Journal
5.1 Presidential Constitutional Authority
The Framers of the Constitution created a presidency that would take direction from Congress. The president is given several formal constitutional powers, most of which are checked by Congress. Presidential power is intended to be used to preserve and protect the Constitution through the president’s expressed and inherent powers. Expressed powers refers to powers listed explicitly in the U.S. Constitution. Inherent powers refers to powers that have been inferred from language in the U.S. Constitution. Together, expressed and inherent powers in the Constitution establish the office of the presidency and give its occupant the authority to preserve and protect the Constitution.
Article II of the Constitution establishes executive power and who may hold it: “The executive Power shall be vested in a President of the United States of America.” Article II also establishes the president’s formal authority, which includes being commander in chief of the U.S. armed forces and chief executive. The president also has the authority to negotiate treaties, nominate persons for high-level appointed office, veto acts of Congress, and grant reprieves and pardons. The language of the Constitution gives the president the power to make treaties as long as two thirds of the Senate concurs. This example of checks and balances is referred to as “advice and consent” in the U.S. Constitution. The Senate also has the power to confirm presidential nominations to high-level office. The veto power, which is the power of the president to reject bills passed by Congress, is found in Article I.
Authority as Commander in Chief
Article II, Section 2 of the Constitution states, “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” This means that the president must authorize any use of force by the military. It does not mean that he or she will personally lead troops into battle like a medieval European king. The requirement that presidents authorize the use of force establishes the sacred principle of civilian control of the armed forces. If the military establishment were equal in power to other institutions, it could easily overthrow the civilian government and thus upend one of the hallmarks of modern democratic governance, the peaceful transfer of power.
Civilian control, at least in the early days of the American republic, was ensured by the absence of large standing armies. In fact, the Constitution mentions an army and navy only because these were the only two branches of the military that existed when it was written. They were separate departments, and each was equal to the other. The secretary of war and the secretary of navy both sat in the president’s Cabinet.
Today’s Cabinet includes a single secretary of defense, but that position was not created until after World War II, with the passage of the 1947 National Defense Act, the law that created a unified Defense Department. Until that global conflict, the United States called state militia—what are known today as National Guard units—into national service. Much of the American fighting forces are still made up of National Guard units. They were called up in 2001 when the nation went into Afghanistan, and again in 2003 when it went into Iraq. Militia members of these units are normally under the command of their respective governors, but once called, they are under the command of the president.
Use of the state militias for national service was formally adopted with the Militia Act of 1792, which gave the president the authority, in the event or threat of an invasion, to call into service as many troops from state militia as would be needed to repel the invasion. The president would be able to call upon those militia companies that would be “most convenient to the place of danger or scene of action.” This meant that if the country were invaded off the shore of Maine, the president could call on militia companies in Maine, Vermont, New Hampshire, and Massachusetts. Because they would be close to the place of invasion, they could respond quickly. This would also give the states a role in defending the nation. Instead of having to build national bases in all the states to house a standing army, the army would be formed as needed. Less than a week after the Militia Act was passed, Congress passed a second Militia Act of 1792, which required each able-bodied white male citizen between the ages of 18 and 45 to enroll in the militia of his respective state.
The organization of the country’s military forces fundamentally changed in the 20th century. In 1903, Congress passed legislation to organize the various state militias into the current National Guard system, which was to be administered jointly by the National Guard Bureau and the U.S. Department of Defense. With passage of the 1916 National Defense Act, approximately one half of the U.S. Army’s available combat forces and approximately one third of its support organizations were National Guard units.
To call the militia into service during a time of crisis is to rely on civilian defense and to democratize the sense of sacrifice, a concept that still resonates today. As an example, when the United States went to war with Iraq in 1991, it amassed around 500,000 troops on Iraq’s border. Most of these troops were taken from state National Guard units. The United States certainly could have used its professional national army, but by calling on state units, the president gave all citizens a stake in the outcome.
Authority to Pardon
Article II, Section 2 also grants the president the authority to issue pardons. The president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in cases of Impeachment.” This would seem to suggest that the president can pardon anyone who has committed a federal crime.
Presidents may pardon convicted criminals who have already served part of their prison sentence. The president might issue a partial pardon, which often amounts to a commutation of a sentence, or pardon somebody who has long been a fugitive from justice. President Bill Clinton, for example, pardoned Marc Rich, a financier charged with evading $48 million in taxes and committing more than 50 counts of fraud. Rich had fled the country and was living in Switzerland at the time of his indictment.
As another example, in 1974 President Gerald Ford issued a full pardon to Richard Nixon for Nixon’s role in the Watergate cover-up, which meant that the former president could never be charged for crimes related to Watergate. The Nixon pardon was viewed as an attempt to heal a badly divided nation and move forward.
A president does not usually decide on pardons by him- or herself. Most of the time, he or she does not know the person being pardoned. Rather, somebody may apply for a pardon, in which case White House lawyers and the Justice Department study the matter and make a recommendation.
Veto Authority
As a check on the power of the legislative branch, the Constitution gives the president the authority to veto bills passed by Congress. One potential consequence of vetoes is that they might invite Congress to respond, if Congress has the votes, by overriding the veto. An override is often seen as a political defeat for a president. Overrides are rare; only 7% of all vetoes have been overridden since the beginning of the republic.
When the president vetoes a bill, the president must veto the entire bill and not parts of it; the U.S. Constitution does not provide for what is called a line-item veto. Congress gave President Bill Clinton the line-item veto with the Line Item Veto Act of 1996. The law was soon overturned by the Supreme Court in Clinton v. City of New York (1998). The Supreme Court struck down the law because the act violates the Presentment Clause (Article I, Section 7), which requires that bills passed by both houses of Congress be presented to the president for his or her signature. In essence, the Presentment Clause outlines the legislative process, which the Supreme Court argued was violated by giving the president the line-item veto.
Treaty Making and Effective War-Making Authority
A group of people standing in front of an audience wearing pink shirts that read “Peace with Iran.” They are holding signs that read “Congress try peace” and “Thank you John Kerry.” A police officer stands in the foreground.
Section 2 also says that the president “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” This means that the president can make treaties with other countries, but they are not binding on future governments unless they are ratified by the U.S. Senate. A president may negotiate a treaty to end a war, but the Senate may opt not to ratify it.
In the aftermath of World War I (1914–1918), President Woodrow Wilson sought to make the United States a signatory to the Versailles Treaty, which was the agreement that effectively ended the war. Part of the treaty was a call for the formation of a new League of Nations, an intergovernmental organization that would foster peace and international disarmament. Wilson wanted the United States to join this league, but some members of Congress believed that it could lead to U.S. involvement in conflicts that did not concern the country. When Wilson refused to compromise on any parts of the treaty, the Senate failed to ratify it, and Wilson never recovered politically. When the Senate refuses to ratify a treaty, it puts the president and the nation in a vulnerable position because it can be construed as a sign of weakness. Another country, sensing that weakness, may view it as an opportunity to wage war against the United States.
5.2 Presidential Elections
In addition to stipulating presidential powers, Article II also sets forth guidelines for presidential elections. For example, it states that the president “shall hold office during the term of four years.” Presidential elections take place in two distinct phases. The first phase is the nomination phase, which normally begins in January of presidential election years. Through a series of primaries and caucuses run on a state-by-state basis, delegates are chosen to attend party-nominating conventions. Following the conventions, the party nominees begin campaigning for the general election that is held on the first Tuesday following the first Monday in November.
Presidential Primaries
Although the nomination season begins in January, those seeking the presidency often begin their quest as early as 2 years before a national election. Candidates may declare their intentions to run a year in advance of the nomination season. During this time, they travel around the country and meet voters, state party chairs, and potential donors. Running for office entails a lot of retail politics, which involves candidates interacting with voters one on one, such as by taking part in local events.
The season begins in earnest with the Iowa caucuses. During a caucus, individuals gather for a few hours at a local meeting place and move to a section of the room designated for their favorite candidate’s supporters. During this process, they can be challenged by another candidate’s supporters. At the end of the exercise, the number of delegates apportioned to a candidate is based on the percentage of support each receives.
Iowa does not produce many delegates, but, as the first state in the nomination season, it provides momentum going into bigger contests as an indicator of party support. The next contest is the New Hampshire primary. Primaries are like elections in that polling places are open for at least 12 hours and registered voters come to the polling place and vote as individuals. There are two types of primaries. Closed primaries require that voters be registered with the political party of the primary in which they are voting. Closed primaries exclude registered independents. Open primaries allow registered voters, including registered independents, to choose the party’s primary in which they would like to vote regardless of their party registration. As with caucuses, delegates are apportioned based on the percentage of the vote that each candidate receives.
Candidates who win the Iowa caucuses or the New Hampshire primary are often advantaged in the early weeks of the nomination season because money follows winners. Candidates who win either of these contests are able to draw significant contributions and media attention, which in turn help them to spend money on advertising in bigger contests that produce more delegates. Those who do not fare well early in the season usually find it difficult to raise money and will likely drop out. Raising funds is critical because a successful candidate can spend more than $500 million. Voters living in states holding their primaries late in the season will likely choose between just two candidates unless all but one candidate has withdrawn from the race.
Each political party finishes the first part of the presidential election season during the summer of the election year with its nominating conventions. Each party nominates a president/vice-president ticket based on the number of delegates received by the presidential candidates. The presidential nominee is the person receiving the most delegates, and the presumed nominee selects the vice-presidential candidate. The official campaign for president then begins in September.
The Electoral College
The president is elected by the Electoral College and not by popular vote. The Electoral College is composed of electors from each state. The number of electors each state is allotted is dictated in Article II:
Each State shall appoint, in such manner as the Legislature may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator or Representative . . . shall be appointed an elector.
As president of the Senate, Vice President Joe Biden presided over the Electoral College vote count that reelected President Barack Obama in 2012.
There are a total of 538 electoral votes cast (including three for the District of Columbia), and a candidate needs a simple majority—270—to win. For most states, the candidate who wins the popular vote in that state wins that state’s electors. The only exceptions are the states of Maine and Nebraska, which allocate their electoral votes based on the popular vote in each state’s congressional district. The candidate who wins the popular vote in the state also earns two statewide votes.
Each candidate’s party signs up a slate of electors, who are then pledged to vote for that candidate. As an example, New York casts 29 electoral votes. In 2012, the two major candidates, Mitt Romney and Barack Obama, signed up slates of 29 electors each in the state (see Figure 5.1). Because Obama won the popular vote in New York, his slate voted in the Electoral College and Romney’s slate did not. The winner-take-all system often results in candidates earning a far higher percentage of electoral votes compared with the popular vote. For example, in 1992, Bill Clinton earned 43% of the popular vote and President George H. W. Bush earned 38%. (Independent candidate H. Ross Perot earned 19% of the vote but did not win the popular vote in any state. This means that Perot did not win any Electoral College votes.) Bill Clinton won the Electoral College vote with 69%; Clinton earned less than half of the popular vote and more than two thirds of the Electoral College vote.
In choosing where to invest resources, candidates and their campaign organizations usually choose states with close races (often called battleground states). They tend not to spend too much time or money in states where they are already likely to win or lose that state’s Electoral College vote. Because minority groups, whether racial, ethnic, or religious, tend to be concentrated in large, electoral vote-rich states, the electoral system provides representation for these groups that they otherwise might not enjoy. If they vote as a group, they can form a voting bloc that can make or break the state for a candidate, because the winner of the state’s popular vote (no matter how slim the margin) will win that state’s electoral vote in all but two states.
Still, there are those who maintain that the Electoral College system is not democratic. It rarely happens that a candidate who wins the popular vote loses the Electoral College, but it has happened four times, including 1824, 1876, 1888, and 2000. In the presidential election of 1876, Samuel Tilden, a Democrat from New York, won the popular vote over Republican Rutherford B. Hayes from Ohio. The Electoral College vote was in question because Florida, Louisiana, and South Carolina each sent two sets of electoral votes to Congress.
In 2000, Democratic Vice President Al Gore won the popular vote over Republican Texas Governor George W. Bush. Gore was leading in the Electoral College on Election Day, although the outcome in Florida was unknown. Without Florida’s 25 electoral votes, neither candidate would have the needed 270 electoral votes to win (266 for Gore, 246 for Bush). The number of total electoral votes cast was 537, and not 538, in 2000 because an elector from the District of Columbia abstained from voting in the Electoral College that year, although Florida’s electoral votes would put either candidate over the top. After several recounts and an order from the Florida Supreme Court to have a full recount, the U.S. Supreme Court ordered the recounting to stop. Bush was declared the winner, and Gore conceded defeat. Many Florida voters, especially minorities, believed that their votes were not counted because of confusion about ballot design, misplaced ballots, and other concerns. This election especially left a sour aftertaste because it appeared to many that the U.S. Supreme Court decided the outcome of a presidential election for the first time.
5.3 The Difference Between Domestic and Foreign Policy Presidents
The president of the United States is the most important political leader in the country. When the president speaks, the words carry weight and have influence. But the president’s influence is not even in all policy realms. Political scientist Aaron Wildavsky famously observed that from a political standpoint, the nation is usually led by two presidents embodied in one person. One is a domestic policy president, who tends to be weak, and the other is a foreign policy president, who tends to be strong.
The Domestic Policy President
In the realm of domestic policy, Congress tends to dominate because Americans tend to be more concerned about issues closer to home than they are about issues abroad. Because most members of Congress are elected and reelected on the basis of local issues and their ability to deliver goods back to their districts, Congress is reluctant to defer to the president on those domestic issues. On the contrary, if a presidential agenda interferes with the interests of a member’s constituency, that member may choose to vote against the president even if he or she is of the same political party.
A domestic policy president is also reined in by changes in the composition of Congress. The president’s party most often experiences losses in midterm congressional elections, which weakens the presidential mandate. A mandate is the perception that an elected official can do what he or she thinks the people want because of the popular support due to an electoral victory. Winning by a wide margin means a stronger mandate. Additionally, Congress members winning reelection may be anxious about the next election and may less often support the president’s agenda. In the midterm election of 2014, President Obama’s party lost 13 seats in the House of Representatives and nine seats in the U.S. Senate. In losing those nine seats in the Senate, the Democrats lost their majority party status. Midterm elections are best understood in the context of surge and decline theory. Surge and decline theory argues that midterm congressional elections, which are considered low stimulus because the general public pays less attention compared with high-stimulus presidential elections, attract core voters. Core voters tend to vote against the president’s party in midterm congressional elections. Consequently, the president’s party tends to lose seats in both houses of Congress during midterm elections. While the end result may be gridlock, it may also be viewed as an assertion of constitutional checks and balances.
Still, the president is increasingly expected to play more of a role in domestic policy. During an economic recession, when more people are out of work, the public tends to hold the president responsible and expect that the president will pursue policies that create jobs. During the Great Depression, President Franklin D. Roosevelt actively pursued policies to get the nation back to work. Following World War II, Congress passed the Employment Act of 1946, which specified a greater role for the president in economic policy. To that end, the law established the new office of the Council of Economic Advisors, a group that would monitor the economy and prepare reports that the president would submit to Congress each year. This meant that the president and his staff would be involved in planning the budget and, by extension, establishing the nation’s domestic policy priorities.
The president was to have more of a voice in domestic affairs, as his ability to appoint officials, even to independent regulatory agencies, meant that he would be able to appoint those who were sympathetic to his policy priorities. Article II, Section 3 of the Constitution says that the president “shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.” This means that the president is responsible for carrying out laws and implementing policies and programs that have been passed by Congress. As this responsibility falls on the president, the president’s role in domestic affairs only grows as Congress creates more programs, especially when power and authority (also discussed in the previous chapter) are delegated to the executive branch.
The Constitution gives the president limited formal roles in the legislative process (signing or vetoing legislation). However, presidential influence outside these formal roles is critical to the legislative process. For example, the Constitution requires that the president give Congress information on the state of the union “from time to time.” In modern times, the State of the Union has become a televised annual address to Congress. In having the State of the Union address televised, the president is using an informal power, the power of persuasion, by encouraging the public to pressure Congress to go along with the requests being outlined in the State of the Union.
The Foreign Policy President
In the realm of foreign affairs, presidents can often act with fewer congressional constraints compared with domestic affairs for several reasons. For instance, the president is the face of the nation when dealing with other countries. When it comes to negotiating treaties, there can be only one president, not 535. Even though treaties require a two-thirds vote in the Senate to be ratified, senators tend to defer to the president on treaties because of the need for the country to speak with one voice. Further, the public does not perceive foreign affairs to affect their daily lives, so most people tend not to care about foreign affairs as much as they do domestic issues. A Congress that defers to the president in foreign policy is not perceived as shirking its representative function in the way that a Congress that defers to the president in the domestic arena might be.
Most of what the Constitution says about the president’s authority pertains to foreign policy, whereas most of what it says about the authority of Congress pertains to domestic policy, although both branches enjoy significant powers in both policy areas. With the federal division of power and authority between the states and the national government, the Framers assumed that states would naturally be responsible for domestic policy and the national government would be responsible for foreign affairs. The Constitution assigns the president, and not Congress, to be commander in chief of the armed forces. The president also has the express authority to conduct foreign affairs by appointing and maintaining ambassadors and counselors abroad, and to negotiate treaties with other countries. Congress can hold hearings and request reports from the president, but it does not have much foreign policy authority other than to ratify already negotiated treaties, raise armies, and declare war.
Arguably, declaring war and raising armies go hand in hand with Congress’s primary power of the purse. A declaration of war would require raising an army to wage that war, which in turn would require a congressional appropriation, or spending bill. Still, much of the president’s more expansive powers in foreign affairs are derived from presidential prerogative.
5.4 Presidential Power
The Framers of the U.S. Constitution sought to clarify presidential power to avoid the potential abuse of power that might be found in a single executive. The Framers’ previous experience with a single national executive occurred when King George III abused his power over the colonists. Consequently, the Framers feared the potential for abuse from a single executive, which motivated them to list the specific powers of the president. Over time, though, presidents have argued that the U.S. Constitution suggests that the president has more powers in order to ensure fulfilling the president’s responsibilities.
Presidential Prerogative
President George W. Bush speaks in support of the 2001 USA PATRIOT Act, which was enacted as part of his War on Terror. The act allowed federal law enforcement to arrest those suspected of terrorism and hold them indefinitely without trial.
Presidential prerogative is an implied power that enables a president to expand his or her authority in ways not specifically stated in the Constitution. In essence, presidential prerogative is the notion that the president may act outside the power specified in the U.S. Constitution. Implied powers emerge from various elements found in Article II. For example, though it states that the president should “take care that the laws be faithfully executed,” it does not specify how the president should use his or her constitutional power to ensure that the laws are enforced. Similarly, the Constitution does not outline the powers and expectations associated with the president’s commander-in-chief role. Presidential prerogative may be interpreted in much the same way that one might interpret Congress’s Necessary and Proper Clause, which allows Congress to take actions ensuring that its enumerated powers are carried out.
Following the terrorist attacks of September 11, 2001, President George W. Bush declared a “war on terror.” (Congress has the sole power to declare war; in making this declaration, the president was seeking public and congressional support in responding to the terrorist attacks.) President Bush made it clear that the United States would go after terrorists around the world as well as those countries that harbored terrorists. Bush’s approach initially led to undeclared war in Afghanistan because terrorist training camps were located there, and then the undeclared war in Iraq due to the assumption that the Iraqi government was also supporting terrorism. Bush justified his actions as a legitimate exercise of presidential prerogative because of his obligation to preserve and protect the Constitution. Earlier terrorist attacks against the United States, including the 1993 attack on the World Trade Center, had been treated as criminal justice matters. The 2001 attack was of a different magnitude. Nearly 3,000 people died.
Political Power
Growth of the Presidency
Over the course of history, each of the president's constitutional powers has expanded beyond that which was originally envisioned. Foreign policy is a case in point. During most of the 19th century, the federal government's policymaking role was small, as was its bureaucracy. But with the Great Depression of the 1930s and World War II, the president's role increased dramatically.
Presidential prerogative has had the effect of expanding the scope of presidential power over time. Historian Arthur Schlesinger argued that through the use of presidential prerogative, particularly during periods of emergency, presidents have taken on imperial characteristics (Schlesinger, 2004). Even with presidential prerogative, though, the president must be able to persuade others and wield political power to be truly effective.
Power as Persuasion
More than 50 years ago, political scientist Richard Neustadt, who had served in President John F. Kennedy’s administration, defined presidential power as the power to persuade (Neustadt, 1991). Likewise, members of Congress are elected separately from the president, and the president has no control over their decisions. All the president can do is attempt to convince others that his or her ideas are preferable to the alternatives. A president who can get others to do what he or she wants through persuasion can be said to truly possess power.
The Importance of Public Support
A president’s ability to persuade will be enhanced if the president is popular with the public and his or her party holds the majority party in one or both houses of Congress. Popularity is important because the president can point to it as a reason why critics should not be so quick to dismiss what he or she has to say. Party support in Congress is important because the president can appeal to party loyalty to put his or her agenda forward. The president’s ability to persuade members of his or her own party in Congress is also enhanced by his or her ability to campaign on their behalf for reelection, especially if the president enjoys widespread public support.
But a president’s ability to persuade can easily be hindered by a drop in public support or by significant congressional midterm election losses in his or her own party. Presidential party losses in midterm congressional elections are often taken as a rejection of the president’s previous 2 years of governing. President Bill Clinton, who was elected in 1992 with Democratic majorities in both houses of Congress, lost both houses in the 1994 midterm election. His party lost 50 seats in the House of Representatives and eight seats in the Senate. Losses of this magnitude make it more difficult for a president to use the power of persuasion.
5.5 Executive Branch Organization
The Constitution provides for a president, vice president, and executive departments but is silent on presidential staff. Yet the president’s responsibilities have increased greatly since the office was created. The role of the vice president has become further defined. The Constitution does not identify any powers or responsibilities of the vice president, although modern presidents have extended greater vice-presidential involvement in their administrations, which also adds to already increasing executive staff needs. There has been significant growth in the executive as to both breadth (the type of office) and expertise and number of staff persons, in order to accommodate increasing presidential and vice-presidential responsibilities in the modern era.
Cabinet
The president’s Cabinet is composed of the heads of executive branch departments, most of whom carry the title of secretary. The term was coined by newspaper reporters during George Washington’s presidency to refer to his four department heads: the secretary of state, the secretary of the treasury, the secretary of the army, and the attorney general, who serves as the “secretary” of the Justice Department. There are now 15 Cabinet-level departments, which include Commerce, Energy, Transportation, Defense, Labor, Interior, Health and Human Services, Housing and Urban Development, Agriculture, Education, and, most recently, Homeland Security. The vice president and the ambassador to the United Nations have also been invited to join the president’s Cabinet.
The role of the Cabinet is largely undefined. A president may seek counsel from individual Cabinet members as well as call for regular meetings. Presidents will also use their Cabinets to demonstrate that they are not acting alone.
Executive Office of the President
The Executive Office of the President (EOP) consists of staff members reporting directly to the president and multiple support staff levels. It is generally headed by a White House chief of staff. The EOP originated in 1936, when President Franklin Roosevelt established a Committee on Administrative Management to evaluate administrative procedures in the executive branch. The concern in establishing the committee was that the business of government had become so vast that it was too much for one person to oversee.
The original EOP, formally created by executive order in 1939, was to consist of six administrative assistants to the president, along with three advisory bodies: the National Resources Planning Board, the Liaison Office for Personnel Management, and the Office of Government Reports. By the time Jimmy Carter took office in 1977, the EOP had around 1,700 full-time staff members. Today, the EOP consists of the president, plus 11 other councils and offices:
Council of Economic Advisors
Council on Environmental Quality
Executive Residence
National Security Council
Office of Administration
Office of Management and Budget
Office of National Drug Control Policy
Office of Science and Technology Policy
Office of the United States Trade Representative
Office of the Vice President
White House Office (includes the president’s immediate staff of advisors)
White House Staff
The White House staff is made up of analysts and advisors, such as communications advisors, political advisors, the press secretary, speech writers, legislative aides, and the White House physician. The White House staff is usually composed of people the president can trust. Unlike Cabinet members, a staff member does not need to be confirmed by the Senate.
The White House staff is organized within several office units, each of which employs additional staff members. The White House staff also includes persons on temporary assignment who are sent from other executive branch agencies and departments to work in the White House. The size of the White House staff has grown from a few dozen persons to several hundred more recently.
5.6 The Concept of a Wartime President
We have already noted that foreign policy–focused presidents tend to be stronger than domestic policy–focused presidents. During times of war and international conflict, it is common for presidents to assume greater authority and claim greater power and discretion. As outlined earlier, presidents exercising more discretion during wartime and international conflict often begins with presidents exercising their prerogative. Add to that a tendency on the part of Congress to defer to the president on foreign policy–related matters, and it is apparent that presidents often have free rein during times of international crisis.
As we will discuss in this section, even when the constitutionality of presidential actions has been challenged during wartime, the Supreme Court has tended to side with the president. Scholars suggest that this is because the Supreme Court recognizes the importance of the country being unified, especially during wartime. Once these conflicts end, the Supreme Court will often reassert the constitutional separation of powers.
In a 1977 interview with David Frost, former President Richard M. Nixon explained his view of the imperial presidency.
Imperial Presidency
We noted earlier Arthur Schlesinger’s argument that the use of presidential prerogative, coupled with Congress’s tendency to defer to the president in foreign affairs, has at times led to an imperial presidency. By this phrase, Schlesinger meant a president who assumes he or she is above the law and can do what he or she pleases, whether it is because he or she can claim that there is a crisis and subsequent need to exercise authority, because he or she won the election by such a large margin that he or she can claim a mandate, or because of some other reason. Schlesinger was considering Richard Nixon, who famously observed in an interview with David Frost that an action that is, by law, illegal is “not illegal” if the president does it. It was not uncommon for Nixon to invoke a national emergency to justify exercising his prerogative. At other times, Nixon called attention to a “silent majority” of the public who supported him but were not vocal, thereby suggesting that a Congress that opposed him did so at its own peril.
Wartime Dictatorship
During times of war, presidents have taken actions to limit individual rights on the grounds that such actions protect the public interest. This has sometimes been called a “wartime dictatorship.” Among the most notable occurred during World War II, when President Franklin Roosevelt ordered the quarantine of Japanese citizens and U.S. citizens of Japanese descent with an executive order. Suspected of being loyal to Japan, these persons were rounded up in California, the state of Washington, and Oregon and brought to detention camps or subjected to a curfew that limited their ability to work and otherwise perform ordinary tasks outside the home. Two thirds of these persons were American citizens, a large percentage of whom were born in the United States or whose parents were born in the United States. These limitations on individual citizens’ freedom were challenged before the U.S. Supreme Court. For example, Gordon Hirabayashi was a university student who had never visited Japan and was never suspected of disloyalty to the United States. Nevertheless, he was convicted of disobeying a military curfew on the grounds that the curfew was a legitimate defensive measure during wartime. The U.S. Supreme Court upheld Hirabayashi’s conviction in Hirabayashi v. United States (1943). In Korematsu v. United States (1944), the Court found that forcing U.S. citizens of Japanese descent into internment camps during World War II was a legitimate exercise of presidential power, justified during times of “emergency and peril.”
Once World War II drew to a close, the Supreme Court would defer less to the president’s actions to limit individual rights. In 1988, President Ronald Reagan signed legislation offering a formal apology and compensation to surviving victims of the internment camps.
The Japanese internment camp at Manzanar, California, in 1943. The Supreme Court ruled that U.S. citizens of Japanese ancestry might constitute a security risk, and therefore forcing them into internment camps was a legitimate wartime action.
Use of Military Tribunals
During times of emergency, many American presidents have sought to use military tribunals to try enemy combatants. Following the September 11, 2001 terrorist attacks and the launching of the military action against Afghanistan, the question arose about what to do with enemy combatants captured by American soldiers. According to the Geneva Convention on war, captured enemy soldiers are to be considered prisoners of war and held in prison camps until the end of the conflict, at which point they are to be sent home. Suspected terrorists, however, are neither soldiers, as they are not fighting for a nation state, nor civilians. Can enemy combatants be tried in military courts? Critics argue that to do so would not only violate the Geneva Convention but contradict basic constitutional guarantees. Defenders of the policy point to precedent, the most notable being Ex Parte Quirin in 1942.
This case involved four German marines who came ashore on Long Island, New York, from a submarine with orders to sabotage American war industries. After changing into civilian clothes and burying their uniforms and explosives, they headed to New York City. Several days later, another four marines came ashore in Florida with similar orders. The leader of the New York group then defected to the FBI, and the remaining seven were rounded up, tried, and convicted by a military commission specially appointed by President Roosevelt under a broad claim of emergency authority. On appeal to the Supreme Court, the “Nazi saboteurs,” as they came to be known, claimed that they should be tried in civilian court because they were not wearing their uniforms when arrested. The government argued that they were enemy aliens who entered the country as belligerents. The Court sided with the president, noting that
the detention and trial of petitioners—ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and of grave public danger—are not to be set aside by the courts without the clear conviction that they are in conflict with the Constitution or laws of Congress constitutionally enacted.
Suspects who associate themselves with the military arm of an enemy government are considered enemy combatants and are not then entitled to use civilian courts. Since 2001, this has become a tricky question because the U.S. war on terror is levied against paramilitary terrorist groups that are not employed or otherwise sponsored by a government.
In Hamdi v. Rumsfeld, the U.S. Supreme Court ruled that, in time of war, the president may use military tribunals for emergency purposes. The problem with the ruling is that because of the War on Terror, tribunals could go on indefinitely.
Recall that the USA PATRIOT Act allowed the executive to round up suspected terrorists in the United States and detain them without access to attorneys. In the 2004 case of Hamdi v. Rumsfeld, the Court addressed whether such detention was legal. The case was brought by the father of Yaser Esam Hamdi, who wanted to know what charges his son faced. Because Hamdi was being held in a military facility, the case constituted a request that Secretary of Defense Donald Rumsfeld produce the accused and announce the charges. In this case, the Supreme Court was not ready to give the office of the president the same authority it had had during World War II. On one level, the case was different from that of the German saboteurs because the saboteurs were not U.S. citizens. On another level, the situations were similar because both involved persons labeled enemy combatants and thus should be viewed similarly.
The Court held that a citizen-detainee seeking to challenge his or her classification as an enemy combatant must receive notice of the factual basis for his or her classification and a fair opportunity to rebut the government’s claims. The Court held that circumstances might also dictate that “enemy proceedings” may be tailored to alleviate their uncommon potential to burden the executive at a time of ongoing military conflict. The Court concluded by observing, “There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal.” A president in a time of war, then, has the authority to use military tribunals as an emergency measure. The problem remains, however, that because it was a “war on terror” being fought, and not a war declared against any nation, there was a potential that it could continue indefinitely.
5.7 Limiting Presidential Power
As the preceding discussions of both presidential prerogative and wartime presidents show, a president can assume a great deal of authority and become quite powerful unless the other branches of government impose restraints. Historically, the balance of power between the president and Congress has swung back and forth. Often, after periods of strong presidential authority or perceptions that a president has exceeded the bounds of prerogative, Congress responds with attempts to control the president’s power. There have been occasions when Congress has passed presidency-curbing legislation to reassert checks and balances. The two most notable examples were the 1973 War Powers Resolution and the 1974 Budget and Impoundment Control Act.
War Powers Resolution
The War Powers Resolution of 1973, introduced at the beginning of this chapter, was intended to make the president more accountable to Congress when it comes to using presidential war power. Presidents have seen their commander-in-chief role to include responding to attacks with force as essential to their obligations to preserve and protect the Constitution. As outlined in the vignette that opened this chapter, Congress can fail to pass authorization. In the case of Libya, Congress also voted down a bill to stop funding, perhaps recognizing that pulling the plug would have disastrous implications for the United States’ image abroad. In the end, President Nixon vetoed the War Powers Resolution, claiming that it was unconstitutional. Congress’s response was to override the veto, and the War Powers Resolution remains in place today. Still, presidents have uniformly called the War Powers Resolution unconstitutional because it infringes on their commander-in-chief function.
The last time that a president sought a declaration of war was on December 8, 1941, against Japan. Since then, presidents have used their commander-in-chief power to wage war absent a formal declaration of war. In some cases, such as the wars in Korea (1950–1953) and Vietnam (1961–1975), presidents have circumvented the need for a formal declaration by labeling the conflicts “police actions.” In Vietnam, President Johnson did seek and received a congressional resolution to respond to an attack on American ships in the Gulf of Tonkin in 1964. The deeply unpopular war, while undeclared, was only exacerbated with President Nixon’s secret bombings in Cambodia and elsewhere beginning in 1969.
The Budget and Impoundment Control Act
The Budget and Impoundment Control Act was Congress’s response to Richard Nixon’s practice of refusing to spend authorized and appropriated monies for programs that he did not support. Nixon, who opposed the social spending programs of the 1960s, would request less money for these programs while Congress would respond by appropriating more. Nixon then impounded the difference. The effect of this practice was to use impoundment as a form of line-item veto. Historically, impoundment had been considered a sound fiscal practice because it enabled a president to move funds from over-funded to under-funded programs, or to reduce spending so that the government would not run a deficit.
Like the War Powers Resolution, the Budget and Impoundment Control Act is about presidential accountability to Congress. Title X of the Act expressly forbids the president from impounding funds, although the president can defer spending funds for 45 days. Congress has the right to veto that deferment, which means that the funds would have to be spent as appropriated. If Congress fails to act within 45 days, the deferment continues indefinitely, which means, in effect, that the funds have been impounded. The president can pursue another course by requesting that Congress rescind the amount of money appropriated for a program over what was initially requested. If Congress passes a rescission bill within 45 days, the funds are also effectively impounded. If Congress fails to act, the money must be spent as appropriated. This measure also created a Congressional Budget Office (CBO) to offer independent analyses of budgets proposed by the president. The CBO was designed to be a counterweight to the Office of Management and Budget (OMB) in the White House.
Impeaching a President
Impeachment: Good or Bad?
On Bill Moyers’s show, experts discuss benefits of impeachment.
The Constitution outlines the impeachment process as means of controlling the president. Impeachment is the first step in a formal mechanism by which Congress can remove a president from office. To be removed from office, the president must be convicted by the Senate of “high crimes and misdemeanors,” which is often understood to mean a constitutional crisis where Congress believes that the president is usurping Congress’s powers or is refusing to abide by Congress’s wishes.
In Federalist No. 65, Alexander Hamilton explained that impeachment deals with matters that have violated the public trust:
The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.
In using the term “political,” Hamilton might be alluding to the separation of powers. When the president usurps the authority of Congress, the president has committed the political crime of violating the separation of powers. When Congress investigated the break-in at Democratic Party headquarters at the Watergate Hotel and the possible cover-up by the White House, it often requested information from the president. Nixon typically refused to hand over such information, claiming that it was a matter of national security. Congress tried to secure the information by going to court at times to force the president to do so. The House of Representatives Judiciary Committee voted to impeach President Nixon. Following a court order to turn over the White House tapes, President Nixon resigned before he could be impeached by the full House and tried in the Senate.
5.8 Presidential Character
The president is the nation’s head of state and head of government, as well as a world leader. Consequently, much is made about a president’s character and what that character says about the president’s ability to lead. Political scientist James David Barber (2015) has argued that the president’s character affects how the president handles his or her various roles, which will affect how the president works with Congress, responds to international issues, interacts with the public, and works with the Cabinet and the White House staff. There are four distinct character types based on two questions: First, is the president actively involved in his or her presidency (active) or does he or she delegate responsibilities to others (passive)? Second, is the president happy being president (positive) or is he or she generally unhappy in how he or she engages with the office (negative)? Barber’s work focuses on presidents beginning in the 20th century. The four character types are active-positive, active-negative, passive-positive, and passive-negative.
Active-Positive
Active-positive presidents come into office with an active policy agenda and set out to achieve it through hard work. These presidents have a positive outlook on life and are very energetic. Examples of active-positive presidents include John F. Kennedy and Franklin Roosevelt. They were optimistic, especially Roosevelt during the Great Depression, and they were ready to work with members of Congress to get their agendas passed.
President Woodrow Wilson, who served from 1913 to 1921, was considered an active-negative president. He came to office with an active domestic policy agenda.
Active-Negative
Active-negative presidents also come into office with good ideas, energy, and a desire to accomplish great things, but something in their personality brings them down and results in policy and political failures. Barber considered Woodrow Wilson, Lyndon Johnson, and Richard Nixon to be examples of active-negative presidents.
Passive-Positive
Passive-positive presidents are often viewed as caretakers who do not come to office with any great enthusiasm but might rise to the occasion during a time of crisis. According to Barber, passive-positive presidents are responders and not initiators or pushers. These presidents like to accentuate the positive and be cheerleaders: “In the Presidency they are, in many ways, nice guys who finished first, only to discover that not everyone is a nice guy” (Barber, 2015).
Passive-positive presidents often seek the office because electoral victory represents personal affirmation and boosts their self-esteem. Barber offered Warren G. Harding and Ronald Reagan as passive-positive presidents.
Passive-Negative
Passive-negative presidents do not really want to be president but will serve out of a sense of duty if called upon by their nation. Examples of passive-negative presidents include Calvin Coolidge and Dwight Eisenhower.
Does Character Matter?
There are many who argue that presidential character is important, although it is not always clear that one can know a candidate’s character before the president takes office. Yet there are those who choose not to focus on political character and instead look to moral character as a good indicator of electability. If a president is not trustworthy, it may be extremely difficult for the president to form working relationships with members of Congress, and the end result may be inability to lead.
Ultimately, the issue of character speaks to whether the person is really fit to be president. Other than a minimum age, residency, and that one is a natural-born citizen, there are no formal constitutional requirements for office. In many cases, voters choose a candidate based on a perception of whether this person comes across as presidential. Being president, in the minds of most, may mean acting appropriately, having good character, being dignified and trustworthy, and to some extent appearing to be above the political fray.
6.1 Components of the Federal Bureaucracy
The federal bureaucracy is the structure of administrative agencies and departments in the executive branch that is responsible for delivering public goods and services. For instance, the Social Security Administration delivers retirement funds to older adults. The bureaucracy is also responsible for implementing laws. While Congress and the president establish intent to do something by enacting legislation, the bureaucracy must make it happen. As an example, both houses of Congress passed the Affordable Care Act in 2010, and the president enacted it into law by signing the legislation. Yet the responsibility for implementing the law belongs to the Department of Health and Human Services (HHS), an executive branch Cabinet-level department through the delegation of authority, which was briefly discussed in Chapter 4. Delegation of authority occurs when Congress grants authority to an executive branch department or agency for a specific task. (Authority for this particular law is also delegated to state governments, as they are responsible for implementing various features of the law.) The federal bureaucracy is the part of the government responsible for implementing laws passed by the president and Congress, and, as appropriate, executive orders signed by the president and case law as determined by Supreme Court decisions. The nature and magnitude of the executive branch’s implementation authority has resulted in a large and complex bureaucracy that includes Cabinet-level departments (discussed in Chapter 5) and several other agencies and offices responsible for implementing the law. The work of the federal government must be well organized in order to ensure that the will of the people, as reflected by congressional, presidential, and judicial actions, is carried out. Yet the magnitude of the work warrants a complex network of offices and agencies to fulfill their responsibilities.
Defining Bureaucracy
The term bureaucracy comes from the French term bureau, meaning department. Today we use the term to mean the breaking down of administration into departments that have a specific purpose. The federal bureaucracy is structured to carry out the law in a politically neutral fashion. A large number of government employees function outside the political realm and are not hired or fired based on election results. The purpose of the bureaucracy is to establish an administrative framework to implement the decisions made through the political process.
Sociologist Max Weber suggested that a bureaucracy is the highest form of efficiency.
Successful bureaucracies are often organized according to principles first articulated by sociologist Max Weber. Weber (1947) suggested that a bureaucracy was the highest form of efficient administrative structure in that it was organized to achieve a set of objectives at the least cost. The characteristics that Weber associated with bureaucracy are that it is based on principles of full and official jurisdictional areas and a division of labor. Bureaucracies are also ordered by rules, laws, or administrative regulation, which ensure that it will not operate in an arbitrary manner. The regular activities of the bureaucracy are distributed in the form of official duties, while the bureaucracy has the authority to give commands based on rules. Additionally, a bureaucracy has provisions for the regular and continuous fulfillment of officials’ stated duties, and only those possessing generally regulated qualifications are to be employed.
These principles are found in the modern American bureaucracy, especially in the requirement that executive branch functions are based on written documents. Positions are legally defined, officials normally hold a form of tenure, and the salaries are based on status, or some type of rank within the organization. The bureaucracy allows the executive branch to divide administrative responsibilities based on specialization, and it allows specialists in particular areas to perform their functions according to objective criteria. Thus, bureaucrats seek to accomplish objectives set forth in legislation enacted by political figures. It is not bureaucrats’ responsibility to get involved with questions of whether those objectives are necessarily good, as those are considerations for elected officials.
Political Appointments Versus Career Civil Service System
The bureaucracy is made up of two distinct components: the political administration and the civil service system. The administration refers to the bureaucracy that supports the president. The civil service system refers to those federal employees who are professionals hired on the basis of merit. Whereas the civil service system is viewed as the permanent government, the political administration is viewed as a temporary government, because it is mostly replaced when a new president takes office. Each president’s political administration is composed of his or her immediate White House staff, his or her Cabinet, and the political appointees who staff various agencies and departments. As an example, in the State Department, there is a secretary of state and several assistant secretaries. Each assistant secretary is responsible for a specific policy or programmatic area, such as the assistant secretary for European affairs and the assistant secretary for East Asia. Political appointees in the administration also include the various ambassadors stationed abroad. Each embassy around the world has an ambassador and several counselors who are also political appointees. Below the political appointees are members of the civil service system, and in the case of the State Department, the civil servants are members of the Foreign Service corps.
The key differences between political appointees and civil servants are the method by which they obtain their jobs, the nature of their loyalties, and the tenure of their offices. Political appointees are appointed by the president and confirmed by the Senate. Their loyalty is to the president, who can have them removed from office. Civil servants are hired by the U.S. Office of Personnel Management, and they are chosen on the basis of merit. Individuals going into the civil service often start out in entry-level positions and may work their way up the bureaucratic ladder to more senior-level management positions, which explains why, in part, these persons are often referred to as career civil servants.
Civil servants are supposed to be loyal to their agencies and dedicated to the neutral delivery of public goods and services. Civil servants are governed by the Hatch Act of 1939, which is a law prohibiting federal employees from participating in partisan political activity. The Hatch Act was an outgrowth of a long tradition of civil service reform. Named after Senator Carl Hatch of New Mexico, it was a specific response to allegations that employees of the Work Progress Administration, a New Deal program, were used by Democratic politicians in the 1938 congressional campaign. The Hatch Act specifically prohibits intimidation or bribery of voters and restricts political campaign activities by federal employees. Federal employees below the policymaking level are not permitted to have “any active part” in a political campaign and are prohibited from using any public funds for electoral purposes. Additionally, civil servants are prohibited from promising jobs, promotion, financial assistance, contracts, or any other benefit as a way to coerce campaign contributions or political support. In practical terms, this means that a political administrator may attend a fundraiser for members of the president’s political party, but a civil servant may not. While civil servants are permitted to vote, like any other citizen, they may not campaign for political candidates.
The Hatch Act also prohibits federal employees from being members of “any political organization which advocates the overthrow of our constitutional form of government.” This has been interpreted to preclude membership in the Communist Party.
Library of Congress
Woodrow Wilson argued that administration should be separate from political and policy concerns.
Politics Versus Public Administration
The federal bureaucracy is structured on the principle that politics should not play a role in the execution of government functions. The reason for the separation is to maintain accountability, transparency, and neutrality. In the 1880s, political scientist Woodrow Wilson, who would later become president, put forth the classical model of public administration. Proposing a strong executive who would also be accountable, Wilson argued that public administration should be separate from political and policy concerns. Rather, public administration should be concerned solely with the “detailed and systematic execution of public law” (Wilson, 1887). Law and policies are made by elected officials, who are held accountable by voters at the ballot box. If the public is unhappy with the policy choices made by elected officials, it can always vote them out of office. The role of the bureaucracy is to implement those policies. Wilson specifically called for a set of principles to guide administrators in the efficient performance of their duties.
Consider for a moment members of Congress who need to raise money for their reelection. It would not be out of the ordinary for wealthy contributors to have greater access to these elected officials and a greater chance of being listened to than would ordinary voters. But we would not want a civil service system to give preference to rich people or to Republicans over Democrats in the delivery of benefits such as Social Security payments. The point of the separation is to ensure that delivery of public goods and services will happen on an impartial and equal basis. Civil service, then, requires an intricate set of procedures and rules that must be followed so that the delivery of services will, in fact, be impartial and professional.
6.2 The Rise of the Civil Service System
The modern civil service system is an outgrowth of the Progressive Era (1890s–1920s), when social and government reformers sought to deliver governmental services on the basis of merit. The idea of a neutral, nonpartisan, and impartial civil service system was revolutionary. Prior to the civil service system, people obtained government employment through political connections, also known as the spoils system.
The Spoils System
Under the spoils system, the political party that won office would be able to staff the government. Newly elected persons would replace those working for the government with new employees who were loyal to them. This was, quite literally, a system of “to the victor go the spoils.” This meant that no one could be assured of long-term government employment, and workers were subject to being fired when their patron either left office or was defeated in an election. Workers did not necessarily have to be qualified for their jobs; they only needed to be loyal to the person who hired them. It would not be uncommon, for instance, for a local postal worker to be replaced after a presidential election.
President Andrew Jackson first used the spoils system to reward people who voted for him. Following Jackson’s inauguration as president in 1829, about 20% of the federal workforce, mostly in the Post Office, was replaced. Despite attempts by administration officials to justify personnel changes, it became evident that the sole criterion for employment was loyalty to Jackson.
Ironically, the spoils system reflected Jackson’s revolutionary democratic spirit. Government was supposed to belong to the people. By that standard, it should be staffed by ordinary citizens, not technical experts. But the problem with this system was uneven delivery of services. As an example, a mail carrier whose loyalty was to Jackson and his Democratic Party might be less inclined to deliver mail with the same frequency or care to those areas that supported Jackson’s opponents. Subsequent presidents continued to use the spoils system to encourage people to vote for them.
The spoils system was problematic for various other reasons. One of the legacies of the American Revolution was a deep-seated distrust of centralized power, which meant that Americans had a very negative view of government. For more than a century after the Constitution was ratified, the most desirable government was the one that governed least. A government staffed by experts or elites might be unaccountable to the public. In Europe, it was considered a matter of prestige to be a civil servant. But in those European societies, one who served the public did not necessarily need to be accountable for the simple reason that civil servants had expertise while the public did not. Jacksonian democracy, by contrast, was built on the premise that the common man should govern. Moreover, at the federal level, there was not much for government workers to do. It was only as governmental operations became more complex that there would be a greater need for professionalism.
The Good Government Reform Movement
The Good Government Reform movement sprang from the Progressive Era of the late 19th and early 20th centuries. There were efforts at the national level to eliminate the spoils system and replace it with a professional civil service system as early as 1865.
The reforms that did lead to the modern administrative state actually began at the local level. In cities such as New York around the turn of the 20th century, local party leaders would typically offer patronage to immigrants. They would go to the docks to greet new arrivals with offers of employment and assistance to find housing and other needs. Often, the party leader would own a construction company that held building contracts with the city.
Meanwhile, these party leaders controlled party nominations, and they could help guarantee that their people would be elected by delivering the support and votes of their immigrant employees. In exchange for jobs, these party leaders would request that employees support their candidates. Elected city leaders owed something to these party leaders who put them there, and they paid that debt with construction contracts.
The spoils system also allowed local party leaders to reward their loyal followers with jobs in the local bureaucracy. Irish immigrants and their descendants, for instance, staffed many police departments. As a result, many elites believed that they were being displaced. The only way they could see to reclaim what they considered to be their lost and rightful positions of employment was to choose employees based on merit. In other words, by changing the rules of the game, more educated elites could displace those whose only qualification was their loyalty. Reformers sought greater efficiency and equity in the delivery of local governmental services by pushing to require workers to take and pass qualifying exams.
After President James Garfield was assassinated by a campaign worker seeking a federal job in exchange for his efforts to get Garfield elected, Garfield’s successor, President Chester Arthur, signed a law to eliminate the spoils system.
At the federal level, the impetus for replacing the spoils system was the 1881 assassination of President James Garfield, who was shot by a disgruntled campaign worker whose repeated requests for a job through the spoils system had been rejected. Garfield’s successor, Chester Arthur, had no interest in continuing with a system that he thought resulted in the death of his predecessor, so in 1883 Congress passed, and President Arthur signed, the Pendleton Civil Service Reform Act. Sponsored by Senator George Pendleton of Ohio, this act sought to do away with the spoils system by creating the United States Civil Service Commission to run the federal civil service. Under the new law, applicants for certain jobs would be required to take a civil service exam. Hiring would be based on qualifications and merit, and elected officials and political appointees would no longer be able to fire civil servants. This removed civil servants from the influences of political patronage and partisan behavior.
Efficiency
A civil service system based on meritocracy was supposed to achieve efficiency in the delivery of public goods and services, and with the professionalization of the bureaucracy came the idea that government should be run according to scientific principles of management, which apply business techniques to the public sector and to administrative management. These principles refer to a division of labor and specialization, or the effort to identify the tasks necessary to accomplish an objective and the grouping and coordination of those tasks to maximize organizational efficiency (see Figure 6.1 to see how this works in the U.S. government).
Frederick Winslow Taylor is often viewed as the father of scientific management. Taylor was concerned with how management could take otherwise lazy workers and use “carrots and sticks” to turn them into efficient and productive ones. If good management in private industry could achieve efficiency in the production and distribution of goods and services in the marketplace, then good management in government could achieve efficiency in the delivery of public goods and services.
Efficiency, in simple terms, means producing goods for less cost. Efficiency in public service delivery could be improved if those responsible for their delivery were not bogged down in politics. Efficiency could also be achieved if public goods were delivered evenly and impartially. Yet efficiency would be harder to measure in government than in private industry. As an example, if a major automobile manufacturer introduces a new car model, its cost effectiveness can be measured by tallying up the revenues earned through sales and comparing them with the costs of production. But there would be no way to measure the cost effectiveness of, for example, maintaining national parks. The value of people’s enjoyment of the beauty of national parks may be priceless. Even if there are revenues derived from entrance fees, they might not exceed the costs of maintaining the parks, which would be deemed inefficient in the business world.
A government bureaucracy cannot always apply marketplace efficiency to the public sector. The role of the bureaucracy is to serve the public interest. Still, it is not uncommon to criticize the federal bureaucracy for being inefficient. Because civil servants are immune from politics and almost impossible to fire, elected officials cannot easily control the workings of the government. Similarly, the political appointees who head agencies, unlike managers in the private sector, have no real power to remove workers perceived to be inefficient.
Meritocracy and the Division of Labor
American bureaucracy is built on the twin concepts that individuals should be hired because of their abilities to perform certain tasks, and that the bureaucracy itself is organized according to function. In the State Department, for instance, there is a division for Economic, Energy, and Agricultural Affairs; a division for Political Affairs; and a division for Arms Control and International Security Affairs, just to name a few. The State Department performs many functions. If the same individuals had to perform them all, they would spread themselves thin across the department. Division of labor allows individuals to specialize and become expert in something specific, allowing for greater efficiency.
Along with this division of labor go two principles that underpin bureaucracy generally, and American bureaucracy in particular: chain of command and span of control. Chain of command refers to the hierarchical nature of the bureaucracy. A department secretary oversees undersecretaries, who oversee assistant secretaries, who oversee division supervisors, who oversee assistant supervisors, who oversee mid-level managers, who oversee subordinates beneath them, and all the way down to the lowest level in the organization. The span of control refers to authority that a particular supervisor might have over subordinates in several units. When the chain of command and span of control are put together, the structure of the bureaucracy resembles a pyramid with the head of a department at the top and line workers at the bottom. The line workers are those, like caseworkers in a welfare office or customer service staff in a Social Security office, who are essentially the public face of the federal bureaucracy for those who need their services.
6.3 What Do Bureaucrats Do?
In simple terms, bureaucrats take orders from those above them and give orders to those below in order to administer programs and deliver public goods and services. In the spirit of separating public administration from politics, bureaucrats implement policies and administer programs created by elected public officials.
Internal Revenue Service (IRS) employees sift through tax returns at an IRS tax form processing center. As part of the bureaucracy of the executive branch, the IRS enforces policy that has been passed by Congress and signed by the president.
Implement Laws, Policies, and Programs
The bureaucracy, as the organizational form of the executive branch, “executes” laws and policies passed by the legislative branch. As such, much of the bureaucracy is devoted to regulating individual and group behavior. If Congress passes and the president signs a new tax on millionaires, the agency or department responsible for collecting those taxes is the Internal Revenue Service (IRS), which is part of the U.S. Treasury Department. The IRS monitors individuals’ incomes and the taxes they pay through reporting requirements. Because the IRS has the authority to enforce the existing federal tax code, individuals are required to file annual tax returns, and the IRS can audit those suspected of cheating. If individuals do not submit the taxes they owe at the end of the year, the IRS can collect them by putting a lien on an individual’s wages. It can also enforce collections by initiating judicial proceedings against those suspected of tax evasion.
All these activities are examples of an agency implementing laws that Congress passed and that, by extension, reflect the will of the people. The bureaucracy also includes FBI agents who investigate crimes and federal prosecutors who suspect criminals on behalf of the FBI, workers who deliver the mail, physicians in veterans hospitals, caseworkers who process applications for public assistance, analysts in the Department of Labor who report on monthly unemployment figures, and scientists in the National Institutes of Health (NIH) who look for cures for cancer or in the National Aeronautics and Space Administration (NASA) who manage space exploration.
Make Laws Through Rule-Making
In theory, the bureaucracy does not make laws, as only Congress has the authority to do so. In reality, though, the bureaucracy makes law through its rule-making function. Once Congress passes a law, the bureaucracy sets the rules for how that law will be implemented, in essence filling in the details. These rules are usually published in the Code of Federal Regulations (CFR) and may also appear in the Federal Register. Published rules are considered by the courts to be as legally binding as statutory law—law made by Congress—provided that they are a reasonable interpretation of the underlying statute. The bureaucracy thus establishes a written record of what it does and makes it publicly available.
Adjudicate Decisions and Disputes
The bureaucracy also exercises a degree of judicial authority through its administrative adjudication function. When an agency writes rules for how people can receive benefits, it also establishes procedures for how benefits can be terminated. The Administrative Procedures Act of 1946 has adjudicatory requirements that apply when an agency’s statutes require that an order—not an agency rule—be issued. The order is “to be determined on the record after opportunity for an agency hearing.” The result is that such proceedings are to be conducted in a fashion similar to a court.
Proceedings are presided over by impartial administrative law judges who are appointed by the agency with the approval of the Office of Personnel Management. Administrative law proceedings include oral hearings and cross-examination of witnesses and are fully recorded along with documentary evidence. An administrative law judge makes an “initial decision” that is final unless it is appealed to the head of the agency. An agency head can also make a decision after receiving a recommendation from the administrative law judge. Still, courts can review the decisions of agencies, but they are likely to overturn decisions only if they do not conform with the procedural requirements of the Administrative Procedures Act and other statutes. Or they may overturn a decision if they find that an agency’s “action, findings, and conclusions” are not supported by substantial evidence.
The bureaucracy in effect acts like a court, and what occurs is an administrative hearing. Suppose, for example, that the Department of Health and Human Services (HHS) decides to terminate a recipient’s benefits because that person failed to abide by the rules. Suppose the specific rule required that the person report to a work site for a minimum of 20 hours a week, and he failed to do this. HHS, of course, justifies its actions by pointing to the rules in the Federal Register. Still, the recipient is a citizen and has rights, so he appeals the termination of benefits decision. He presents his case to a panel in HHS that will hear and adjudicate the appeal. The judicial power of the bureaucracy is referred to as agency adjudication, and it occurs when someone has violated agency rules. If the recipient who loses benefits is not satisfied with the result of the hearing, he can always appeal the results to an actual court.
6.4 Types of Bureaucratic Departments
The federal bureaucracy is made up of several types of organizations, and the president, at least at the political level, makes different types of appointments to each organization. Most Americans are familiar with the traditional Cabinet departments such as Justice, Treasury, and State. But there are also independent agencies, independent regulatory commissions, and government corporations. Each of these types of organizations has layers of political appointees and civil servants.
The Cabinet
The 15 Cabinet departments, listed in Table 6.1, comprise about 60% of the federal workforce. These departments generally fall into three categories, although some departments could be classified in more than one category. These categories include functional, clientele, and geographic. Regardless of type, each Cabinet department is further divided into various smaller units, such as bureaus, divisions, or offices. Much of the work gets done in these smaller units.
Table 6.1: Cabinet departments
| Department | Function | Date of creation |
| Department of State (DOS) | Handles foreign policy and represents the nation abroad | 1789 |
| Department of the Treasury | Manages taxes, revenue and sometimes broader economic policy | 1789 |
| Department of the Interior (DOI) | Maintains national parks and other public lands (most of the nation’s parks are in the West) | 1849 |
| Department of Agriculture (USDA) | Serves the interests of farmers | 1862 |
| Department of Justice (DOJ) | Enforces federal law and prosecutes criminal violations of it | 1870 |
| Department of Commerce | Serves the interests of businesses | 1903 |
| Department of Labor (DOL) | Helps American workers by improving working conditions, addressing job training, minimum wage, employment discrimination, and unemployment insurance | 1913 |
| Department of Defense (DOD) | Coordinates the nation’s defense | 1947 (The Department of Defense was originally created as the Department of War in 1789 and renamed in 1947 as the Department of Defense.) |
| Department of Health and Human Services (HHS) | Helps low-income individuals access free or low-cost health services and affordable housing | 1953 (The Department of Health and Human Services was originally the Department of Health Education and Welfare. The Department of Education was created as a separate department in 1979.) |
| Department of Housing and Urban Development (HUD) | Improves and develops the nation’s communities and enforces fair housing laws | 1965 |
| Department of Transportation (DOT) | Ensures a fast, safe, efficient, accessible, and convenient transportation system | 1966 |
| Department of Energy (DOE) | Advances the national energy security | 1977 |
| Department of Education (ED) | Promotes educational quality and equal access to education | 1989 |
| Department of Veterans Affairs (VA) | Administers benefit programs for veterans, their families, and their survivors |
Independent Agencies
An independent agency is a federal body that is independent of both the president and Congress. Congress creates the agency and the president appoints people to it, but after that neither Congress nor the president has much control. That is the idea: to have an agency that can oversee a specific policy or program function without being subject to political pressures. At the same time, independent agencies are subject to oversight, as they can be called to testify at congressional hearings.
Federal Reserve Chair Janet Yellen was nominated by President Obama in 2014 for a 4-year term. The Federal Reserve Board chair serves as part of the president’s administration but makes decisions independent of executive oversight.
The Federal Reserve Board, or “the Fed,” which regulates banks and the money supply, is an example of an independent agency. The president appoints a chair for a period of 4 years, and people who are known as “governors” (not actual elected state governors) for 14-year terms. Once they are in place, governors may be removed by the president for cause. Although Congress regularly calls the Fed chair to testify, it has no authority over the agency short of rewriting the legislation that created it in the first place.
Independent Regulatory Commission
An independent regulatory commission is like an independent agency with a narrow focus and specific function. Examples include the Securities and Exchange Commission, which regulates trading activity on Wall Street; the Federal Elections Commission, which regulates campaign and election activity; the Interstate Commerce Commission, which regulates the movement of goods across state lines; and the Federal Communications Commission, which regulates interstate and international radio, television, wire, satellite, and cable communications as well as telephone companies, including wireless service providers.
If regulation were handled by Congress, it might not happen at all, and it certainly would not happen evenly. Likewise, if the Federal Election Commission were subject to traditional executive branch control, it might hesitate to investigate illegal presidential campaign contributions because the recipient of those contributions might well now be the president overseeing the commission. Immunity from political pressures and from arbitrary removal enables an independent regulatory commission to do its job.
Government Corporations
A government corporation is a legal entity created to exercise some of the powers of the government. It is either wholly owned or partially owned by the government and is often structured as a nonprofit organization. However, it is not entirely part of the federal bureaucracy. Government corporations are intended to serve a valued public purpose while maintaining a degree of independence. An example is the U.S. Postal Service (USPS), whose mission appears below:
The Postal Service shall have as its basic function the obligation to provide postal services to bind the Nation together through the personal, educational, literary, and business correspondence of the people. It shall provide prompt, reliable, and efficient services to patrons in all areas and shall render postal services to all communities.
The USPS is required, by statute, to provide the same services to all Americans, such as delivering first-class mail at the same price no matter where they live or the actual cost of delivering that mail.
Types of Political Appointments
Political appointments often fall into three general categories: specialists, careerists, and clientelists. The specialist appointee generally has specific expert knowledge that is critical to running a functional department. As an example, the State Department is functional, in that its specific purpose is foreign policy. However, a secretary of state and his or her assistant secretaries are likely to be foreign policy experts and are therefore examples of specialist appointments.
An example of a careerist appointment would be when President Richard Nixon (center) had William P. Rogers (left) serve as secretary of state but appointed Henry Kissinger (right) as national security advisor. His goal was to run foreign policy from the White House, not the State Department.
Presidents do not always appoint specialists to top positions in the government. Presidents may appoint careerists, such as prominent political figures who have served in different presidential administrations in a variety of capacities. Careerists bring knowledge of how Washington works and how to work through the bureaucracy, and they often have connections with members of Congress. Because the appointees are the ones who have to represent their agencies and departments before Congress, their congressional connections are critical, especially when it comes to requests for funding. An example of a careerist is Norman Mineta, who served as member of the U.S. House of Representatives from 1975 to 1995, then secretary of commerce under President Bill Clinton and later secretary of transportation under President George W. Bush. Even though Mineta was a Democrat, President George W. Bush understood the value of Mineta’s knowledge of Washington politics when he chose him to serve in his Cabinet.
Sometimes a president appoints a careerist because he or she would like to have a greater say in a particular policy area. For instance, careerists are often appointed to be secretary of state by presidents who consider themselves sufficiently expert in foreign affairs. A non-expert at the State Department allows a president to run policy from the White House. This was true in the early years of the Nixon administration, when William P. Rogers was secretary of state and Henry Kissinger was national security advisor. Foreign policy was generally run from the White House, and the secretary of state was little more than a figurehead. Later, when Kissinger became secretary of state in 1973, foreign policy was once again made in the State Department. Although the term was not used then, Kissinger was in many respects Nixon’s foreign policy czar.
The clientelist is the third type of appointment that presidents make, usually to agencies or departments that serve a specific clientele. A clientelist is often appointed because he or she is believed to satisfy a particular constituency and can bring that constituency’s support back to the president. An example of this is the secretary of agriculture. Because the Department of Agriculture primarily serves the interests of farmers, it makes sense to appoint an agriculture secretary from those states that form the farm bloc. Coming from that area, he or she will understand what farmers want and may be able to deliver the farmers’ support in the next election.
6.5 Who Controls the Bureaucracy?
The federal bureaucracy is often referred to as the “fourth branch of government” because it is almost like a branch unto itself. Most workers in the bureaucracy are civil servants, so it is very difficult for political leaders to control what they do. In the private sector, a worker who does not do what the president of his or her company wants can be fired. That is not the case with the civil service system, where the president or even his or her political appointees cannot easily remove a career civil servant. Civil service workers are protected by civil service rules, and to remove a civil service employee, even for cause, requires several steps in a protracted process that guarantees the employee’s rights to appeal.
Unlike in the spoils system, a new Republican president cannot order the termination of all employees in the Department of Health and Human Services because the president thinks they might have voted for the Democratic opponent in the last election. Civil servants can be fired for failure to perform their duties, but the procedures to do so are complex. Employees facing termination may appeal to the Civil Service Commission.
Still, there are ways to control the bureaucracy, or at least make it more accountable. Foremost among these are the president’s ability to control budgets for specific agencies, and Congress’s ability to hold legislative oversight hearings. Even though it is immune from traditional political pressure, at the end of the day the bureaucracy, like any other institution, still needs to maintain a measure of support from the public.
Presidential Control
Political scientist Francis Rourke (1984) has observed that a key theme in American politics over the years has been the struggle for control over national policy between the White House and the bureaucratic organizations. Rourke has suggested that a president has three courses of action. First, the president can fill the top echelon of executive organizations with political appointees who share his or her values and hope that they will protect his or her interests. Second, the president can assign members of the White House staff to monitor the work of executive agencies. Third, the president can create structures in the White House that will take the lead in policy areas of importance to him or her. The use of White House czars reflects this third course. In the past, however, presidents took one or more of these courses of action in response to deep dissatisfaction with bureaucratic performance.
As mentioned in the opening vignette, President Obama began his presidency by appointing several czars, which signaled that he would prefer that policy direction come from him and the White House. President Nixon, in particular, used this approach when he made all foreign policy through Henry Kissinger and the National Security Council rather than William P. Rogers and the State Department.
The president can also control the bureaucracy through the budgeting process. Although Congress technically appropriates money and therefore must approve of budgets, as we discussed in Chapter 2, the president prepares the budgets and submits them to Congress.
There are three basic budgeting techniques: line-item budgeting, planning program budgeting, and zero-base budgeting. With line-item budgeting, money is appropriated for specific items such as equipment, personnel, and programs. A department that received $40 billion last year can usually expect the same this year and perhaps 4% more. If there are to be budget cuts, its budget will not be cut very much—maybe only by 2–3%. This is also known as incrementalism, which is the idea that everything is completed in small steps. The point of line-item budgeting is that it is predictable, and there is very little concern that a department or agency will be completely defunded. However, without such danger, the president does not enjoy the same level of control that he or she might were he or she able to eliminate departments or agencies. Moreover, a bureaucracy that can expect a consistent budget has very little reason to explain itself and justify how it is spending public monies.
Republican Paul Ryan, House Budget Committee chair, references President Obama's 2014 fiscal budget proposal. The president can often use the budget to exert a degree of executive control over bureaucratic agencies. Representative Ryan has since become speaker of the House of Representatives.
A president might be able to achieve accountability by forcing agencies and departments to justify their expenditures based on the programs that they administer. Planning program budgeting (PPB) is a technique whereby a budget is organized around programs rather than items. The idea was first introduced during President Kennedy’s administration by Defense Secretary Robert McNamara. A budget would be organized around specific programs like the North Pacific Fleet, Aircraft Carrier groups, and Amphibious Landings. The Defense Department would undertake a cost-benefit analysis to determine whether benefits of a particular program justified its costs. This question, of course, is a political one, as benefits are determined according to whose interests are being served, or in terms of who is getting what, when, and how. The implication, however, is that if the benefits cannot be shown to justify the costs, the entire program can be cut. Politically, this is often difficult because every program has its own base of support. But it does force the bureaucracy to be accountable to the political leadership in the executive branch.
A third type of budgeting technique is known as zero-base budgeting (ZBB), which was introduced during the Carter administration. The basic idea is that departments and agencies should not assume that, just because they had a budget the previous year, they are necessarily entitled to one now. On the contrary, they should assume that they have no budget and that they are preparing one from scratch. They are in effect being asked to explain to the political leaders what it is they do, why it is essential that they continue doing it, and just how any appropriation of public monies will be spent. In practice, those preparing budgets begin from a certain level of spending, perhaps around 80% of their previous budget. They then put together “decision packages” consisting of different ways that the level of services could be increased and then rank them. This way, political appointees can establish priorities for spending increases.
As with the PPB, ZBB requires bureaucrats to be accountable by engaging in public justification. ZBB similarly assumes that if the justification is not adequate, the agency or department can be eliminated. Again, it would be politically difficult to eliminate a whole unit because agencies and departments typically have supporters in Congress as well as among a variety of interest groups. Still, by forcing bureaucrats to jump through the hoops associated with both ZBB and PPB, the president is able to exert some control. At the very least, the president can ensure that an agency or department perceived to be out of control receives less money.
Management by Objective
Management by objective is the idea that the president and his or her political appointees can establish objectives for each program as well as a set of measures to determine whether those objectives have been met. Agency heads establish a set of quantified objectives to be achieved in the coming year and then break down each objective into quarterly targets. This process is repeated down the chain of command. The goal is to achieve greater efficiency through clearly stated objectives that are easily quantified. If everybody is forced to demonstrate that objectives are being achieved, and how they are being achieved, there will be greater accountability. Implicit in all this is the threat that if objectives are not achieved, major changes can be made, including overhaul of departments, elimination of programs, and termination of personnel.
Congressional Control
As we mentioned in Chapter 4, Congress holds the executive branch accountable to the public through legislative oversight hearings. The bureaucracy cannot function if Congress does not appropriate money to it. Thus, controlling the bureaucracy through legislative oversight is a matter of bringing Congress’s power of the purse to bear. Typically, it is the political appointees who actually testify before Congress about what their departments are doing, how they are administering specific programs, and how public money is being spent. But it is the career bureaucrat who is often required to prepare the actual testimony. Agencies and departments are also required to submit reports to Congress on a periodic basis, and civil service workers write these reports. In an extreme type of control of this civil service workforce, on the basis of hearings, Congress can rewrite legislation to change the bounds of an agency’s jurisdiction and authority. It can also appropriate less money to an agency. Congress does not need the president to request less money; it can do this on its own.
Judicial Control
Bureaucracies that implement policies and programs are an extension of the president executing the laws of the land. They are the administrative machinery of the executive branch. But the bureaucracy still has to operate within the bounds of the law. Thus, court rulings can affect the scope of administrative authority. A court can either expand bureaucratic authority or limit it. The Internal Revenue Service (IRS), for instance, routinely enforces tax collection through random audits of Americans. If the IRS intends to audit someone, that person is forced to comply, though he or she can bring an accountant or lawyer along to ensure due process. Suppose that someone believed that an audit was a violation of his or her privacy. This person could file suit in court in an attempt to force the IRS to stop random audits. Were a court to order that future audits needed a prior court order so as not to invade privacy, it would, in effect, be narrowing the scope of the IRS’s authority.
6.6 Bureaucracy, Congress, and Interest Groups
The relationship between Congress and the bureaucracy is not always characterized by Congress holding the executive branch accountable. There are also times when Congress and the bureaucracy work together to satisfy mutual interests. Additionally, there are instances when agencies appear to serve interest groups to the exclusion of the public interest. Some of these relationships are known as the iron triangle of representation, and others are referred to as bureaucratic capture.
Iron Triangles
An iron triangle is a relationship among a committee in Congress, an interest group, and an administrative department or agency whereby each attempts to satisfy the others for mutual gain (see Figure 6.2). For example, interest groups lobby members of Congress (that is, they try to influence them) for programs or projects that will benefit them. Congressional members in turn lobby administrative agencies for contracts to run these programs. The bureaucracy lobbies Congress for funds for programs so that it in turn can award contracts. Members of the bureaucracy also lobby for budgets, because the size of a budget is often seen as a measure of prestige and power. Members of Congress may lobby the administrative agency to award a contract to a particular interest group in the hopes that they will be repaid with campaign contributions. Administrative agencies also seek to satisfy interest groups by awarding contracts to them because some bureaucrats might want to trade government jobs for more lucrative private ones. They may also seek to satisfy interests in the hopes that lobbying Congress will result in a greater appropriation for those groups.
By and large, iron triangles are considered to be impenetrable. Although each point of the triangle does allow for various interests to gain access, the close relationships among the three sides make it extremely difficult to introduce new and innovative policies. For example, an idealistic president may want to cut the defense budget to have serious arms control, but he or she will find it extremely difficult to do so. Still, iron triangles allow for individual concerns to be represented through the interest groups representing those concerns as part of the iron triangle relationship.
Bureaucratic Capture
When an agency is in the service of its clientele and the interests of the clientele come before the interests of the public, it is said to have succumbed to bureaucratic capture. For instance, the Federal Aviation Administration (FAA) regulates the airline industry with the goal of keeping the flying public safe. Yet in practice the agency is often viewed as a traditional clientele agency whose first mission is to serve the interests of those it is supposed to regulate. If, for instance, it eases maintenance requirements on aircraft and an unintended consequence is a plane crash, critics will assume that those requirements were eased to allow the airlines to save money and boost profits. If the FAA had demanded harsher maintenance requirements, it would have been serving the public interest. Because instead it gave in to the demands of the airlines, it is an example of bureaucratic capture.
Officials from the Federal Aviation Authority (FAA) investigate a plane crash. The FAA is a good example of bureaucratic capture because it is supposed to be serving the public interest, but too often it gives in to the demands of the airlines and other special interest groups.
An agency may be captured as a function of an iron triangle. In these cases, not only does it specifically serve the interests of its clientele, but it does so with the express blessing of the congressional committee that is supposed to oversee it. When an agency is captured, there is, in effect, no accountability, and it is that much harder for politicians to control it. It generally takes a severe crisis or multiple crises, such as several plane crashes where hundreds of lives are lost, to break a bureaucratic capture.
Remedies
Political scientist Theodore Lowi (2009) has contended that Congress is responsible for the creation of iron triangles and the bureaucratic capture that results. Because Congress delegates authority to the bureaucracy to accomplish its objectives, interest groups will inevitably arise to get a piece of the action. The solution might be to withdraw the delegation of authority. However, this does not seem feasible because as citizens expect more of their government, they demand more of Congress, whose members must respond by creating new programs. Congress then has to delegate authority so that the new programs are implemented, and this in turn empowers the bureaucracy. As a consequence, bureaucracy becomes a symbol of big government, which is counter to the culture of limited government upon which the country was founded.
One remedy to the problem of a cumbersome bureaucracy might be a move toward limited government, but it is not clear whether limited government is realistic in a complex society. Lowi has suggested the remedy of returning to “juridicial democracy,” which would amount to limiting federal action “to those practices for which it is possible to develop a clear and authoritative rule of law, enacted democratically and implemented absolutely” (2009). In other words, federal action needs to be subject to popular control, as exercised through the representative Congress. Lowi has even suggested that the Supreme Court be asked to declare unconstitutional any delegation of power to an administrative agency that is not accompanied by clear standards of implementation. In other words, the traditional disdain for big government was really a concern that the executive would become all powerful and act arbitrarily.
A society as complex as the 21st century United States requires a greater executive presence, which in turn involves greater bureaucracy. But there still need to be checks on the powers of the executive, and the concept of juridical democracy is offered as one mechanism for ensuring that the democracy does not act arbitrarily. Recall from Chapter 1 that the desire to check the executive was a key motive for the colonists to declare independence from the British.
6.7 Bureaucracy in American Political Culture
The revolutionary spirit from which the American nation was born has generally contributed to a negative perception of bureaucracy. Government institutions have not always been viewed in the most positive terms, and the bureaucracy has often been seen as a concrete manifestation of government power.
Bureaucracy as Active Government
The United States has long had a tradition of opposing active government that has added to the ambivalence toward administrative agencies. One of the core American values is individual liberty, and because government institutions were designed to protect individual liberty through the separation of powers, there has long been a belief that liberty and strong central governmental authority cannot coexist. The Framers actually admonished that we should be jealous of government power, as such power would represent a threat to liberty. The growth of American bureaucracy, however, coincides with the transformation from passive to active government, and with the evolution from dual federalism to cooperative and then creative federalism, as discussed in Chapter 3. This growth has been contrary to the values of limited government.
A tradition that opposes active government contributes to the belief among many Americans that government control generally leads to more problems than solutions.
It is not just that Americans are ambivalent about administrative agencies because they are concerned about their liberty, however. Opposition to active government in the United States has also made Americans ambivalent out of the belief that government only fouls things up. Government should be limited in its functions, the thinking goes, because individuals are capable of doing things better and more efficiently on their own.
Much of the opposition to health care reform had to do with concern that if bureaucrats decided who gets what type of treatment, individual liberty would be infringed upon, and that a system that was perceived to run well in the private sector would be destroyed by government control. If the costs of health care are too high, the argument goes, the answer is not government bureaucracy, but more competition in the marketplace.
Some of these views are derived from a conviction that markets are more efficient. But some of these views may also be derived from a historical distrust of government. Concerns about active government in the United States have a much longer history than the Progressive tradition, from which the more modern view of government as a force for good descends. To a certain extent, modern administrative theory is built on the reality that markets do not always work and, left to their own, unregulated, devices, free markets can result in unemployment, poverty, great disparities in wealth and income, products that only wealthy people can buy, and in general much human suffering and misery. The modern administrative state exists to compensate for many of these market failures. Free markets, in other words, require strong mediating bureaucratic structures if they are to succeed for everyone.
Arguments for government regulation stem from the observation that government is not the only source of centralized power about which citizens should be jealous. Rather, corporations are also sources of strong centralized power with the potential to limit our freedom. According to this argument, Americans need to be jealous of both corporate and government power. Government, then, has a role to play in making a more fair and equitable society.
Bureaucracy as Red Tape
The idea that bureaucracy is full of red tape implies that government cannot deliver goods and services efficiently. Consider two images: one is a McDonald’s restaurant and the other is the U.S. Post Office. In McDonald’s, the goal is to sell as much fast food as quickly as possible. Fast food restaurants appeal to customers who do not want to take the time for a leisurely meal, but instead want speed at low prices. If customers are kept waiting in long lines for long periods of time, they will go elsewhere. Employees are expected to serve customers efficiently, or they will lose their jobs. McDonald’s follows the rule of competition, and when there is competition, there is greater efficiency.
Government bureaucracy is intended to be slow and cumbersome so that individual liberty is protected.
Customers at a typical post office, by contrast, may encounter long lines and be frustrated with the level of service. Unlike employees at McDonald’s, who may be terminated without cause, postal workers are protected by civil service rules. This runs contrary to Taylor’s principles of scientific management, which hold that efficiency will be accomplished only if management can control the workforce through carrots and sticks. A civil service system removes that control. Because the Post Office has a virtual monopoly on mail service, customers cannot readily go elsewhere when they find themselves frustrated with their mail service. Unlike McDonald’s, which has the flexibility to locate in areas that will bring high customer volume, the USPS has no choice as to who it serves or where its customers live. The cost of sending a 1-oz. letter is the same whether that letter is delivered across town or across time zones. The USPS must also deliver the mail 6 days a week. Abiding by these federal rules may contribute to the perception that the USPS is not performing in a fiscally responsible manner.
When the Post Office is compared to the McDonald’s restaurant, it looks inefficient. But the image of the bureaucracy as red tape extends beyond inefficiency at the level of line workers. It also implies that there are too many layers of decision making, which slow things down even further. The American cultural traditions of liberty and the pursuit of happiness in the marketplace have fueled this ambivalence toward administrative agencies.
Bureaucracy as Accountability
Political scientist James Q. Wilson (1991) has argued that the red tape and inefficiency of the bureaucracy help ensure accountability. Like the American government, the bureaucracy is intended to function slowly and in a cumbersome manner in order to be accountable. The effect is that the bureaucracy protects individual liberty. If bureaucrats have to wade through several layers of red tape, they are forced to explain and justify their actions. This is the meaning of governing by written rules. A slow and tedious process also helps ensure that the actions that are taken are correct. The layers reinforce an administrative command, with authority passing through stages that provide accountability and thus protect liberty.
7.1 The Constitutional Basis for a Judicial Branch
The Constitution states that there will be one Supreme Court and additional lower courts if Congress chooses to create them. It also establishes that judges will be appointed to the federal bench by the president, subject to confirmation by the Senate through its “advise and consent” role established in Article II. Once appointed, federal judges and Supreme Court justices serve for life “with good behavior.”
Interpreting the Constitution
The Constitution changes more through interpretation than through the formal amendment process, although there have been periods when numbers of amendments have been passed in a short period of time. The language of the Constitution tends to be very general, allowing institutions such as the presidency to gradually change with the times. Some people argue for the literal interpretation of the Constitution, what's called "originalism." This is especially true with issues such as gun control and the Second Amendment. Constitutional debates will continue to enliven the contemporary scene as they did in 18th-century America.
The Constitution is otherwise unclear about the role of the judiciary. The Framers expressed several ideas about what the Supreme Court should do. One idea was that the Supreme Court should determine whether laws were constitutional. Another idea was that the Supreme Court could offer legal advice to the president and members of Congress upon request. In the nation’s early years, the Supreme Court actually did this, but in the interest of maintaining the separation of powers, it stopped and sent President Washington a message informing him it was confident that his judgment would discern what was right.
Article III
Article III of the Constitution says, “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The Supreme Court is the only judicial institution that is created by the Constitution, while the lower courts are created by Congress.
Article III makes it clear that the Framers assumed most trials would take place in state courts and not in federal courts:
The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
If states were responsible for trying criminal wrongdoing, what were the federal courts supposed to do?
The Least Dangerous Branch
In Federalist No. 78, Alexander Hamilton famously asserted that the judiciary would be the least dangerous branch of government because it would possess neither the power of the sword nor the power of the purse:
[T]he judiciary, from the nature of its function, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honors but holds the sword of the community. The legislature not only commands the purse but prescribes the rules to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or the wealth of the society, and can take no active resolution whatever.
The power of the sword refers to the president’s power to be commander in chief of the armed forces as well as having the primary responsibility to enforce the laws. In noting that the Supreme Court does not have the power of the sword, Hamilton acknowledged that the judiciary has no mechanism to enforce its rulings; rather, it has to rely on the executive to enforce its decisions. In noting that it also lacks the power of the purse, Hamilton acknowledged that Court rulings that may require the appropriation of money would rely on the approval of Congress. All the judiciary can realistically do is issue an opinion on a matter and hope that the other two branches of government see fit to enforce it. In essence, Congress and the president will support Court rulings because doing so appeals to their sense of what is right.
Hamilton suggested that the judiciary cannot be dangerous because it has to rely on the other two branches for its authority. The other two branches must see its rulings as reasonable. It is only in this way that the Court will have authority.
7.2 Jurisdiction and the Federal Court Structure
The United States enjoys a dual court system, with hierarchies of courts at both the state and federal levels. State courts have jurisdiction (authority) over matters that are governed by state laws, and each state has its own court system. Because Article III gives it the power to establish inferior courts, Congress determines the jurisdiction of the federal court system.
At the federal level, the Constitution mentions only one Supreme Court, but the judiciary is an entire bureaucracy unto itself. Like all bureaucracies, it is hierarchical. At the top sits the Supreme Court, headed by the chief justice (Figure 7.1). Just beneath the Supreme Court sit the United States Courts of Appeals, and below them sit the district courts and specialty courts that include international trade, tax, veterans’ affairs, federal claims, and military review courts. The work of lower courts is subject to the review of higher courts. This federal court structure is entirely a creation of Congress.
Figure 7.1: Federal court structure
The federal court system consists of three levels of courts.
Judiciary Act of 1789
The foundation for the U.S. judicial system lies in the Judiciary Act of 1789. It established that the Supreme Court would consist of one chief justice and five associate justices. The number of justices was never fixed in the Constitution but was left to the discretion of Congress, and today the Supreme Court has eight associate justices plus the chief justice. The Judiciary Act also established that the Supreme Court would sit in two sessions each year, with the first beginning in February and the second beginning in August. Today, there is only one session, which begins in October and ends in late June or soon thereafter.
The Judiciary Act divided the country into 13 districts and established a district court in each. It also divided the country into three circuits (Eastern, Middle, Southern) for the purposes of appeal. Congress determined which states would fall into which districts and which districts would fall into which circuits. For example, there was the district of New York, the district of Pennsylvania, and the district of New Jersey. Each state comprised one district, except for Massachusetts and Virginia, which comprised two districts.
In the early days of the republic, the circuit courts did not have their own judges; rather, Supreme Court justices would “ride the circuit” and preside over court proceedings when the Supreme Court was not in session. Today, each circuit has its own judges, but each Supreme Court justice is still assigned to a circuit to be on hand to address urgent matters. This often happens in capital cases when someone on death row makes a last-minute appeal for a stay of execution, which the justice responsible for that circuit can decide without calling the entire court back into session.
Also created by the Judiciary Act was the office of the attorney general, which is responsible for representing the United States before the Supreme Court. In addition, it created a U.S. attorney and U.S. marshal for each district and authorized citizens to represent themselves or to be represented by attorneys in federal court. The person who is now responsible for representing the United States before the Supreme Court is called the solicitor general. According to the U.S. Department of Justice,
The task of the Office of the Solicitor General is to supervise and conduct government litigation in the United States Supreme Court. Virtually all such litigation is channeled through the Office of the Solicitor General and is actively conducted by the Office. (2014, para. 1)
The Federal Court System Today
The federal system still consists of three court levels: the district court (also known as trial court), the circuit courts of appeals, and the Supreme Court. The district courts are where cases originate; they are the entry points into the federal court system, and their purpose is to host federal trials. There are 94 district courts nationwide, with at least one in each state, and up to four districts in the most populous states such as New York and California. District courts do not cross state lines.
The losing parties in federal district court have an automatic right to appeal, or apply to a higher court—in this case, the circuit courts of appeals—to review and reverse the decision. The circuit courts of appeals are also known as appellate courts. There are now 12 circuits in the United States, and each covers several states (see Figure 7.2). In addition to these regional circuits, there is a federal circuit court of appeals. Only one judge presides over district trials, while three judges preside over the appellate court. Congress initially set the size of the first U.S. Supreme Court at six justices, although the number of justices varied between six and 10 until 1869, when the number of justices was fixed at nine. Congress also determined how many courtrooms there will be in each district and whether there ought to be additional layers of courts.
In practical terms, this structure means that a suspect is first tried in a district court. If convicted, the person may appeal to the circuit court. If the circuit court upholds the conviction, the conviction can be appealed to the Supreme Court. The Supreme Court then decides whether it wants to consider the appeal. This process gives the Supreme Court authority over the lower courts. But if it wanted to, Congress could create a court between the Supreme Court and the circuit courts to decide whether a case would reach the Supreme Court, thereby narrowing the authority and jurisdiction of the Supreme Court.
District Courts and Original Jurisdiction
District courts serve as both courts of original jurisdiction because these are the courts where both civil and criminal cases are tried for the first time. District courts also serve as appeals courts if state courts have ruled on a matter that is later appealed. When serving as trial courts, district courts generally determine the guilt or innocence of a defendant (matters of “fact”) rather than the validity of any law. As an example, a suspect charged with a federal hate crime would be tried first in a district court. This court would determine whether the suspect committed a crime, but in this role it would not determine whether the federal hate crimes law is constitutional, nor would this court interpret the meaning of the federal hate crimes law. Similarly, in a civil suit between an individual and a corporation, the district court would determine whether the corporation was guilty of the accusation levied by its accuser.
There are some cases where district courts, in their capacity as courts of original jurisdiction, do decide matters of law. For instance, following passage of the 2010 Affordable Care Act, a coalition of states immediately sought to block its implementation on the grounds that requiring individuals to purchase health insurance is unconstitutional. In January 2011, a federal district court in Florida ruled that key provisions of the law, most notably the individual mandate, the requirement that individuals maintain health coverage for themselves and their dependents, were unconstitutional but did not prevent its implementation, pending an appeal.
Another quality unique to district courts is that cases tried in these courts involve juries, while circuit courts of appeals and the U.S. Supreme Court involve only judges. The concept of jury trials is found in the Sixth Amendment, which states, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” Additionally, the Seventh Amendment states:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the Common law.
The accused in criminal prosecutions are tried by impartial juries in the district where the crime occurred. For example, the trial of a person accused of committing a federal crime in Arizona would be held in the Federal District Court of Arizona. Defendants in civil cases also have the right to a trial by jury in the district in which the allegation originates. If employees of a large Washington state-based corporation bring a class-action lawsuit against their employer, this group is entitled to have a jury trial in a Washington state district court.
The second part of the Seventh Amendment suggests that the jury determines matters of guilt, innocence, or liability. The idea that no other jury will hear the case suggests that appeals are heard by judges only. In both criminal and civil cases, this would seem to make sense. Because appellate courts are courts of law, which do not determine guilt or innocence, then judges alone are deemed to be the best equipped to make decisions. In courts of fact, by contrast, judges need to serve as referees for juries that weigh evidence.
In addition to district courts, the Supreme Court also serves as a court of original jurisdiction in some cases. Article III of the Constitution outlines cases where the Supreme Court serves as the court of original jurisdiction. These include disputes between states, between the states and the national government, and between the U.S. government and foreign governments. Original jurisdiction means that all cases in these categories are referred directly to the Supreme Court. A federal court is also said to have “federal question” jurisdiction, which means that it hears cases that touch the Constitution or other federal laws.
Appellate Courts
An appellate court is the next level in the judicial hierarchy after a court of original jurisdiction. A person who is convicted of a federal crime or who loses a civil suit in district court can appeal to the U.S. Court of Appeals. While district courts decide liability, guilt, or innocence, appellate courts decide whether proper legal procedures were followed during the district court trial, or whether the law was properly applied by the district court judge. If the U.S. Court of Appeals concludes that errors of law were made in the trial, it may overrule the lower court or return the matter to the district court for further action, which might include a retrial.
The Supreme Court
After being argued in the U.S. Court of Appeals, cases can be further appealed to the Supreme Court. The Supreme Court may choose the cases that come before it, and most cases that are petitioned to the Court are not heard by it. If the Court rejects a case on appeal, the U.S. Court of Appeals decision stands. The Court operates on the rule of four: If four justices want to hear a case, the entire Supreme Court will hear it.
Like the U.S. Court of Appeals, the Supreme Court decides matters of law, which emphasize matters of constitutionality and statutory interpretation. While the lower appellate court is concerned with whether the law was properly applied at trial, the Supreme Court focuses on whether the law upon which the lower court’s decision was made is constitutional. Statutory interpretation occurs when the Court decides what a law means. Because of the way that the Supreme Court decides cases, we get an understanding of the Constitution’s meaning and the scope of its authority.
7.3 Selection of Federal Judges
Article II, Section 2 of the Constitution states that the president “shall have Power, by and with the Advice and Consent of the Senate [and] . . . shall appoint . . . Judges of the Supreme Court and all other Officers of the United States.” Otherwise, the Constitution is silent on matters of judicial selection or qualifications to serve on the federal bench. However, recall that the Constitution gives Congress authority over the lower courts. Judicial selection is therefore a shared power between the president and the U.S. Senate. The Framers of the Constitution wanted to ensure that both would have a role in judicial selection and that neither would be able to control the judiciary once appointments were made. At the same time, the Constitution is silent about how the Senate advises the president. Because the judiciary is a large institution with many judicial appointments to be made, the process of judicial selection is more involved than it appears.
The Nominating Process
Supreme Court Associate Justice nominee Elena Kagan at her confirmation hearing before the Senate Judiciary Committee in June 2010. The president nominates justices, and the Senate either confirms or denies their appointments following nomination hearings conducted by the Senate Judiciary Committee.
For the Supreme Court, a potential justice is identified by either a team in the Justice Department or the White House Office of Legal Counsel. In some cases, a joint committee composed of White House and Justice Department officials will identify potential nominees and screen them. A list is prepared for the president, who may opt to meet with prospective nominees. Once someone has been nominated, the FBI performs a background check, and the American Bar Association (ABA) provides an advisory evaluation. The nomination is then sent to the Senate, which refers the matter to the Senate Judiciary Committee for hearings. Hearings are then held, before which a variety of groups may testify either for or against the nomination. Although the Judiciary Committee votes first, a negative vote in the committee does not necessarily kill the nomination because the Judiciary Committee’s vote is a recommendation to the full Senate. The full Senate is responsible for confirming Supreme Court nominees.
Most Americans are familiar with high-profile confirmation hearings for Supreme Court nominees. But the president makes hundreds of other judicial appointments that usually go unnoticed. The same process is used, with modifications, for judges nominated to a U.S. Court of Appeals. At the district level, the review process almost mirrors a typical job application. Persons wanting to be district court judges contact their senators seeking appointments. As a matter of senatorial courtesy, senators will defer to one of the senators of the state where the district court is located. Senators will most likely defer to senators from their same political party. If either senator is of the same political party as the president, the president will be more likely to honor the senators’ recommendation for a judgeship, although the Senate may hold up nominations for political reasons. Like justices for the U.S. Supreme Court, district court justices must be confirmed.
Who Is Qualified to Be a Judge?
The Constitution does not establish any specific qualifications to sit on the federal bench. By tradition, judges have been lawyers, but it is not an absolute requirement that judges hold law degrees or know the law.
The Role of Judicial Experience
In recent years, though not historically, it has been common to appoint Supreme Court justices with prior judicial experience, particularly on the U.S. Courts of Appeals. As examples, Abraham Lincoln appointed his treasury secretary and rival for the presidency, Salmon Chase, to be chief justice. (In fact, it was Chase who expanded the title from Chief Justice of the Supreme Court to Chief Justice of the United States.) Franklin Roosevelt appointed several people to the Supreme Court with no prior judicial experience, including Hugo Black, Robert Jackson, Frank Murphy, and William Douglas. Black had served as a U.S. senator from Alabama, both Jackson and Murphy had been attorneys general under Roosevelt, and Douglas was a professor of law at Yale. Roosevelt also appointed Felix Frankfurter, who had been a professor of law at Harvard.
William Howard Taft served as president of the United States from 1909 to 1913 and later became the 10th chief justice of the Supreme Court, from 1921 to 1930. He is the only person to have held both offices.
Appointing justices with prior judicial experience has been quite common. In the early part of the 20th century, Chief Justice William Howard Taft was both a former state Supreme Court justice and a solicitor general, but he had also served as president of the United States, and Chief Justice Charles Evans Hughes had 20 years earlier been an associate justice on the Supreme Court. He resigned in 1916 to run as the Republican presidential candidate against Woodrow Wilson, to whom he lost.
Today, most, though not all, nominees bring a judicial background. In 2005, President George W. Bush nominated Harriet Miers, his White House counsel, who had never served as a judge and had little public sector or academic legal experience. Following intense criticism that she was not well qualified, she withdrew her name from consideration. Even more recently, President Obama appointed Elena Kagan in 2010. Kagan was serving as his solicitor general at the time. Prior to that, she had been the dean of Harvard Law School.
The Role of Ideology
One school of thought suggests that judges should be selected and evaluated based on their qualifications alone, and that ideology should play no role. But ideology has historically played a role in both the president’s selection and the Senate’s evaluation of nominees. Presidents tend to select judges who share their views, and members of the Senate either confirm or fail to confirm on the basis of ideology as well.
Law professor Erwin Chemerinsky (2003) has suggested that there are three models for evaluating and selecting judges. The first model, known as the professional qualifications model, holds that judges should be evaluated based on their credentials, such as their education, the nature of their legal practice, their prior judicial experience (if any), and anything else that would indicate their ability to serve as a judge. Consistent with this model, the American Bar Association rates judicial candidates based on their “integrity, professional competence and judicial temperament.” When the Senate Judiciary Committee takes up judicial appointments, it relies heavily on ABA ratings, even though it has no legal obligation to do so.
The second model is known as the judging skills model, whereby a candidate’s skills as a judge are examined, assuming this person has prior experience. Those who support this approach look at how a judge uses precedent (in other words, how he or she uses past court decisions as a guide for decision making), the quality of his or her written opinions, and his or her temperament on the bench. Using this approach, an issue that might arise would be whether a nominee’s previous judicial rulings were overturned by the higher court. Some might infer that a record of overturned opinions suggests poor quality or incorrect interpretation of law.
The third model is the ideological orientation model, whereby the ideological orientation of the nominee is expressly considered in the selection process. This means that one’s views on important issues, such as abortion, would be considered.
Presidents look for different qualities in a judge, but perhaps the most important qualification is that judicial candidates share the same worldview or hold a judicial philosophy shared with the president. Presidents usually consider ideology and political party when making appointments. Franklin Roosevelt, for instance, wanted judges whom he could count on to uphold the constitutionality of the New Deal, while Republican presidents Richard Nixon, Ronald Reagan, and George W. Bush wanted conservative judges. President Reagan sought justices who would, in his view, interpret the law and not make it. This meant that if a legislature wanted to allow school prayer, the judge would be willing to defer to the legislative body that passed such a law. President Bill Clinton, on the other hand, sought to appoint judges who were pro-choice on the abortion issue. This was taken to mean that Clinton wanted judges who would be ready to strike down laws as unconstitutional if they were considered to be in violation of previous Supreme Court precedents supporting abortion rights.
7.4 How the Supreme Court Operates
The Supreme Court operates according to its own rules. Generally, the justices meet to decide which cases to hear (the “rule of four,” discussed earlier). For each case that the Court hears, each side is given 30 minutes to make its argument, and during that time each justice is free to ask questions. If answering questions takes up 10 minutes, for instance, then only 20 minutes are left to argue. Lawyers are cut off when their time is up.
Writing Opinions
After hearing a case, the justices meet and vote on a ruling. The chief justice, if he or she is in the majority, usually assigns either him- or herself or another justice in the majority to write the opinion for the Court. The most senior person in the minority then assigns him- or herself or another justice in the minority to write a dissent, where this person explains the minority’s position. Members of the majority are also free to attach to the majority opinion a concurring opinion, where they express agreement with the majority opinion but use different reasons for their conclusions. Similarly, justices in the minority may write concurring dissents.
Once an opinion is written, the chief justice or a spokesperson for the Court will announce the ruling. Announcing the ruling is not a requirement of Supreme Court procedure; rather, the Court chooses to make its public position known when it releases its written opinions. A written opinion, however, is useful because it helps establish precedents that will guide future judicial decision making. Also, by writing an opinion, the Supreme Court produces a guide for the application of law by lower courts.
The Supreme Court holds hearings inside the chambers of the U.S. Supreme Court building. Tradition holds that, when the Supreme Court meets, the most recently appointed justice serves coffee to the rest of the justices.
When the Court hands down a ruling, the opinion of the majority is the official opinion of the Court. The majority opinion requires a majority of justices, usually five, which means that there can be decisions in which a significant minority disagrees. That each case has majority, dissenting, and concurring opinions demonstrates the possibility that there will be wide disagreement over the meaning of the Constitution. It also sets the stage for political battles on the Court, in Congress, and in American politics more generally.
Role of Court Staff
Law clerks make up the key staff members in the judiciary. These clerks assist judges in researching and writing opinions. Each Supreme Court justice hires three clerks for a 1-year period each. These clerks are usually recent graduates of the best law schools in the country. They do much of the research and, depending on the justice, can do much, if not all, of the drafting of the opinions. (Some justices like to write their own opinions, but others prefer to have their clerks write preliminary drafts, which they in turn will edit and adjust into final form.) The clerks’ other responsibilities include legal research, checking citations, coordination of scheduling and other legal matters with lawyers, and drafting memoranda to the justice in which they summarize the facts of the case, the arguments of each side, and suggested holdings.
The first Supreme Court justice to hire a clerk was Horace Gray in 1882. Other justices began to adopt Gray’s practice, and Congress began to appropriate funds for clerks in 1919. In 1930, Congress began to appropriate money for a law clerk position for each U.S. Courts of Appeals judge and a few years later for each district court judge.
7.5 Establishing Judicial Review and the Role of the Supreme Court
The constitutional ambiguity of the judiciary leads to numerous questions. Did the Framers mean for the Supreme Court to only offer advice? Or did they want the Court to strike down acts of Congress and actions of the president that it found to be unconstitutional? If it could strike down actions, could the Court then order Congress or the president, or even both, to desist from their actions? And if this authority existed, did it apply only to the national government, or did it extend to the states as well? These questions were articulated by Alexander Hamilton in Federalist No. 78, which suggests that the Framers were not wholly in agreement on the Court’s role in a checks and balances system.
Judicial review means that an action or a law has been evaluated to determine if it is constitutional. However, it was not initially clear that judicial review was the sole province of the Supreme Court or lower courts. Article III of the U.S. Constitution outlines the makeup and powers of the U.S. Supreme Court, the highest national court, while giving Congress the power to create all federal courts below it. The Constitution gives the Supreme Court original jurisdiction, meaning the Supreme Court is the first to hear certain cases, such as controversies between two states or cases involving ambassadors, and appellate jurisdiction, where the Court will consider appeals on cases decided by lower courts.
The Framers did not intend for the Supreme Court to be equal in power to the legislative or executive branches. After all, Court members are not elected, they serve life terms, and there are no identified qualifications for office. Alexander Hamilton wrote in Federalist No. 78 that the Supreme Court should have the power to declare acts of Congress “null and void” even though the Constitution does not establish this power for any branch of government.
The first test of the Supreme Court’s authority came in Marbury v. Madison (1803). The case revolved around a series of late-term appointments of 58 circuit court judges and justices of the peace created by the 1801 Judiciary Act. Although confirmed by the Senate, the appointments were not considered complete until the commissions were formally delivered to the appointees.
U.S. Supreme Court Justice John Marshall led the hearing in Marbury v. Madison. The ruling of the Supreme Court largely created the authority of constitutional review for the Court.
The commissions were supposed to be delivered by John Marshall, although he was unable to complete the task before Adams left office. Marshall assumed that incoming Secretary of State James Madison would deliver the remaining commissions. One of the appointees, William Marbury, did not receive his commission.
Upon taking office on March 4, 1801, President Thomas Jefferson’s staff refused to deliver Marbury’s commission on the grounds that it was not valid once Adams left office. Jefferson alleged that the appointments were an attempt to stack the courts with Federalist judges.
The 1789 Judiciary Act stated that if the administration failed to deliver a commission, the appointee could petition the Supreme Court for an order from the court (writ of mandamus). The power to issue writs of mandamus would imply that the Supreme Court had the authority to order the administration to deliver the commission. Marbury asked the Supreme Court for a writ of mandamus to compel Madison to deliver the commission.
Chief Justice John Marshall and the Court found itself between a rock and a hard place. If the Court ordered Madison to deliver the commission, he would likely refuse out of loyalty to Jefferson, which would render the Court weak and ineffective. If the Court refused to take action, it would expose itself as powerless and irrelevant. To give meaning to the concept of judicial review, the Court had to act.
In a narrow sense, the issue before the Court was whether the Supreme Court was the proper court to issue a writ of mandamus. Writing for the Court, Marshall took a balanced yet political approach. Marshall agreed that the executive branch’s actions were inappropriate, although he also understood that he could not compel Madison to deliver the commission. Marshall struck down as unconstitutional the Judiciary Act provision requiring the Supreme Court to issue writs of mandamus under these circumstances because Section 13 added to the Court’s original jurisdiction authority. In doing so, Marshall established the precedent of judicial review. In taking this position, the Court invalidated an act of Congress while avoiding a confrontation with the executive that it might have lost. Marbury v. Madison also marked an important beginning for the Supreme Court by making clear where the Supreme Court would fit into the larger separation of powers and checks and balances system.
Fletcher v. Peck (1810)
While Marbury v. Madison established the precedent for the Supreme Court to strike down actions of the national government, it did not establish whether judicial review extended to the states. The 1789 Judiciary Act made it clear that a state action, such as a law or court decision, could be “re-examined and reversed or affirmed in the Supreme Court of the United States” (Judiciary Act of 1789, 2012). Because the Judiciary Act was passed by Congress and signed into law by the president, it was the supreme law of the land under the Constitution’s Supremacy Clause.
The Supreme Court addressed extending judicial review to the states in Fletcher v. Peck in 1810. This case involved the Yazoo Land scandal in Georgia. In 1795, the Georgia legislature had sold huge tracts of public land, comprising what are now the states of Alabama and Mississippi, to private parties who in turn divided the land into smaller parcels to be sold to individuals. After the sale, it was discovered that all but one of the Georgia state legislature members had been bribed to vote for the sale. A newly elected state legislature voted to rescind the initial sale to the developer. This caused problems because the original purchasers had already sold millions of acres to presumably innocent individuals. If the initial sale was rescinded, then these people’s land titles would be revoked and they would be left with uncompensated losses.
Southeastern United States map illustrating the Yazoo-Georgia Land Controversy. Shaded areas on the map divide land ownership into regions that represent grants given to the Tennessee Company, the Virginia Company, and the South Carolina Company. In addition, the Mississippi Territory of 1798, the state of Georgia, and the disputed land between Georgia and the United States are labeled on the map. This disputed land was assigned to Georgia in 1802. The longitude and latitude lines are shown.
Johnson, Allen (1915). Union and Democracy. Cambridge, MA: Houghton Mifflin Company
The Yazoo Land Scandal was caused by land speculators who bribed Georgia state legislators to allow them to buy up tracts of land (the shaded areas on the map) and resell them to individuals at a substantial profit.
At issue for the Supreme Court was the validity of the third parties’ titles. Why should innocent individuals be punished because they bought land that had been obtained illegally? The landowners’ argument before the Court was that rescinding the original sale was a violation of the Constitution and the third-party titles were in fact legitimate. For the Court, the constitutional issue was the meaning of the Contract Clause, found in Article I, Section 10, that contracts must be respected by governments. If contracts were not respected, there would be no basis for free exchange. Ultimately, the Marshall Court ruled unanimously against the state and held that the Georgia state legislature’s attempt to rescind the sale was a violation of the Contract Clause.
By ruling in this case, the Supreme Court extended its authority of judicial review to apply to state governments. This was a critical case because it established the first clear precedent that the U.S. Supreme Court could hold state laws unconstitutional.
Political scientist Robert McCloskey (2010) argued that the Fletcher decision marked the “end of the beginning” of the Supreme Court’s struggle to find its place in the American political system. Not only had the Court claimed the power of judicial review in theory, but it had applied it in concrete cases.
Martin v. Hunter’s Lessee (1816)
In carving out its own role, the last question that needed to be addressed by the Court was whether judicial review extended to state courts in addition to state governments. Could the U.S. Supreme Court overturn both civil and criminal case decisions of state supreme courts? The Court took up this question in Martin v. Hunter’s Lessee, an 1816 civil case that concerned the Treaty of Paris negotiated by John Jay that ended the Revolutionary War.
During the war, state governments confiscated land owned by British loyalists. One such case occurred when the state of Virginia confiscated the land of Lord Fairfax, who had fled back to Britain. Virginia proceeded to grant a section of Fairfax’s land, which it claimed now belonged to the state, to David Hunter, who later sought to eject Fairfax’s heirs through the Virginia courts. However, a provision of the Treaty of Paris directed that all land titles that existed prior to the war be restored to their original owners.
In Martin v. Hunter’s Lessee (1816), Justice Joseph Story cited the preamble of the Constitution to argue that the people, regardless of which state they lived in, were sovereign and could distribute their sovereignty any way they chose.
The Virginia Court of Appeals ruled against Fairfax’s heirs. Although the head of the Virginia Court, Spencer Roane, and the other Virginia judges conceded that they were bound to observe the federal Constitution, they also maintained that the meaning of that Constitution was for them to decide, and that the U.S. Supreme Court had no power to impose its interpretation on the states. Roane’s alternative reading of the Supremacy Clause was that state judges alone were the ones to enforce it. But if each state’s interpretation of the Constitution carried equal weight with that of the U.S. Supreme Court, then what authority did the Court have? For Virginia, this was a matter of states’ rights. For the national government, it was a matter of national authority and what it meant to be a nation.
Writing the opinion for the Court against the state’s position, Justice Joseph Story pointed to the declaration of “We the people” in the preamble of the Constitution to establish that the people, regardless of which states they lived in, were sovereign, and as such they could distribute that sovereignty any way they chose.
The people expressed their sovereignty by establishing a federal constitution that made it clear that treaties would be the supreme laws of the land. Also, in establishing this Constitution, the people made it clear that Article III extended the judicial power to all cases arising under the Constitution, laws, and treaties. With Martin v. Hunter’s Lessee, the Supreme Court further extended precedent of judicial review by asserting its authority to overturn state court rulings.
Rule by Precedent
The concept of rule by precedent is known as stare decisis, which is a Latin phrase meaning “rule by decisions that were made in the past.” It can be understood as rule by example. To rule by precedent means that judges are bound by earlier court rulings, and new rulings must conform to these previous findings.
Marbury v. Madison provided the precedent that the Court looked to in both Fletcher v. Peck and Martin v. Hunter’s Lessee. The Court had to establish the principle of judicial review in Marbury before it could extend it in Fletcher and Martin. By adhering to precedent, the potential for arbitrary exercise of judicial power can be checked.
The Supreme Court and Public Opinion
Unlike Congress or the executive branch, the Supreme Court is not supposed to be a political body; it is supposed to be an interpretive institution that is removed from politics. In fact, judges are appointed to life terms rather than elected so that they will be immune to popular pressures. Although the Court’s power is derived from the Constitution, it is not absolute. The Constitution can always be amended to strip the Court of its authority, or Congress can alter the scope of its role through legislation.
What the various cases show, then, is a Court that started with little power that was concerned with establishing its identity. The Court builds its power by deciding cases that can be used as precedents in later decisions at the national and state levels, including state courts.
This point is perhaps best illustrated by President Franklin Roosevelt’s attempts to “pack” the Court in 1937. Following a string of Court decisions that struck down as unconstitutional many early New Deal measures, Roosevelt introduced a plan to add a new justice to the court for every justice who reached the age of 70 but did not retire, until the number of justices reached 15. This would help Roosevelt change the Court’s composition until it was more sympathetic to New Deal policies. His plan never attracted much support in Congress, where many viewed it as a blatant attempt to tamper with a sacred institution. Even though Roosevelt’s plan was not successful, the Supreme Court soon changed direction on several challenges to the New Deal.
Supreme Court Versus the Executive Branch
Hamilton’s suggestion that the Court lacks the power of enforcement because it does not have the power of the sword would suggest that the Court relies heavily on the executive branch to enforce its rulings. This would also suggest that the Court might shy away from confrontations with the executive branch. Marbury v. Madison was as much an attempt to avoid a confrontation with the executive as it was an effort to establish the principle and precedent of judicial review. But there have also been times when the Court has been willing to impose limits on the executive branch, especially in the area of executive privilege, which will be discussed next.
When Special Prosecutor Archibald Cox filed a motion to subpoena audio tapes and documents relating to the Watergate scandal, President Richard Nixon claimed executive privilege and tried to avoid the request.
For the most part, the Court tends not to get involved in disputes between Congress and the president, claiming that these disputes are inherently political. There have been rare occasions when courts have become involved in disputes between the two branches. Watergate is an important example of this phenomenon. It was revealed during the Watergate hearings that there were tapes of face-to-face and telephone conversations between President Richard Nixon and others in the Oval Office. The U.S. Senate Select Committee on Presidential Campaign Activities (or, the Congressional Watergate Committee) requested that the tapes be released. President Nixon refused to do so, claiming executive privilege, or the power to keep information from Congress and the U.S. Supreme Court. He then released edited transcripts of the tapes, which did not satisfy Congress. The special prosecutor, a non-government attorney appointed by Congress, investigated the Watergate affair and filed a motion to subpoena the tapes and other documents relating to conversations between President Nixon and others, but Nixon, again claiming executive privilege, responded by filing a motion to squash the subpoena. While a district court judge rejected Nixon’s motion, the order to deliver was stayed pending review by the appellate courts.
In the 1974 case United States v. Nixon, the Nixon Administration argued that the separation of powers precluded judicial review of the president’s claim of executive privilege. The Supreme Court rejected the argument, claiming,
The impediment that an absolute, unqualified privilege would place in the way of the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions would plainly conflict with the function of the courts under Article III. In designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence.
The Court then concluded that the president’s assertion of privilege on subpoenaed materials for use in criminal proceedings, based only on a generalized desire to maintain confidentiality, could not take precedence over the demands for due process of law in the fair administration of justice. The Court, in short, was making it clear that the president could not invoke privilege as a way of setting himself above the law.
7.6 The Supreme Court’s Place in the Federal Separation of Powers
What Is the Duty of a Supreme Court Justice?
The role of the Supreme Court and its justices is to determine constitutionality of law, whether it is through judicial restraint or activism. Justices often rule on cases despite public opinion, and there is often a tug of war between legislative and judicial authority, state rights and federal rights, and minority and majority rule.
The undefined role of the Supreme Court has meant that its place in the separation of powers framework has been ambiguous. If Hamilton’s observation that it possesses neither the power of the purse nor the power of the sword is any guide, then the Court’s relationship to the other branches has to be one of restraint. At a minimum, in a standoff between the national government and any other party, it must, as a national institution itself, maintain the integrity of the national government. This suggests that most case decisions will favor the national government. Also, because the Supreme Court must rely on the other branches of government to respect its decisions, it rarely invalidated acts of Congress or the executive during the early years of the republic.
Federal Authority and the Limits to State Authority
Until the 1860s, many U.S. Supreme Court cases revolved around the relationship between the states and the national government. Specifically at issue were the limits of state authority and the scope of national authority. If the Supreme Court was reluctant to invalidate actions of the national government, it was all too willing to invalidate actions of the states to limit them and to assert national authority.
One of the earliest disputes at the heart of this tension was the 1819 case of McCulloch v. Maryland. At issue was the creation of a national bank and whether a state was required to recognize its legitimacy. In 1816, Congress passed a law establishing a national bank. Although the Constitution does not give Congress the express power to establish a bank, Congress did so on the basis of the Necessary and Proper Clause:
Congress is not empowered by it to make all laws which may have relation to the powers conferred on the Government, but such only as may be “necessary and proper” for carrying them into execution. The word “necessary” is considered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted powers to such as are indispensable.
In 1818, the state of Maryland passed a law imposing a tax on all banks or branches of banks in the state that were not chartered by the state legislature. The national bank’s cashier, James McCulloch, refused to pay the tax on the grounds that states could not tax federal property.
This case provided Chief Justice John Marshall an opportunity to clearly establish the limits to state authority established by the Supremacy Clause found in Article VI. In his opinion in McCulloch v. Maryland, he wrote,
[T]hat the power of taxing it by the states may be exercised so as to destroy it, is too obvious to be denied. . . . [T]he sovereignty of the state, in the article of taxation itself, is subordinate to and may be controlled by the constitution of the United States.
In other words, state authority was limited at the point at which it would violate the constitutional authority of national institutions that the states agreed to support through ratification. In establishing the constitutionality of the bank’s incorporation, Marshall also put forth a classic statement of the doctrine of national authority. He again asserted that the Constitution was the product of a sovereign people, as Story had made clear in Martin v. Hunter’s Lessee a few years earlier. Now, Marshall reinforced the notion that it was the people in their creation of this Constitution who made the national government supreme over all others (the states) within the sphere of its authority.
As Marshall saw it, the issue in this case and in many others like it prior to the Civil War was the integrity of the federal system. If states could do what they wanted and the federal government was rendered powerless as a result, that would mean that the Supreme Court, too, would be powerless.
The case of Gibbons v. Ogden (1824) was about New York’s exclusive contracts for steamship operations and whether Congress’s power to regulate commerce trumped a state’s right to protect its own industries.
In the 1824 case Gibbons v. Ogden, the question arose as to whether Congress’s commerce power trumped a state’s right to protect its own industry. The case revolved around New York granting exclusive privilege to Robert Livingston and Robert Fulton to operate steamboats on all waters within New York. Other states enacted similar laws, and the result was friction between the states as each required out-of-state boats to pay substantial fees to be admitted into their waters.
When a state regulates commerce among several states, it tramples on a power reserved specifically for the national Congress. If New York’s laws, or those of any other state, interfere with that authority, then those laws are unconstitutional. Cases like this established a stronger role for the U.S. Supreme Court
Marbury to Dred Scott
Between the 1803 Marbury v. Madison case and the Dred Scott decision in 1857, the Supreme Court did not invalidate a single act of Congress. That changed with Dred Scott, the case that would pave the way to the Civil War.
Dred Scott was an African American slave who was taken by his master, a U.S. Army officer, from the slave state of Missouri into the free state of Illinois and then to the free territory of Wisconsin. When the army ordered his master back to Missouri, Scott was taken back as well. After his master died, Scott, with the assistance of abolitionists, sued for his freedom on the grounds that he had for a long period of time lived on free soil.
The Court under Chief Justice Roger B. Taney, a staunch states’ rights advocate, ruled that the 1820 Missouri Compromise, which banned slavery in the territories north of the parallel 36°30', was unconstitutional. The Court determined that Congress did not have the power to enact a law that would establish certain states as free territories. Rather, the power of Congress to acquire territories and create governments in those territories was limited. The Court asserted that the Fifth Amendment to the Constitution prohibited states from passing any laws that would deprive slaveholders of their property, such as slaves, because those slaves were brought into free territory. The Court went on to assert that territorial legislatures had no authority to ban slavery and that neither slaves “nor their descendants, were embraced in any of the other provisions of the Constitution” that protected non-citizens (Dred Scott v. Sandford, 1857). In other words, the Court said that it was the Framers’ intent that people of African descent who were imported into the country as slaves or were descended from imported slaves could never be citizens of the United States and therefore were not entitled to the Constitution’s protections.
In Dred Scott v. Sandford (1857), the U.S. Supreme Court ruled that the Framers intended that people of African descent who were imported or descended from slaves could never be citizens of the United States and were not entitled to any constitutional protections. The plaintiff, Dred Scott, is pictured on the left. Chief Justice Roger B. Taney, right, wrote in the majority opinion that the 1820 Missouri Compromise, which banned slavery in territories north of the parallel 36°30', was unconstitutional.
The decision fueled abolitionists’ passions to end slavery and helped strengthen their call for war. Because siding with the national government against the states was, in effect, a vote for the integrity of the United States as a nation, it was really an attempt to establish the idea that the national government had authority over the states. The Civil War ended up settling militarily what the Court had been trying to establish judicially. By demonstrating that states would not be allowed to secede from the union, the war confirmed that national authority trumped states’ rights.
7.7 Judicial Review and Judicial Restraint
When judges strike down an act of a legislative body as unconstitutional, they overturn the will of the people as expressed through the people’s elected representatives. The fact that judges are appointed to life terms means that they do not have to answer directly to the people; it may also represent a challenge to a democratic society. Given these factors, how strong a role should the Court play in determining policy?
Judicial Restraint
When a court takes the view that it should not invalidate acts of a legislature, it is practicing judicial restraint. Legal scholar Alexander Bickel (1986) expressed that the role of judges is to interpret the law and not to make it. He viewed the judicial philosophy of restraint as one where judges defer to the will of legislative bodies. A court that strikes down an act of a legislative body as unconstitutional is, in effect, making law.
Judicial Activism
When a court takes the view that it should strike down legislative acts that violate the rights of individuals, the court is practicing judicial activism.
Judicial activism argues that judges protect individual rights and liberties. When legislative bodies violate these liberties, judges are obligated to strike down those actions as constitutional violations. A democratic majority does not trump individual rights, the reasoning goes; rather, the purpose of the Constitution in the first place is to protect individuals from the arbitrary actions of legislative bodies. Activist judges maintain that a law cannot be considered constitutional if it violates basic individual rights or the spirit of the Constitution.
Griswold v. Connecticut (1965)
Consider the following example: Connecticut had a law enacted in 1879 prohibiting the use of “any drug, medicinal article or instrument for the purpose of preventing conception” until this law was ruled unconstitutional in Griswold v. Connecticut in 1965. While the law was rarely, if ever, enforced, the Griswold case was instigated by a Planned Parenthood chapter in concert with a Yale School of Medicine faculty member who wanted to expose the law as absurd and make the argument that contraceptive use was not subject to government oversight.
Estelle Griswold, the executive director of Planned Parenthood of New Haven, Connecticut, and Dr. Lee Buxton of the Yale School of Medicine opened up a birth control clinic in New Haven, Connecticut, to test the law. They were duly arrested, tried, found guilty, and fined $100 each. Their convictions were upheld by both the appellate division of the circuit court and the Connecticut Supreme Court. While the U.S. Constitution makes no mention of privacy rights, the Court asserted that such a right existed in what it referred to as the penumbra, or spirit, of the Constitution. The Court argued that the concept of a penumbra is found in the Ninth Amendment, which states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In essence, the Ninth Amendment states that rights not specifically listed, or enumerated, in the Constitution are consistent with the spirit of the Constitution and are not denied to individuals just because they are not specifically identified in it. The Court held that Connecticut’s law banning contraception was a violation of the right to privacy.
Judicial restraintists might argue that if the people want to ban contraception, it is their democratic right to do so, especially when the law does not violate an express provision of the Constitution. A judge practicing judicial restraint will defer to the legislative body that passed that law on the grounds that the legislature was democratically elected and is thus expressing the will of the people.
Activism Versus Restraint in Modern Politics
Much of contemporary American politics revolves around just what the role of the Supreme Court should be. People who do not like a particular decision may accuse the Court of activism and complain about it having too many “activist judges.” Those who are satisfied with a ruling where the Court overturns legislation even though it may be offensive to others may express their admiration for the Court’s restraint. On one level, the debate between activism and restraint has been a debate over judicial philosophy and how to approach the Constitution. On another level, it speaks to a fundamental tension in American politics between groups that seek to change policies that they disagree with through the courts and groups that want the courts to take a minimal role in policy decisions.
In contemporary American politics, conservatives typically label courts that have asserted rights to privacy, rights of the accused, and other decisions contrary to their ideological views as activist. Liberals who cheer these decisions as being necessary to create a more open, equal, and inclusive society only 100 years ago accused the Court of activism when it upheld the property rights of corporations against the interests of workers. In essence, critics of judicial activism argue that judges overstep their bounds by effectively making law through case decisions, thereby taking this right away from elected legislatures.
