Obrien Exam 3

25th amendment

- Vice President becomes President in the event of a President's death or impeachment
- If something happens to the Vice President, the President can appoint a new Vice President with Congressional approval

Presidential Requirements

- 35 years old
- live in the US for 14 years
- natural born citizen

Cabinet

- the group of 15 executive department heads who implement the president's agenda in their respective positions
- appointed by the president and confirmed by the senate

Chief of Staff

- The senior staff officer of a service or command
- part of the hierarchical model
- reports directly to the president (quality of chief's performance can impact the president's image)
- Currently Denis McDonough

Commander in chief

- The role of the president as supreme commander of the military forces of the United States and of the state National Guard units when they are called into federal service

Constitutional authority

- Powers derived from the provisions of the constitution that outline the president's role in government
- Formal powers

Formal Powers of the President

- Chief executive of federal bureaucracy
- Nominate and appoint key officials
- Implement and enforce laws
- Veto bills
- Negotiate treaties
- Recognize foreign nations (diplomatic recognition)
- Commander in Chief
- Chief of State
- pardon or grant clemency
- Power to convene congress
- Ensure laws are faithfully executed

Constructionist

- Believes that if the constitution does not say it or if Congress does not give it, then the President does not have the power or authority to do it.
- William Howard Taft

Stewardship

- President practices a governing style based on the belief that they have the duty to do whatever is necessary in national interest, unless prohibited by the Constitution.
- Teddy Roosevelt

Executive agreement

- Agreement between the executive branch and a foreign government, which acts as a treaty but does not require Congressional approval
- Cannot extend beyond US law
- The next President doesn't have to follow it
- Clinton agreed to the Kyoto Protocol, but Bush ignored it

Executive Office of the President (EOP)

- The group of policy-related offices that serves as support staff to the President
- Helps the president's party achieve their policy goals and get reelected
- Plouffe and Axelrod made sure that Obama's administration did not hinder his chance of getting reelected
- not subject to confirmation by the senate
- primary expectation is loyalty instead of expertise

Executive orders

- Proclamations made by the president that change government policy without congressional approval
- After Sandy Hook, Obama ordered the release of a study that showed how many stolen handguns were subsequently used in crimes
- Could not restrict armor piercing rounds or the size of handgun magazines (how many bullets the gun can hold)

Executive privilege

- The right of the president to keep executive branch conversations and correspondence confidential from legislative and judicial branches
- State secrets privilege: President's right to withhold info from the public and other branches for national security
- Obama didn't tell congress about the Bin Laden attack until after
- Nixon attempted to use this to cover up Watergate

Informal powers of the president

- Not outlined in the constitution
- Propose annual budget
- Develop policies that promote peace and prosperity (Doctrines i.e. Monroe Doctrine)
- National morale builder
- International peace maker
- Public opinion leader
- Party leader

Head of Government

- The president has authority over the executive branch
- "The executive power shall be vested in the President of the United States of America"

Head of State

- The president represents the country symbolically and politically

Imperial Presidency

- The idea that the president is acting like a king or a monarch

Institutional Presidency

- The concept of the presidency as a working collectivity, a massive network of staff, analysts, and advisers with the president as its head; either Ad Hoc or Circular
- Organization depends on the president
- Ad Hoc: informal groups of "friends" and "buddies" that report directly to the president (can create chaos)
- Circular: Cabinet secretaries and assistants do not report directly to president; instead they report reluctantly to the Chief of Staff, so the president can't get overwhelmed

Pocket veto

- An indirect veto of a legislative bill by the president or a governor by retaining the bill unsigned until it is too late for it to be dealt with during the legislative session
- Congress adjourns before the ten days for the president to sign or veto has expired, so the bill is automatically vetoed

Basic Criteria for president

- Single Presidency
- Selection neither by people or Congress (Electoral college)
- Fixed Term
- Only removed by impeachment
- Veto power
- Has constitutional and statutory authority
- Not required to have an advisory council

Presidential Succession act of 1947

- Sets the current line up for who becomes president after the president dies
- President --> Vice President --> Speaker of the House --> Pro tempore --> Secretary of State --> Secretary of Treasury --> Secretary of Defense

Recess appointment

- Selection by the president of a person to be an ambassador or the head of a department while the senate is not in session
- temporarily bypasses the requirement for Senate approval
- Only survive until the end of the congressional term unless approved by a subsequent senate vote

Signing statement

- A document issued by the president when signing a bill into law explaining his or her interpretation of the law
- Often differs from the interpretation of Congress
- Attempts to influence how the law will be implemented and to influence any judicial decisions regarding the law by presenting another point of view

Statutory authority

- Powers derived from laws enacted by Congress that add to the powers given to the President by the Constitution

Take care clause

- The president must make sure that laws are faithfully executed
- almost always used as a reason of impeachment (when Congress is trying to impeach)
- Is the President executing the laws in a manner similar to the way congress meant for them to be implemented
- President can't just ignore the implementation of laws he/she doesn't like

Treaty

- Formal power
- A formally concluded and ratified agreement between countries
- Must be ratified by the Senate
- Can go beyond US Law
- Carries onto the next president

Two Presidencies thesis

- There is an international president (international power), and a domestic president (goes through Congress to create laws)
- Claims that modern presidents fare much better with Congress on their foreign policy agenda than on domestic policy
- Foreign power is nearly unlimited
- Domestic power is limited by the Constitution

Unitary Executive

- A theory of American constitutional law holding that the President possesses the power to control the entire executive branch
- Power concentration is inevitable

Veto

- The power of the president to reject a bill proposed by a legislature by refusing to sign it into law
- Congress may override a presidential veto with 2/3 vote in the House and in the Senate

Vice President

- Has limited official duties (Oversees the senate, but he usually passes this off and it ends up with a junior member)
- despite his lack of official duties, Vice presidents have recently been influential
- Used to balance ticket, but not always trusted
- Member of the National Security Council

War Powers Act

- Passed in 1973 over Nixon's veto
- The president is required to notify congress of any introduction of US forces into hostilities
- Use of force must be terminated in 60 days unless congress approves, BUT the President may have 90 days to remove troops if it is necessary for their safety
- President is required to consult with congress before introducing US forces to hostilities whenever possible
- Congressional resolution approving continued US deployment is considered under expedited procedures

Bureaucracy

- System of civil servants and political appointees who implement congressional or presidential decisions
- known as the administrative state
- Considered the 4th branch of government
- A complex structure of offices, tasks, and rules where employees have specific responsibilities and work within a hierarchy of authority

Bureaucrat

- A career government employee

Bureaucratic drift

- Bureaucrat's tendencies to implement policies in a way that favors their own political objectives rather than following the original intention of the legislation
- Bureaucrat's know more than Congress, but Congress has to regulate/ provide standard operating systems to prevent Bureaucrats from corrupting

Central clearance

- Review of all executive branch testimony, reports, and draft legislation by the office of management and budget to ensure that each communication to Congress is in accordance with the president's program
- OMB review of all executive branch testimony, reports, and draft legislation by the office of management and budget to ensure that each communication to Congress is in accordance with the president's program

Civil Servants

- Employees of the bureaucratic agencies within the government
- Are employed based on qualifications and a test
- very hard to fire
- receive different pay depending on work/qualifications
- Cannot be hired/fired for political reasons, but loyalty to the president is a good trait

Civil service system

- A system or method of appointing government employees on the basis of competitive examinations, rather than by political patronage
- Strict set of requirements for hiring someone that limits managerial discretion

Fire alarm oversight

- A method of oversight in which Congress responds to complaints about the bureaucracy or problems of implementation only as they arise instead of exercising constant vigilance
- People/bloggers/News report complaints
- News article brought up that pensions take a long time because the bureaucracy hand calculates values in a basement

Garfield Assassination

- Guiteau wanted a government job but he didn't get it so he shot the president for attention
- Guiteau was sentenced to hang, but denied killing Garfield
- Garfield died because of infection due to surgeons trying to locate/ remove the bullet
- Public reaction to his death prompted Congress to pass the Civil Service Reform Act in 1883 (Which got rid of the spoils system except in the case of cabinet/appointees)

Hatch Act

- Government employees are not allowed to try to influence how people vote
- prohibited federal employees from engaging in organized political activities
- employees couldn't work for candidates or political parties
- Later modified
- Dave Walker (bureacrat) announcing his possible run for governor using government e-mail addresses was a possible violation

Job of the Buraucracy

- Enforce the laws and regulations implemented by Congress and the President
- Implementation, Administration, and Regulation
- Handles the day to day business of the government

Merit System

- The process of promoting and hiring government employees based on their ability to perform a job, rather than on their political connections. It is the opposite of the spoils system.

Office of Management and Budget

- Provides Central Clearance
- Creates the President's budget report for Congress every year
- Largest office within the EOP
- Reviews proposed rules
- Performs other budget related tasks

Independent Regulatory Commisions

- Government offices and organizations that provide government services and are not a part of an executive department
- Protected from government intervention
-SEC regulates economy and determines where free market will or won't work properly to protect public interests
- Do not get civil service benefits, so may be fired whenever

Corporations (Bureaucratic)

- Like private companies within the bureaucracy
- Perform tasks that the private industry wouldn't perform in the same manner
- Quasi government: government is involved, but does not directly control
- President appoints the head
- The Post office delivers a letter for the same price anywhere in the U.S.

Independent executive agencies

- Report directly to the President instead of the cabinet

Departments

- Agencies of the federal government responsible for carrying out laws, administering programs, and making regulations in their particular area of responsibility
- include bureaus and Agencies

Foundations

- Organizations protected from political influence
- National Science foundation

Oversight

- Congressional efforts to make sure laws are implemented correctly by the bureaucracy after they have been passed

Patronage/ Spoils system

- The practice in which a political party, after winning an election, gives government jobs to its supporters, friends and relatives as a reward for working toward its victory
- Instigated by Andrew Jackson
- Mostly stopped by the Pendelton Act except for political appointees

Police patrol oversight

- A method of oversight in which Congress constantly monitors the bureaucracy to make sure that laws are implemented correctly

Pendleton Act

- Also known as Civil Service Reform Act in 1883
- Put into effect after the assassination of Garfield
- Positions in government should be awarded based on merit
- Take a test that places you in a government job

Political appointees

- People selected by the president to hold government positions

How congress controls bureacracies

- Power of purse: Congress sets the budget
- Oversight (usually fire alarm because policing is expensive and bureacracies usually behave)
- Mandatory reports
- Government Accountability Office (GAO): audits government spending and opporations
- Inspectors General

How the president controls bureacracies

- reorganization (with congressional approval)
- appointment
- budget
- Senior Executive Services: link between appointees and civil service employees

How the judicial branch controls bureacracies

- Rulings on lawsuits

Privatization

- transferring the management of a service or activity from the government to the private sector

Red Tape

- When rules and regulations seem more complicated and excessive than necessary
- Excessive or unnecessarily complex regulations imposed by the bureacracy

Rule making

- the process that executive and independent agencies use to create, or promulgate, regulations
- legislative branch passes policy mandates, and bureaucracies create more detailed regulations

Senior Executive Service

- A position classification in the civil service of the United States federal government, established by Congress in 1978 as a flexible, mobile corps of senior career executives who work closely with presidential appointees to manage government
- More for managerial purposes than for expertise in their departments
- Are not protected by the civil service system (can be fired)

Street level bureacrat

- Agency employees who directly provide services to the public, such as those who provide job-training services.
- Policeman, fireman, DPS
- Lowest level bureaucrat. Interacts with people daily

What Do bureaucrats do?

- Implements law and policies made by elected officials using their expertise
- Some laws and policies are strict and do not require interpretations, others involve the interpretation of policies by the bureaucrats and their expertise

Amicus curiae

- "Friend of the Court"
- Refers to an interested person or group who shares relevant information about the case to help the Court reach a decision
- An impartial adviser, often voluntary, to a court of law in a particular case

Appellate Court

- The intermediate level of federal (and state) courts that hear appeals from district courts
- Any court with appellate jurisdiction
- Often 3-5 judges
- no jury
- don't take testimony or get new evidence
- Check to see if rights were violated in the original case (i.e. right to a competent attorney)
- Do not determine guilt or innocence
- "Based on info... we decide that ___ rights were violated" and send it back down

Appellate jurisdiction

- The authority of a court to hear appeals from lower courts and to change or uphold the decision
- Rulings in federal appellate courts only apply to the district in which they were issued

Legislative checks and balances on judicial power

- Congress can create lower courts
- Senate can reject nominees to federal/Supreme Court
- Congress can amend the Constitution to overturn rulings of the Supreme court
- Congress can impeach judges and remove them from the bench

Executive checks and balances on judicial power

- nominates judges to the supreme court
- nominates judges to the federal courts
- President can pardon individuals convicted of crimes (not including impeached presidents that were impeached and convicted)
- can grant amnesty forgiving a class of crime

Civil case

- Non-criminal cases
- usually involve receiving something of value like money or property or rights
- compensatory: receive money that was lost (broke my fence, fix my fence)
- punitive: emotional damage (broke my fence, dog ran away and died... now I hurt)

Criminal Case

- Someone has broken a law
- The prosecutor for the state or feds brings the case
- jury decides guilt or innocence and judge deals out punishment accordingly

Class action suit

- a lot of people are affected by the same thing and are impacted by a problem
- instead of each individual suing, people sue as a big group
- Ruling binds to all equally
- A case brought up by a group of individuals on behalf of themselves and others in the general public who are in the same circumstances

Common law

- Law based on the precedent of previous court rulings rather than on legislation
- Used in all of the federal courts and 49 of the 50 state courts (Louisiana has to be special)
- A system of jurisprudence in which the judiciary has the authority to determine how the law is to be interpreted

Constitutional Courts

- Federal courts created by Congress under Article III of the Constitution, including the district courts, courts of appeals, & specialized courts such as the U.S. Court of International Trade.
- Deal primarily with constitutional law.
- Main authority is to rule on whether laws that are challenged are in fact unconstitutional, i.e., whether they conflict with constitutionally established rights and freedoms.

Constitutional interpretation

- The process of determining whether a piece of legislation or governmental action is supported by the Constitution
- The process by which meanings are assigned to words in a constitution, to enable legal decisions to be made that are justified by it

Court system

- System of courts that interprets and applies the law in the name of the state
- The judiciary also provides a mechanism for the resolution of disputes

District Court

- Lower-level trial courts of the federal judicial system that handle most U.S. federal cases
- criminal division: traffic ticket or small crime
- civil divisions: amount in controversy is less than $5,000
- small claim: same cases as civil division, but no lawyers are allowed

Court of appeals

- A court to which appeals are taken
- Can be federal or state

Supreme Court

- Highest court in a particular state or in the US
- This court primarily serves an appellate function
- Most cases come from the Court of Appeals.

Dual system

- State court system and federal court system are separate
- EXCEPT for the Supreme Court
- both federal and state courts act are not directly controlled by the other branches of government

In forma pauperis

- "In the form of a pauper"
- Someone who is without the funds to pursue the normal costs of a lawsuit or criminal defense
- You're too broke to send a case to the court, so a court will pay to have the case sent to them
- you're broke and/or in prison
- a majority of people who file lack finances

Judicial activism

- The idea that the Supreme Court should assert its interpretation of the law even if it overrules the elected executive and legislative branches of government
- Going beyond strict role and reversing decisions
- Judges shape judicial doctrine to conform with their personal view of Constitution and social policy
- being based on personal or political considerations rather than on existing law

Judicial restraint

- The idea that the Supreme Court should defer to the democratically elected executive and legislative branches of the government rather than contradicting existing law
- Unless someone is clearly violating the constitution, they allow decisions from other branches to stand

Judicial Review

- Established by Marbury v. Madison
- The Supreme Court's power to strike down a law or an executive branch action that it finds unconstitutional
- Not clear in Article III

Judiciary Act of 1789

- The law in which Congress laid out the organization of the federal judiciary (District, Circuit, Supreme)
- refined and clarified federal court jurisdiction and set the original number of justices to 6
- Created the office of attorney general
- established lower federal courts
- Congress spends most of the 2nd half of its first session deliberating and giving substance to the federal judiciary

Jurisdiction

- The sphere of a court's legal authority to hear and decide cases

Living Constituion

- A way of interpreting the Constitution that takes into evolving national attitudes and circumstances rather than the text alone

Marbury v Madison

- Formed the basis for the exercise of Judicial review under Article III
- Marbury was appointed justice of the peace by Adams, but his commission was not delivered, Marbury wanted the courts to force Madison to deliver the documents
- Marshall's court declared Madison's actions illegal and correctible
- Denied the petition though because bringing this case before the court violated the original jurisdiction of the Supreme Court established in Article III

Marshall Court

- Put the "teeth" in the judicial review (Respect and Power)
- established Necessary and Proper with McCulloch v Maryland
- Marshall was the fourth chief justice of the U.S.
- Discontinued seriatim (every justice gives opinion, majority wins) of the British Courts

Majority Opinion

- Core decision of the Court
- Must be agreed upon by five justices
- Presents the legal reasoning for the court's opinion
- If the Chief justice is in the majority, he decides who write the opinion, if not, the most senior member in the majority opinion decides

Concurring Opinion

- Agrees with majority opinion but for a different reason
- Usually the justice agrees, but wants to add something
- Special Concurrence means the justice disagrees with the Court's reasoning
- justice may sign majority opinion but write a separate concurring opinion

Plurality Opinion

- Occurs when a majority cannot agree on the legal reasoning in a case
- the opinion that has the most agreements
- because they are fractured, these opinions don't have as much clout as the majority opinions

Dissenting Opinion

- Submitted by a justice who disagrees with the outcome of the case
- Other justices may sign a dissenting opinion and/or write their own
- there can be as many as four dissents

Original jurisdiction

- The authority of a court to handle a case first
- Supreme Court has original jurisdiction of disputes between two states
- Supreme Court may also assign such cases to lower courts

Original intention

- interpret the constitution in a way consistent with what the framers meant instead of a way that meshes with 2016

Per curiam opinion

- "by the court"
- opinion of the court or a decision written by the entire court
- not the same as a unanimous decision that is signed by the entire court
- typically very short opinions on non controversial issues
- Example: Bush v Gore

Plea bargaining

- agreement between a plaintiff and a defendant to settle a case before it goes to trial or before a verdict is reached
- in a civil case it usually involves an admission of guilt (though not always) and an agreement on monetary damages
- in a criminal case it often involves an admission of guilt for reduced charges or sentence

Power of the Supreme court

- all cases arising under the Constitution and laws or treaties of the U.S.
- all cases of admiralty or maritime jurisdiction
- Cases in which the U.S. is a party
- Controversies between states and citizens of another state
- Controversies between two or more states
- Controversies between citizens of different states
- Controversies between citizens of the same state claiming lands under grants in different states
- Controversies between a stat, or the citizens of it, and foreign states or citizens of it
- All cases affecting ambassadors or other public ministers
- Declares laws and presidential acts unconstitutional
- Chief justice presides over the impeachment of the president
- Prevents executive action through injunction

Precedents

- a legal norm established in court cases that is then applied to future cases dealing with the same legal questions

Rule of four

- If four justices agree to petition from the lower court loser, the case from the lower court will get full hearing in Supreme Court
- A Supreme Court of the United States practice that permits four of the nine justices to grant a writ of certiorari
- Prevents a majority from controlling the Court's docket

Senatorial Courtesy

- A norm in the nomination of district judges in which the president consults with his party's senators from the relevant state in choosing the nominee

Solicitor General

- a presidential appointee in the justice department who conducts all litigation on behalf of the federal government before the Supreme Court and supervises litigation in federal appellate courts