Bureaucracy and Judicial gov

What is Bureaucracy?

Bureaucracy is a fairly recent term, first coined by Max Weber to describe organizations with:

– Division of labor

– Job specialization

– Hiring based on competency

– Vertical chain of command

– Standard operating procedures

What is Bureaucracy?

Probably a better definition nowadays is that bureaucracy consists of the many departments, agencies, boards, commissions, corporations, organizations and committees in the executive branch

• It helps the executive branch carry out the laws and day-to-day functions of the government in order to maintain order and safety.

Different Types of Bureaucrats

• Civil servants

– Created with 1978 Civil Service Reform Act

– Merit-based and representative system

– Equal opportunity, political neutrality and job protection are characteristics of the merit-based civil

service system

• Unionized Civil Servants

– A little over a quarter of civil servants are unionized

– Usually unionized with the American Federation of Governmental Employees (AFGE)

Different Types of Bureaucrats

• Senior Executive Service (SES)

– Exist somewhere between civil servants and political appointees

– Usually hired up through the civil service ranks

– “Tenured” but are often relocated

• State, local and shadow bureaucrats

– Shadow bureaucrats are employees on the payroll of private businesses and organizations with government contracts

– These types of bureaucrats often work for federal government through contracting-out and devolution

How Has Bureaucracy Grown?

• 1789—50 federal governmental employees

• 2014—2,711,000 federal employees (minus the military)

• This is actually down in numbers from the 1960s

• But the states and local bureaucracies now employ around 20 million people, and the shadow bureaucracy is possibly as large as 15 million people

Departments and Agencies

• There are 5 components of Federal Bureaucracy:

–Cabinet departments

–Independent Administrative Agencies

–Independent Regulatory Commissions

–Government Corporations

–Executive Office

•Bonus component: Hybrids

Cabinet Departments

• 15 departments which serve as the major service organizations of federal government

– State, Treasury, Defense, Justice, Interior, Agriculture, Commerce, Labor, HHS, HUD, Transportation, Energy, Education, Veterans Affairs, Homeland Security

• Political appointments (Secretaries) at the top are directly accountable to the president

– However, staff under secretaries are permanent employees who may resist change

Independent Administrative Agencies

Have narrowly-defined functions

• Not located within any cabinet department, but report directly to the President (though in different ways)

– This gives it some independence from a possibly hostile department

– Fixed-term hiring fosters independence

– Smithsonian, National Science Foundation, Office of Personnel Management, NASA

Independent Regulatory Commissions

• Develops standards of behavior and monitors compliance with these standards

– Economic regulations

– Social regulations

• Exist outside of cabinet departments with bipartisan boards with presidential nomination and Senate confirmation

• Federal Reserve Board, Equal Employment Opportunity Commission, Nuclear Regulatory Commission

Government Corporations

• These sell a product and are expected to be economically self-sufficient

• Independent structure

• Headed by a bipartisan board appointed by the president

• US Post Office, Gallaudet University, National Fish and Wildlife Foundation, Americorps, Federal Prison Industries, many financial corporations

Executive Office of the President

• The EOP was created under FDR to assist the

president in managing the Executive Branch

• Top officials are presidential appointees

• Consists of dozens of offices and councils

Hybrids

• From time to time there are bureaucratic arms that do not fit into these classification and are a mix of two or more

Neutrality

• The bureaucracy is designed to be politically neutral

– Politics-administration dichotomy

• But, it is much more complicated than that because bureaucrats are involved in

– agenda setting

– policy formation and approval

– Allocation

– policy implementation and evaluation

The Iron Triangle

• The bureaucracy is a routine factor in collaborative work with politicians and

interest groups

Issue Networks

Relationships between the bureaucracy, the politicians and interest groups is not as stable as in the Iron Triangle. They are more event and issue driven and players can change more freely.

Accountability

Accountability to the people through sunshine laws and freedom of information principles

• Lawsuits and court actions

• Congress creates, regulates and funds the bureaucracy and can use the sunset clause

• Internal accountability comes through inspectors general and whistleblowers

Getting Set Up: The 1789 Judiciary Act

• Article III of the Constitution’s pretty vague

– Sets up the Supreme Court and “inferior

Courts” we may need from “time to time”

• The 1789 Judiciary Act creates the first system

– Supreme Court (original and appellate)

– 13 district courts (original)

– 3 circuit courts (original)

• This is in addition to any state courts, meaning we have a dual court system

Getting Set Up: Original and Appellate

• Original jurisdiction refers to the authority to hear new cases

• Appellate jurisdiction is the authority to review decisions reached previously by other courts

Getting Set Up: Judicial Review (1803)

• Judicial Review is the power of the courts to determine the

constitutionality of laws and government actions

• This power is not specifically mentioned in the Constitution. It was established by John Marshall in Marbury v. Madison in 1803

Getting Set Up: Standing

• A person must “have standing”

• Must have sustained an injury or are in immediate danger of:

– an injury

– loss of money

– loss of property

– loss of freedom or rights

• Injuries or harm must be substantial.

• If you do not “have standing,” the case is thrown out.

Getting Set Up: The 1891 Judiciary Act

• Created the (Circuit) Courts of Appeal (appellate)

– Based on 9 geographic units

– Handles less serious cases than the Supreme Court

• Congress abolished the really old version of the circuit courts a few years later

Jurisdiction

• Whether something is under federal law or not is determined by whether it is a federal question or whether there is diversity of citizenship.

• If there is a question between local, state and federal laws, the federal law almost always takes precedence

The Judicial System

• The federal court system has 3 tiers:

– U.S. District Courts

– U.S. Courts of Appeals and U.S. Special Courts

– U.S. Supreme Court

U.S. District Courts

• These are trial courts with original jurisdiction

• There are 94 of them with 678 judge positions

• There is an option of a judge or jury trial

• There is the right to appeal a decision

U.S. Courts of Appeals

• There are 13 of them with 179 judge positions

– 12 that cover geographical areas (circuits)

– One that covers the Federal Circuit with issue- based jurisdiction on

international trade, government contracts and patents, etc.

U.S. Courts of Appeals

• Appellate jurisdiction

• Judges work in teams of 3 to review cases

• They have mandatory jurisdiction

U.S. Special Courts

• These are specialized courts, including:

– U.S. Bankruptcy Court

– U.S. Tax Court

– U.S. Court of Military Appeals

– U.S. Court of Veterans’ Appeals

– Foreign Intelligence Surveillance Act

(FISA) Courts

• These judges have term limits

U.S. Supreme Court

• There is only one, with 9 justices

• It has limited original and appellate jurisdiction

• The jurisdiction is discretionary

• Periods of Supreme Court history are usually designated by who is the Chief Justice at the time (who is specially selected by the President)

You too can become a Judge!

• The President has the authority to nominate federal judges and SC Justices

– district courts, courts of appeals and the Supreme Court

• The Senate has a check on this process

– This includes senatorial courtesy

• The judges can serve until they retire or die “during good behavior.”

• Judges and Justices are evaluated on:

– Judicial Competence

• Harriet Miers

– Ideology

• Harry Blackmun

– Representation

• Descriptive, substantive and symbolic forms of representation

– Political Considerations

The Supreme Court’s Cases

• The vast majority are appellate

• The original jurisdiction cases were originally limited to only those that concern two or more states, ambassadors, public ministers and consuls

• Now they only deal with cases involving two or more states

The Supreme Court’s Cases

• The cases are submitted to the court as certiorari petitions

– There are 7,000 a year, about 100 get chosen

– A few of these will never receive a final decision

The Supreme Court’s Cases

• Teams of Supreme Court Clerks choose the best certiorari petitions and write a pool memo for the Justices

• The Chief Justice (with the others) makes a discuss list of cases to potentially hear

• On Fridays, they discuss this list and whether to issue a writ of certiorari to the lower courts using the Rule of Four

Considering the Case

• When a case makes it to the docket the petitioners have 45 days to file their

briefs

– There may also be amicus curiae briefs from “friends of the court”

• The court clerk then selects a date for oral arguments

– Each side usually has 30 minutes

– The clerks prepare bench memos to assist

the justices

Making the Decision: Overview

• After the oral arguments, the Justices meet in the “black box” of their conference to deliberate

• There is no record of this process

• After they tally the likely votes, they assign the Justices to write the opinion

– The Chief Justice will either write the opinion or the senior member of the majority group assigns the person who writes it

Making the Decision: Voting

• There are three models justices use to vote:

– The Legal Model focuses on legal norms and practices

– The Attitudinal Model focuses on policy preferences and ideology

– The Strategic Model focuses on policy preferences and institutional and societal factors

Making the Decision: Opinions

There are likely many drafts of opinions before the final ones are made public

• In addition to “the” opinion, there are often also concurring opinions and dissenting opinions

What is the Role of the Court?

• There is a pretty active debate on the common-law role of the courts. This debate focuses on whether judges should make law and policies

• This gives us 2 theories of how justices should use their power, judicial activism and judicial restraint

Judicial Activism

• Judicial activism is the view that the Supreme Court and other judges can and should (re)interpret the texts of the Constitution and the laws in order to serve the judges' own visions regarding the needs of contemporary society. This may mean striking down laws or stepping away from precedents.

Judicial Restraint

Judicial restraint is a theory of judicial interpretation that encourages judges to limit the exercise of their own power.

• It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional, though what counts as obviously unconstitutional is itself a matter of some debate.

Checks on the Supreme Court

The Legislature and the Executive

– Congress creates the courts

– Congress can also limit the courts (their dockets, caseloads and even judgeships)

– Congress can impeach judges and justices

– The President nominates justices and the Senate confirms them

– The President can grant pardons or choose not to enforce decisions

Checks on the Supreme Court

• Intra-court restraints

– Jurisdictional issues and the precedents established by higher court decisions can limit lower courts

– The interactions between judges and justices can be a large factor

• The Public

– Courts are meant to be “above politics” but public opinion can affect rulings and how rulings are followed