prohibited fed. Employees from making campaign
contributions, working for a particular party, or campaigning for a
particular candidate (often argued that this was too extreme)
o Federal Employees Political Activities Act (1993): Liberalization of theHatch Act; Federal employees may now run for office in nonpartisan
elections, may contribute money to campaigns in partisan elections
III. How the Bureaucracy Works
Congressional creation of a dept., agency, or commission-> delegation of pwrs(AI, S8); laws creating depts., etc. desc. Purpose, give auth. to make numerous
policy decisions
o Implementation: process b/w law/ policy is put into operation by thebureaucracy (how agencies execute congressional wishes)
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o Iron Triangles: Stable rel. & patterns of interaction b/w agencies, interestgroups, and congressional (sub)committees; no longer dominate most
policy processes, but some exist (e.g. b/w DVA, House Committee on Vet.
Aff., American Legion & VFWs)
o Issue Networks: Loose & informal relationships among many actors whowork in broad policy areas
Include agency officials MCs, & interest group lobbyists, lawyers,consultants, academics, PR specialists, & sometimes the courts
Very dynamic as members w/ tech. expertise/ newly interestedparties become involved
o Interagency Councils: Working groups created to facilitate coordination ofpolicy making & implementation across many govt agencies; intra-
bureaucracy alliance which results from increasingly complex policy
domains
E.g. US Interagency Council on the Homeless (1987) coordinatesactivities of govt agencies & programs to help the homeless
Policy Coordinating Committees (for complex policy problems);increasingly favored after 9/11 (e.g. PCC on Terrorist Financing)
Making Policyo Administrative Discretion: Bureaucrats ability to make choices concerning
the best way to implement congressional intentions
Rule Making: Quasi-legislative admin. process w/ char. Oflegislative act.
Regulations: Rules that govern the operation of a particulargovt program that have the force of law
Rule-makers often act as law makers & law enforcerswhen they make rules or draft regulations
1946 Administrative Procedures Act: Est. rule-makingprocedures:
Public notice of time, place, & nature of proceduresm/b provided in Federal Register
Interested Parties m/b given the opportunity tosubmit written arguments & facts relevant to the rule
Statutory purpose & basis of the rule m/b stated Rules take effect after 30 days
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Sometimes agency must conduct formal hearing beforeissuing rules (weeks-> years)
Administrative Adjudication Quasi-judicial process i/w bureaucratic agency settles
disputes b/w two parties similar to how courts resolve
disputes
Rarely find that persons/businesses d/n comply w/ federallaws agencies must enforce, or that they violate agency
rules or regulations
Force compliance via admin. adjudication (generally lessformal than a trial)
Involves several agencies, boards, and admin. law judges(independent, c/n/b removed e/f misconduct)
IV. Toward Reform: Making Agencies Accountable
Executive Controlo Most presidents tried to exercise some ctrl./ bureaucracy
JFK: Difficult to instruct Dept. of Stateo Try to appoint best possible people to carry out wishes & policy
preferences, so they apt. indiv. who share their views on many policies
o Presidents & Cabinet secretaries fill most top policy-making positionso Can re-org. bureaucracy w/ Congressional approval
Thomas Jefferson: cut waste, bring about wise & frugalgovernment
Calvin Coolidge: spending cuts, etc. & Correspondence Club toreduce bureaucratic letter-writing
o Executive Orders: Rules/regulations issued by the president which havethe effect of laws; all published in the Federal Register; diffic. to ensure
they are carried out
E.g. NOW convinced LBJ to amend an earlier EO prohibitingdiscrimination on the base of race, religion, or natl origin to also
prohibit discrimination b/o gender (1967)
Office of Federal Contract Compliance failed to draftimplementation guidelines until many years later
Congressional Controlo Can create or abolish depts. and agencies, transfer agency functions,
expand or contract bureaucratic discretion.
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o Senate can confirm/reject pres. appts., so Congress can checkbureaucracy
o Investigatory powers (Sub)Committees can hold hearings on particular problems, then
direct relevant agencies to study problems or find ways to remedy
it
Reps. Appear before commitees regularly to inform members abt.Agency activities & investigations
E.g. Hearings ordering FEMA chief Michael Brown & DHSSecy. Michael Chertoff to explain bad decisions contributing
to Hurricane Katrina disaster (for accountability and
learning from mistakes)
o 2 types of Congressional Oversight Police Patrol: Proactive; Congress sets own agenda for programs/
agencies to review
Fire Alarm Oversight: Reactive; Congress responds to complaintfiled by constituents, etc. (most common)
o Program evaluations next most commonly usedo Power of the Purse: Funds/ doesnt fund agencies activities
House Appropriations Committee holds hearings to allow agencyheads to justify budget requests
Allocates sums smaller than those auth./ legisl. committees(acts as a budget cutter)
1921: Government Accountability Office (then General AccountingOffice) in Congress, Office of the Budget/OMB in Exec. branch
GAO established Congressional Research Service andCongressional Budget Office to financially oversee agencies
work
o Congressional Review (104th Congress): Agency regulations c/b nullifiedby joint resolutions of legislative disapproval
Judicial Controlo Less apparent oversight fn., but can issue injunctions/ orders to exec.
agency before rule is formally announced
o Agencies must give all affected individuals due process C/n stop Social Security recipients checks unless provided w/
notice & opp. For a hearing
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o (Threat of) Litigation can influence bureaucrats Injured parties can file suit against agencies for failing to enforce
laws; can challenge agency interp. Of any law
o Courts often defer to bureaucratic expertise Specialized Courts (e.g. Court of Intl Trade) defer less to agency
decisions
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10: The Judiciary 4/1/2012 1:13:00 PM
I. Roots of the Federal Judiciary
Federalist N 78: Alexander Hamilton argued that the judiciary w/b least dangerousbranch of govt; Anti-Federalists objected to life tenure (given s/t judges w/n/b subject to
political whims) & ability to define supreme law of the land
Art. III, S2: Judicial powers, original and appellate jurisdictiono All federal crimes (e/f impeachment)tried by jury i/w crime was committed
Cong. can alter the Courts jurisdiction (ability to hear certain kinds of cases)o Can propose Constitutional amendments to reverse judicial decisionso Can impeach & remove federal judgeso President appoints all federal judges w/ advice & consent of Senate
Court can check presidency (presides ovr pres. impeachment) Judicial Review: Power of the courts to review acts of other branches of govt and the
states
o Not specified by the Constitutiono Resolved in Marbury v. Madison (1803)~ Natl govto Martin v. Hunters Lessee (1816)~ State law
Judiciary Act of 1789 and the Creation of the Federal Judicial Systemo Judiciary Act of 1789:
Est. three-tiered structure of federal court system
Early SCo Only decided Chisholm v. Georgia (1793)
FederalCourtSystem
Supreme Court
Judiciary Act of 1789: 5 AssociateJustices, 1 Chief Justice
1869-Now: 9 Justices
Circuit Courts
Until 1891: Trial courts forimportant cases; 1 disrict court
judge, 2 itinerant SC judges (met ascircuit court 2x/ yr
Now: Exclusively appellate
Federal District Courts (1 perstate)
If litigants are unhappy withverdict, they can appeal to 1 of 3
circuit courts
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Courts juris. under Art III, S2 includes right to hear suits brought by citizenagainst state i/w he d/n reside
Led to psg/ratif./ 11th Amendment (1798; ltd. Judicial pwr. by preventingfed. courts from trying any cases commenced or prosecuted against one
of the states by citizens of another state)
One assoc. just. left to become chief justice of South Carolina SC Issues w/ early court:
Freq. personnel changes, no clerical support, no system of reportingdecisions, few good lawyers willing to join b/c/o travel duties
Actions in the first decade D/n give GW advice on legality/ some actions-> SC retained
independence (politically and functionally)
Tried to advance nationalism, maintain natl govts supremacy ovr.states
Circuit court jurists-> suppressed Whiskey Rebellion (1794; rxn./natl excise tax/ whiskey)
Chall. Constitutionality of Alien & Sedition Acts (Criminaloffense to crit. govt officials or their actions)
The Marshall Court: Marbury v. Madison (1803) and Judicial Reviewo John Marshall (h. 1801-1835) est. court as co-equal branch of govt
Discont. Practice ofseriatim (series) opinions (prior, justices spoke indiv.opinions in order; after, spoke as a court)
Est. supremacy of SC over judiciaries of various states; of fed. Govt &congress over state govts (see McCulloch v. Marylandand the Elastic
Clause)
Claimed judicial review, est. court as final judge of constitutional questions(may void Cong. acts)
o Marbury v. Madison (1803): John Adams appointed Wm. Marbury (among other Federalists) a justice for
DC @ last minute; Secy. Of State failed to deliver commission, so M. asked
Jefferson; Madison refd Court found that cong. statute extending Courts
original jurisdiction was unconstitutional.
Although Marbury et. al. were entitled to commissions, the Court c/n issuethe writ Marbury requested
Parts of the Judiciary Act of 1789 that allowed court to issue writs wereunconstitutional
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In the long term, est. judicial reviewII. The American Legal System
Courtso Trial courts: court of original jurisdiction where cases begino Appellate courts (state): generally reviews only findings of law made by lower
courts; same level as courts of appeals (federal); hear civil & criminal law
Jurisdictiono Authority vested in a particular court to hear and decide the issues in any particular
case
o Juris. of the federal court ctrld./ US Constitution and by statuteo Original Jurisdiction: Jurisdiction of courts that hear a case first (gen. a trial);
determine the facts of a case
o Appellate Jurisdiction: Power vested in particular courts to review &/or revisethe decision of a lower court; d/n view factual record, but review legal procedures
to ensure proper application of the law.
Criminal and Civil Lawo Criminal law: Codes of behavior related to the protection of property and
individual safety
Deals w/ felonies, misdemeanors, or offenses Assumes society is the victim of the illegal act, so the govt prosecutes on
behalf of an injured party
o Civil law: Codes of behavior r/t business & contractual relationships b/w groups &individuals
Actions d/n constitute threat to society @ lg., so people must take action ontheir own (lawsuits)
Civil disputes often settled outside of courto In all cases, need plaintiff (w/ prosecutor), defendant (w/ defense lawyer), judge,
and jury
III. The Federal Court System (all constitutional courtscreated by the Constitution or by
Congress pursuant to its auth. in Art. III)
Legislative courts set up by Congress for special purposes (e.g. Court of MilitaryAppeals)
District Courts (created w/ Judiciary Act of 1789)o 94 federal district courts exist, none cuts across state lines (ea. State has >/= 1;
CA, TX, & NY ea. have 4)
o Cases fall into 1/3 categories:
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Involve federal govt as a party Present federal question b/o claim under the U.S. Constitution, treaty w/
another nation, or a federal statute (federal question jurisdiction; c/b civil or
criminal)
Involve civil suits i/w citizens are from diff. states, amt. of money @ issue>$75,000
o Ea. federal district has US atty (nom./ pres., confirmed/ Sen.) Chief law enforcement officer N of assistants d/o amt./ of litigation
Courts of Appealso C/b appealed to by losing party in case heard & decided in fed. Distr. Courto Try to corr. errors of law & procedure that have occ. in lower courts or admin.
agencies
Lawyers submit briefs (docs containing the legal written arguments incases filed w/ court by a party prior to a hearing or a trial)
Dec. of any court of appeals binding on only courts w/I geog. Confines; dec.of USSC binding everywhere, est. natl precedents (prior judicial decisions;
rules for settling subseq. Cases of a similar nature)
Stare decisis= reliance on precedents to formulate decisions in new cases Allows for continuity & predictability in our judicial sys., but judges
sometimes ignore or overrule precedents to reach diff. conclusions
o 11 numbered courts of appeals; 12th in DC (federal reg. commissions & agencies)o N of judges variable (d/o workload and complexity of cases; from 6-30)o Ea. court supervised by a chief judge (most senior below 65, serves max. 7 yrs.)
Judges div./ rotating 3 judge panels (active judges w/i Court of Appeals,visiting judges, & retired judges)
o Have no orig. jurisdiction, but Cong. granted them appellate juris. over casespertaining to :
Appeals from criminal and civil district cases (90% of workload) Appeals from admin. agencies When decisions made/ fed. Court of appeals, litigants n/l have auto. Right
to appeal
Losing party may petition to the US SC to hear the case, but SCrarely grants
Supreme Courto Reviews cases from the US courts of appeals and other courts of last resort
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o Final interp. Of the Constitutiono Decides cases w/ trem. Policy significanceo Ensures uniformity in interp. Of natl laws & the constitutiono Resolves interstate conflictso Maintains supremacy of natl law in the federal sys.o Since 1869: 8 assoc. justices + 1 chief justice (presidentially nominated)
Each justice empl. 4 clerks, but there are also ~ 400 staff members @ theUSSC
IV. How Federal Court Judges are Selected
Selection is oft. Very politicalo Pres. tries to select well-qualified individuals, but can also put phil. stamp on fed.
courts
o Senatorial Courtesy: process b/w presidents defer selection of district courtjudges to the choice of senators of their own party who rep. the state where a
vacancy occurs
E.g. Clinton: district court candidates came from recs. From DemocraticSenators/ House members (or other high-ranking Democrats); desp.
Clintons efforts to appease Rs w/ moderate justices, Senate prevented
many nominees from winning approval
Bush: Confrontations ovr. D threats and use of filibuster to block votes onBush nominees-> bipartisan Gang of Fourteen
Make sure well-qualified nominees c/b brought to a vote except ifnominees ideology was too extreme
Who are Federal Judges?o Gen. have held other pol. offices (e.g. state court judge/ prosecutor)o Most h/b involved in politics, h/h prior judicial experienceo White males dominate, but now more minorities are on the bench
Appointments to the US Supreme Courto Nominated by president, confirmed by Senate
Nomination Criteriao Competence
Expected t/h/h some judicial or govt exper. E.g. John Jay was a Federalist Papers author & a NY politician
o Ideology/Policy Preferences Preferably of the same ideology as the appointer (FDR, Nixon, & Reagan
apptd. Justices w/ their ideologies
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o Rewards Many appointees were personal friends of presidents (e.g. Lincoln, LBJ) Most select justices of their own party affil.
o Pursuit of Political Support E.g. Reagan aptd. Sandra Day OConnor to fill the first vacancy in the SC in
rtn. for female support
E.g. Clinton apptd. Ruth Bader Ginsbergo Religion
For years, there was a Cath. & a Jewish seat on Court Through 2009, most h/b Protestants Only 11 Cath.; only 7 Jewish More Catholics now than ever (Roberts, Scalia, Kennedy, Thomas, and Alito)
o Race, Ethnicity, and Gender Thurgood Marshall & Clarence Thomas only AA justices Sandra Day OConnor, Ruth Bader Ginsberg, Sonia Sotomayor, and Elena
Kagan only female justices
Supreme Court Nomination Processo Investigation
Names of nominees sent to the FBI and the ABA for a background check ABA rates ea. nominee as Well Qualified, Qualified, or Not Qualified
After formal nom. made & sent -> Senate, Senate Judiciary Committeeinvestigates
Asks each nominee to complete questionnaire on previous work,judicial opinions written, judicial philosophy, speeches, & interviews
o Lobbying by Interest Groups 1987: Nom. Of Judge Robert H. Bork-> liberal groups launched massive
campaign against nominee
Many interest groups involved in distr. and appell. court nominations; recog.That appts. Pave way for fut. nominees to the USSC
o Senate Committee Hearings & Senate Vote To 1929: all but 1 Senate Judiciary Committee hearing on SC nominee was
conducted in exec. (private) session
1916: Hearings on Louis Brandeis (first Jewish justice) conducted in public 1939: Felix Frankfurter= first nominee/ testify before the committee
Senators ask nominees probing questions, which many decline toanswer (b/c issues may come before the Court)
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Aft. Hearings, Senate Judiciary Comm. Makes recomm. To fullSenate
Rejections of Pres. SC nominees occur after SJC recommendsagainst nominees appt.
V. The Supreme Court Today
Deciding to Hear a Caseo Ovr. 9,600 cases filed @ USSC from 2007-2008, but only 75 were heardo Crtn./ Courts of Appeals-> reduction in SC filingso Cases req. interp./ constitutional law grew as pt. of SC workload-> Court took
greater role in policy-making
o Justices can opt not to hear a case, thereby influencing policy-making and politicso 2 types of jurisdiction:
Original jurisdiction i/c/w Ambassadors, other public Ministers & Consuls, &those i/w a State is party
Appellate jurisdiction when cases present important issues of law orsubstantial federal questions
Most arrive on writ of certoriari(request for Court to order uprecords from a lower court to review a case)
Writs ofCertioriariand the Rule of Fouro Writs of Certioriarimust meet these criteria:
Come from US appellate court, special 3-judge district court, or state courtof last resort
Involve federal question; present questions of federal constitutional law/involve federal statutes, actions, or treaties
Set our reasons Court should accept case for review & present legalargument supporting that position
o Clerk transmits writs to chief justices office (for clerical review), then to indiv.justices offices
All justices e/f John Paul Stevens participate in certpool Review fraction of petitions, share notes Cases which they deem noteworthy are placed on discuss lift prepd
by chief justices clerks & circ. to chambers of other justices (others
deadlisted)
Only 30% make it to discuss list Discussion of cases on discuss list
Chief justice speaks first, then the rest a/t seniority
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Rule of Four: >4 justices of the SC must vote to consider a casebefore it c/b heard; grant ofcertioriari
Role of Clerkso Sel. From candidates @ top of graduating classes of prestigious law schoolso Research mtrl., read & summarize cases, help justices to write opinionso Make first pass through petitions (infl. which cases c/g 2nd look)o Number of clerks has increased over time (now there are about 38 in the USSC)
Inc. n and length of the Courts opinions; inc. in annual n of cases decided How Does a Case Survive the Process?
o Cues Federal Govt asks for review Involves conflict among courts of appeals Presents civil rights/ liberties question Involves ideological or policy preferences of justices Has sig. sociopolitical interest (e.g. interest group amicus curiae briefs)
o The Federal Government Solicitor general: fourth-ranking member of the DOJ; handles all appeals
on behalf of the US govt to the USSC
Staff like small law firm w/i DOJ Appears o/b/o US govt as amicus curiae(friend of the court;
may file briefs or appear to argue interests orally before the court)
Court accepts 70-80% of cases i/w US govt is the petitioning party S.G. reps. Pres. policy interests & interests of the US in court
o Conflict Among the Courts of Appeals I/c/o interp. Of constitutional or federal law, justices want consistency
throughout fed. court sys.
Oft. when civ. rights/ liberties questions arise Ideology plays role esp. i/c/w judges of one ideology want to hear
cases to overrule the decisions of a lower court of a diff. ideology
Also take cases when circuit courts disagree over an issueo Interest Group Participation
Most cases involve govt or interest group (as sponsoring party or amicuscuriae)
Pos. of both parties echoed or expanded in a.c. briefs filed/ interestedparties
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Interest groups provide Court w/ info. Not contained in party briefs,help write briefs, assist in practice oral arguments
In moot court sessions, lawyers & law professors act out case Use a.c. brief to lobby the Court; joining ongoing cases through a.c.
briefs useful in advancing policy prefs.
Brown v. BOE (1954), Planned Parenthood of SE PA v. Casey(1992), Grutter v. Bollinger (2003)
Hearing and Deciding the Caseo Oral Arguments
Annual term starts on the first Monday in October, ends in late June Oral agmts. heard M->W
Ltd. To immediate parties in case, but S.G. often argues orally asamicus curiae
Attys. allotted 30 mins to present case, incl. time reqd to answer questionsfrom the bench
Fn.: Only opp. For public & press to observe workings of court Assures lawyers that justices h/h parties arguments Forces lawyers to focus on agmts. v/a imp./ justices Provides court w/ addtl info. (esp. re: Courts broader pol. role)
E.g. can ask how many people w/b affected by decisiono The Conference and the Vote
Justices meet in closed conference weekly when Court hears oral agmts;least senior judge comm. w/ those waiting outside to fill requests
Chief justice presides over conferences, makes initial presentation Indiv. justices disc. Case in order of seniority; many try to change
minds of others, but most enter conf. room w/ clear idea of how they
will vote on each case
Roberts Court less formal than Rehnquist Court i/t Fridayconferences last longer & include discussion
o Writing Opinions After Court reaches decision in conferences, justices write opinion (if chief
justice in majority, he selects justice to write it; if not, then the most senior
justice in majority writes it)
Forms of opinion:
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Most reached/ majority opinion written by 1 member to reflect theviews of >5 justices
Sets out legal reasoning justifying decision; becomesprecedent for deciding future cases
Under stare decisis, both likely t/b relied upon as precedentlater by lower courts confronted by similar cases
When Court writes final opinion, informal caucusing & negotiationoften take place (hldg. out for word changes, etc.
Can lead to div. in court majority; m/h/t decide cases byplurality opinions of 3-4 justices
Justices who agree w/ outcome of case but not legal rationale mayfile concurring opinions to express differing approach
E.g. Stephen Breyer filed one in Clinton v. Jones (1997)VI. Judicial Philosophy and Decision-Making
Judicial Philosophy, Original Intent, & Ideologyo (Conservative) Judicial restraint: philosophy of judicial decision making that
argues courts should allow the decisions of other branches of govt to stand, even if
they offend a judges own principles; federal courts composed of unelected judges,
so the judicial branch is the least democratic of all branches; courts should defer
policy-making to other branches as much as possible
Advocates of judicial restraint gen. agree that judges s/b strictconstructionists(emph. on Framers original intentions)
Determining the Constitutionality of a statute or policy requires the Court torely on explicit mngs. of clauses in the Constitution
o (Liberal) Judicial activism: Argues judges should use power broadly to furtherjustice, esp. re: equality & personal liberty
Roe v. Wade (1973) is ex./ j.a. run amok, as many believe the court s/hdeferred policy-making to the states or to the elected portions of the federal
govt
Advocates blv. Judges should use power broadly to further justice; courtsneed to correct injustices comm./ other branches of govt
E.g. Brown v. BOE(1954): racial segregation in schools violates equalprotection clause of the 14th Amendment
Conservative activists want to iss. Rulings that impose pol. blfs & policieson the country @ lg.
Models of Judicial Decision-Making
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o Behavioral Characteristics Originally: Soc. bckgd. differences (childhood exper., relig. values, educ.,
earlier pol./leg. Careers, pol. party loyalties) likely infl. How judge eval.
facts & legal iss. in a case
E.g. Justice Harry Blackmuns svc @ Mayo Clinic m/h led to medically-supported opinion in Roe v. Wade (1973)
o Attitudinal Model SC justices decide cases b/o personal prefs. towards iss. of public policy Factors incl. party identification, party of appt. pres., lib/cons leanings of a
justice
o Strategic Model Justices mix legal doctrine & own policy blfs. w/ concerns abt. how other
variables will affect/ be affected by their decision
Prospective thinkers; act to achieve & preserve policy and personal goalsover long term
E.g. certoriari: justices m/n vote to hear case if they susp. they will lose inthe final decision
Public Opiniono Justices read papers, watch TV, & know abt. public opiniono P.o. acts as check on court power & as energizing factor
E.g. activist periods in SC correspond to pds. of socioecon. crisiso Courts c/b target of pub. opinion
E.g. just before Webster v. Reproductive Health Services (1989), Courtsubj. to lobbying by pro-life & pro-choice groups & indiv.
o SC affects p.o., as init. rulings on controversial issues pos. infl. p.o. i/d/o Courtsopinion
o Court dependent upon pub. for prestige & compliance w/ decisions I/t/o war/emergencies, Cout decides cases i/f/o p.o. & pol. exigencies
Korematsu v. US (1944): SC upheld unconstitutional internment ofJapanese Americans
Ebb & flow of confidence in Court Highest after US v. Nixon (1974)
VII. Toward Reform: Power, Policy Making, and the Court
Backgroundo Marshall Court:
Marbury v. Madison (1803) and judicial review
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o Warren Court Civil rights cases, broadened policy-making role
o Roberts Court Reversed trend of Court agreeing w/ exec. decisions during times of war 2008: Found Bushs denial ofhabeas corpus rights to prisoners @
Guantanamo Bay was unconstitutional
Policy Makingo Over 100 federal laws decl. unconstitutional
E.g.Ashcroft v. Free Speech Coalition (2002): Child Online Protection Act(prevents minors from viewing porn on the web) was unconstitutional
Upheld the Protect Act (criminalizes pandering or soliciting of childpornography)
o SC can overrule itself Gen. abides by stare decisis, but has overruled self in >200 cases E.g. Brown v. BOE(1954) overruled Plessy v. Ferguson (1896), reversing
decision that racial segregation d/n violate Constitution
Reversal of decisions on criminal defendants, womens, and religiousestablishment rights
o Growing power: Courts now handle iss. that h/b considered political qs moreapprop. left to other branches of govt to decide
Pre-1962: Court d/n hear cases abt sz. & population of congressionaldistricts
1962: Justice Wm. Brennan Jr. concl. that, b/c a case involved a pol. issue,it d/n necess. involve a pol. question
Implementing Court Decisionso Judicial Implementation: How/ whether judicial decisions are translated into
actual public policies affecting more than the immed. parties to a lawsuit
Involves implementing & consumer populationsImplementing population: people responsible for carrying out a decision
(incl. lawyers, judges, public officials, police officers & police depts.,
hospital admins, govt agencies, corporations, teachers, school
admins, or school boards)
Consumer population: people affected by a decision For implementation t/b effective, members of implementing pop. must show
they understand orig. decision
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E.g. Reynolds v. Sims (1964): Every person s/h equally weightedvote in electing govt representatives
Implementing pop= state legislatures & loc. govts (determinevoting districts for federal, state, & local offices)
Implementing population must also follow Court policy Decisions most likely t/b implemented if implem. resp. concent. in hands of
few highly visible politicians (e.g. pres./governor)
Consumer population must also be aware of rights a decision grants/ deniesthem
E.g. teenagers seeking abortion need to know that most statesrequire parental permission; crim. defendants & lawyers need to
know implications for evidence presented @ trial
o Success of judicial implementation dependent on how well-crafted/ popular adecision is
E.g. Southern hostile rxn to Brown v. BOE& absence of preciseimplementation guidelines-> ruling went unenforced for many years
Highlights how SC needs support of fed/st. courts a/w/a other govtagencies to carry out judgments