Establishing the Presidency

Article II: “The executive power shall be vested in a President of the United States of America.”

It states that the chief executive is to “preserve, protect and defend the Constitution of the United States.”

It also implies that the president should serve as America’s head of state.

Constitutional Requirements

Unitary Office

Requirements to run: Natural-born citizen, Lived in the U.S for 14 years prior (not consecutively), Must be 35 years or older.

Electoral Collect Elects president

Person elected serves a four-year term

12th amendment allows the president to choose the Vice President

22nd amendment limits a person to two terms

25th amendment outlines presidential succession

Expressed Powers: Military

The President serves as the commander of the entirety of the US Armed Forces

The President also serves as the chief of all intelligence services (CIA, FBI, NSA, and 20 others)

The President may deploy federal troops domestically to maintain public order

What is the norm around deploying the military domestically? We usually don’t see this happen. Navy troops deployed for natural disasters. President Biden deployed federal troops after hurricane Helene. It is usually the national guard and they are a state level, so it is not a presidential task

Why is this in the news recently? Donald Trump deploy military against political rivals. Would be stark departure if it is something he actually does if he’s reelected.

Expressed Powers: Judicial

Presidents have the power to grant pardons and blanket amnesty

Many use of the pardon have been meaningful or controversial

In 1868, Andrew Johnson pardoned all Southerners who participated in the Civil War

Gerald Ford pardoned Richard Nixon after Watergate

Donald Trump pardoned many of his close allies who were under criminal investigation or conviction, including Stephen Bannon, Joe Arpaio, Paul Manafort, and Michael Flynn

Expressed Powers: Diplomatic

Treaties: Contacts with other countries that require 2/3 senate approval

Executive Agreements: Contracts with other countries that do not acquire Senate approval, but that the Judicial Branch has ruled are the same as treaties

Examples can include trade deals, military alliances, intelligence sharing effort, nuclear deals, etc.

Presidents can “recognize” countries as legitimate, or place embassies in different places

Any places where this kind of behavior would be meaningful? If you were government of a country you would like to have to US recognize your country as legitimate. Does not recognize = bad. Symbolically placing embassies or recognizing them in different countries can have a big impact on global diplomacy. Especially in tempestuous places like the middle east.

Expressed Powers: Executive

The President: Appoints federal judges, Sees that laws are faithfully executed, Appoints (and can fire) executive federal officers (Department Secretaries, leaders, and other higher staff)

What about ordinary federal bureaucrats? 99 percent long term, A political, professional bureaucrats and new administration comes through and president appoints top .5% of officials that run things.

Executive Privilege: The claim that communications between a President and close advisors cannot be revealed without a presidents consent

Donald trump has repeatedly claimed Executive Privilege, even when out of office, to block the release of documents and evidence surrounding January 6th, the Mueller Report, and investigations surrounding his likely illegal retention of classified documents

Expressed Powers: Legislative

Presidents have increasingly used their platforms to be the primary driver for government policy and public awarness of national issues (see: Agenda-setting)

The President submits the budget for the Federal Government every year for Congress to consider; in doing so, that gives the President a lot of influence over policy priorities and discussions

Expressed Powers: The Veto

Veto: The Presidents power to turn down/reject acts of Congress

A veto may in turn be overridden by a 2/3 vote in each house of Congress

Out of 2500+ veto’s, only 110 have been overridden

The veto is an example of what key term from the first section of class? Checks and Balance

Implied Powers

What is an implied power? Power that is derived from an expressed power.

Legislative initiative: The ability to formulate policy proposals to address different issues and present them to Congress for consideration. A good, consistently repeating examples is the federal budget. Other examples include Obamacare and the Trump Administration tax reforms

Delegated Powers

Congress cannot execute and administer all the programs it creates and all the laws it enacts, so it often delegates power to the Executive Branch and the federal bureaucracy

It often defines broad goals and objectives instead of specifics, which gives a lot of power to the federal bureaucracy, and to the President as well

The it delegates power to the executive branch agencies to determine how its goals are to be achieved

Inherent Powers

Implied powers are those not directly stated in the U.S Constitution, but inferred from it. Inherent powers derive from the idea of national sovereignty, which is the idea that under international law and custom, sovereign states have a number of rights. These include the right to engage in relations with other states, curb internal violence, and defend themselves

These power are often asserted during wartime and emergencies

White House Staff

Under no circumstance can a president do their job without a ton of help

White House staff include range of analyst and advisors that provide the president wit advice that tends to ne more political

Often White House staff are longtime trusted allies or campaign officials

This was especially true in the Trump White House, where he elevated the family members to important advisory roles

Executive office of the President

The Executive Office of the President (EOP) is the blanket system term for a number of agencies that support the President in performing their duties

The EOP has expanded alongside the importance and expanded role of the presidency

Key agencies within the EOP include the National Security Council, The Council of Economic Advisors, and the Office of Management and Budget

Office of Management and Budget

The OMB is the largest agency in the EOP

They are responsible for setting the terms of the budget, which in turns grant the agency, and especially the OMB director, with a lot of power

This means that they set the “negotiating baseline”, so to speak, for budget allocations to various departments and agencies

Cabinet

The Cabinet is the designation for all the heads of the major department (Defense, Homeland Security, Agriculture, etc.)

The cabinet makes no decisions as a group, but oftentimes testify in front of Congress on polices or issues, and advise the President and implement the Presidents polices within their respective spheres of influence

Elements of Federal Bureaucracy

Department: An “administrative unit” within the federal government responsible for overseeing a particular area, such as Defense, Energy, Transportation, etc. Departments are often composed of many different agencies and other entities

Independent Agency: Many important government agencies are not under a department umbrella and are considered independent (Example: CIA, EPA, Federal Reserve)

Government Corporation: A company owned by the government that operates independently (FDIC, USPS)

Why would these exist? Organize and carry out the various functions of the federal government efficiently and effectively,

What is the purpose of the USPS? Deliver mail.

Restraints on the President

Congress can override a veto

Congress approves judicial and executive appointments

Congress approves the budget

The Supreme Court and Congress can investigate the actions of the president

Congress can impeach the president and remove him from office

How common is impeachment? Why Why would a lawmaker be reluctant to impeach Donald Trump. Not common. 2/3 vote, electoral risk, party and voters turn against.

What are other things might be a constraint on President?

Office of the Vice President

Created by the Constitution

Has only two official functions-presiding over and breaking ties in the senate, and succeeding the president in case of death or incapacitation. All other duties are unofficial or inconsistently applied.

What factors go into choosing a Vice Presidential candidate? shares policy goals, electoral considerations, appeals to certain demographics.

Summary of Congressional Powers

Power to make laws, declare wars, raise money (taxes) and over see expenditures (spending) referred to as the “power of the purse”, to impeach federal officials , approve presidential appointments, approve treaties negotiated by the executive branch, and to perform oversight and investigate items pertaining to government action.

House = Local Senate = Local and State

More differences between house and senate

435 House members versus 100 senattors

House members are elected by districts that are apportioned by population

Senators are elected by statewide vote since 1913

The house is more centralized and organized

No term limits for either house members or senators

What might be some differences between the house and senate in terms of partisanship, outlook, etc.? House is more partisan. People is house are more constituencies them more partisan

Senators represent much more diverse constituencies than house members

What does this mean for their platforms? Messages? Partisanship? More partisan and more general. Want to appeal more to state and rural voters, minorities, white people. Work on longer time frame for policy. Larger scale projects. House is more regional.

House members typically cater more to local interest groups with specific agendas

Senators tend to act as agents for groups and interest that operate on larger (statewide or even national) scale over a large time frame

Trustee vs. Delegate Representation Styles

Delegates act on express perceived preferences of their constituents

Trustees make decisions for their best constituents that they think are best

Sociological vs. Agency Representation

Sociological Representation: Represent where the representatives have the same racial, gender, ethnic, religious, etc. backgrounds as their constituents-this is assumed to promote good representation

Agency Representation: Holds that representatives should be accountable to those they represent regardless of background. The threat of some sort of consequences for their actions should promote good representation

Demographics

Almost all of congress are religious to some sort, mostly Christians of some sort

Overrepresentation of men, but it is becoming more even over times. Most females are democratic

Only a fifth of congress are racial minorities, but 40% of the Us pop is a minority. This margin is increasing, but slower than the percent of women

Discussion

Congress is disproportionately: Old, white, religious, wealthy, male

Can represenatives’s be effective if they don’t resembled mirror their constituents

If so, what problems might arise still, if representatives don’t resemble their constituents?

The Electoral Connection

Three main factors that affect who gets elected

Who runs for Congress

Incumbency/financial advantage

Drawing of House Districts

Typically, what might make for a good candidate? Government experience, well spoken, smart/educated, credibility/track record/history of success, money?, integrity, respectable, toughness, connections, bipartisan/diplomatic, veteran, platform/messaging, presentation

Keys to Power in Congress

Control of one or both chambers

Control of the committees

Control of the rules

Regular Order

The traditional method of lawmaking

Bills are: Proposed, Referred to the appropriate committee, if they don’t make it out of the committee, they are debated on the floor and voted on, bills can be amended to standardized language.

A long, deliberative process with many opportunities for adjustment, altercation, and also bill failure

Pros? more time to understand, fix and improve Cons? long time, chance of not making it

Unorthodox Lawmaking

Increasing replacing “regular order” in law making. (example: Omnibus budget bills)

Includes several distinct elements":

Closed Rules: Limits on amendments and debate over bills to speed legislation

Sometimes bills 1000+ pages long are made available and then voted on less than an hour later under these rules

Multiple Referral: Referring a bill to multiple committees for consideration

Prevents any individual committee from killing a bill

Why employ unorthodox lawmaking instead of regular order? More partisan

Important Considerations

Do constituents have strong opinions/knowledge on everything? (What does that mean for Congress people?) Not really. Do whatever. Lots of power in the situation.

Caucus: A group of senator or representatives who share similar interest/goals

Examples? African American, women

Congressional Staff

Congresspeople are supported by a large number of staff (11000) who help with constituents, do research, work with lobbyist, etc.

Particular committees also have attached staffers, who work on research, scheduling, etc. for the particular committee

There are several staff agencies: agencies under the legislative branch that provide Congress with resources and expertise

Key Congressional Agencies

Congressional Research Service: Researches issues for legislators pertaining to policy proposal, legislation, etc.

Congressional Budget Office: Calculates the cost of various legislative proposal

Often influential and cited very often

Calculating the cost of expansive programs like the IRA, or the ACA, ca be extraordinarily challenging

Filibuster

Filibuster: A method in the Senate only; a lawmaker can continuously speak until the supporters of a bill back down or the legislative session ends

Cloture: How you end a filibuster; 60 senators must agree to suspend debate

Recently Democrats (including VP Harris) have proposed ending the filibuster to codify Roe v. Wade

Why? Pros? Cons?

In a recent famous example, Ted Cruz filibustered ACA funding, and in his hours-long speech on the floor, read his children a bible story and Dr. Suess from the Senate floor

Impeachment

Congress can vote to remove a president from office for “Treason, Bribery, or other High Crimes and Misdemeanors”

Somewhat vague language

Presidential conduct that has been deemed worthy of impeachment is very rare

Andrew Johnson dodged impeachment by

Speaker of the House

Administrative head of the Congress

Performs many procedural duties

Second in presidential line of succession

Often viewed as the leader of the party not in the presidency

Current Speaker of the House is Mike Johnson

Senate Majority Leader

Performs many procedural duties

Can be the chief spokesperson for the party not in the presidency

Heavily assisted by the party’s whip

Congressional Dysfunction 1900 v. 2000s

1900

More institutional unity and adherence to the ideal of Congress as an important, deliberative body that gets things done

More workmanship and courtesy, less public attention on Congressional members

Minimal filibuster usages

Adherence to “norms”, less chaotic behavior

2000s

Increased use/threat of use of filibuster tactic

More individualistic membership

More extreme partisan examples dividing parties into different sections

Increased incentives for members to obstruct Congress and not follow norms

A Bureaucracy is

Bureaucracy: The complex structure of offices, task, rules, etc. that larger institutions ’s employ to coordinate work

Ex: U of A, Us Government, City of Fayetteville, etc.

Bureaucrats are professionals who work for a bureaucracy

Government officials, your stalwart ANG professor, Police Officers, Public school teachers

Features of Bureaucrats

One key goal is consistency; outputs should remain the same regardless of leadership, unless directives change

For example, who the Chancellor is should not affect how I teach

Street-level-bureaucrats: Lower level bureaucrats who often interact with the public and impalement policy: park rangers, teachers, customs officers

Implementation: The translation of laws into rules and/or actions

When a police officers the law, they are implementing that law

Oftentimes requires expertise/experience/special training

What do bureaucrats do?

Implements laws: Congress makes laws, but the bureaucracy puts them into effect

This falls into the gray area idea: Congress sets broad parameters, and the bureaucracy has the leeway to creatively implement tins ide those parameters as long as they stay within the boundaries Congress sets

Makes rules: Oftentimes, bureaucrats makes rules/regulations to fill in the specifics on laws and policies

When congress passes a law:

The implementation is assigned to a relevant agency

The agency studies the law and proposes rules to guide implementation to the OMB

The proposed rules are published for months-long public comment period

Public comments are then compiled and reviews and adjusted, and then sent back to the OMB for final publication

This a long, exhaustive, detailed process

About Bureaucratic Rules

They have the force of laws

Rules are easily changed from administration to administration

Lobbyist and interest groups work to affect rules as often as they seek to affect actual laws

What are some advantages of this rule making process? Gather more information about decision. Outweigh disadvantages.

Disadvantages? Time to put into affect. Differentiates from bills.

Public opinions? Feels valued. Positive of Government. Government functions more with this positive aspect.

Who do we compare government outputs and efficiency to?

What else do bureaucrats do?

Enforcement: Bureaucrats enforce laws and rules, giving them meaningful influence over private actors

Enforcement mechanism include warnings, fines, possible embargos, etc.

(Good example form the book: Volkswagen cheated emissions tests for years-when caught, the EPA forced them to finance clean air programs and pay 14.7 billion)

Innovation: Bureaucrats often innovate when rulemaking in the gray area; oftentimes, new technologies or policy approaches are the result

The internet came about due to bureaucratic innovation

Is the Bureaucracy Efficient?

Who do we compare the federal bureaucracy to? Private sectors

Is comparison fair? No

Is the federal bureaucracy efficient? Efficiency varies widely by agency and function. Some agencies are seen as models of efficiency, while others struggle with delays and waste

How do we define efficiency? Speed and responsiveness, Cost-effectiveness, Outcome quality

Who is held to a higher bar by the public? The Federal Bureaucracy is held to a higher bar

How to build an effective bureaucracy

What do we want in a bureaucracy? Efficient, qualified, good at job, educated, non partisan, competitive wages, good work environment, benefits/protection, union, consistency, impartiality, apolitical, clear rules and hierarchies, equal treatment, long-term employment

Important Legislation

Hatch Act: Prevents federal employees from engaging in certain political activities, especially in their work setting/context of their jobs

Pendleton Civil Service Reform Act of 1883:

Establishes that most bureaucrats are hired on the basis of merit

Prevent most bureaucrats from being fire for political reasons

Chevron and Post-Chevron

The case of Chevron v. NRDC established the precedent that when agencies are left with choices about how they implement policy, they are permitted to leverage their expertise to interprets Congress’s intent

Recently, in Loper v. Raimondo, the Supreme Court ruled that federal judges have the final say over experts in interpreting Congressional intent, even in areas where judges lack expertise (nuclear regulations, medical treatment, abortion pill access, etc.)

Red Tape

Red tape refers to excessive rules/regulations/paperwork that slow “excessively” slow down the work of the bureaucracy

For example, it can take a really long time and so, so many forms to file an application for citizenship

Red tap is often cited as symptom of slow, inefficient bureaucracy

In reality, oftentimes these inefficiencies are the results of legal, political, judicial, and feedback-based restraints, which are often intended to promote equal treatment

Shrinking the Bureaucracy: Devolution

Devolution: When a program is removed from one level of the government by passing it down to a lower level of the government (Such as from the federal level to the state level)

Supporters argue that it gives states more powers, and allows for more flexible, tailored approaches to addressing issues

Opponents argue that states have fewer resources, financially or in terms of human resources, to address these issues. Also they cite the potential for inequality on a state to state basis

Overall, devolution tends to result in a wide range of outcomes depending on the state. Some states use the opportunity to implement services to introduce innovative systems that serve citizens well, while others dismantle programs entirely that they view unnecessary

Shrinking the Bureaucracy: Privatization

Privatization: When a formerly publicly provided service is now provided by a private company, which is paid by the government to render that service

The idea is that if private companies can provide government services for less money, tax payers win and the government can provide more services or cut taxes

We see a massive spike in this practice during the early 2000s under George W. Bush, with payments for federal contracts growing by 250% in that time

The threat of privatization alone can force government agencies and departments to streamline their procedures and polices which is a positive!

However, due to limited competition and in efficiency in private industry there is no evidence that privatization saves the government, and by extension the tax payer, any money overall

Privatization Critiques

Overspending or mis-spending in Iraq and Afghanistan

Reforms that would place limits and oversight on contractors are often difficult because contractors are often large, wealthy well-connected companies

Congress blocked a bill requiring contracts to divulge their campaign contributions

Unsafe work environments (President Trump instituted a rollback on a previous ban for contractors that had work place safety, labor, or wage rate violations)

Essentially, inefficiency in public or private position is often based on a human element that is impossible to remove and om present

Federal Bureaucracy in Statistics

Beyond the military and the postal service, around 2 million people are permanently employed directly by the federal government

This is in addition to 1.2 million members of the military and 800000 postal workers

Federal bureaucrats are majority female, disproportionately white, and primarily college gradutes

Upper level executives are still overwhelmingly male

4 out of 5 federal employees work outside of the Washington, D.C. area

Controls on the Bureaucracy

Judicial oversight: Federal courts have the power to judge whether executive actions are constitutional, no matter if the actor is the president or the bureaucracy

Citizen Oversight: Ordinary citizens and journalist can request most all records from federal agencies-this kind of investigation has in the past revealed bureaucratic inefficiencies/failures

Whistleblowing: Employees who report wrongdoing in their workplace

Most recently, a whistleblower report led to the first impeachment of Donald Trump

Types of Statues/Laws

Law - A binding rule of conduct, including rules created by the federal Bureaucracy

Statue - A law specifically passed by a legislative body

Criminal Law - defines crimes and specifies punishments for criminal acts.

Civil Law - disputes among individuals, groups, corporations, and other private entities.

Terminology

Plaintiff: The party that brings the case/complaint to the court. In criminal cases, always the government

Precedent: A prior similar case used by judges as a reference to decide a present case. Precedent is USUALLY followed as a guide when determining similar cases.

Stare Decisis: The idea that precedent should be respected in similar cases unless the original idea is overturned

Jurisdiction: The sphere of court’s power/authority. Can be topical, geographical etc.

Standing: The right to participate in a court case based on having a stake in the outcome

Types of Courts

Trial/District court: the first court to hear a cases

Appeals Court: the courts that hears appeal to trial court decisions

Federal Court: a court that serves as a part of the federal government system and functions in federal cases

State Court: a court that is part of a state government and functions in cases concerning state law

Bottom to Top → District → Appeals → Supreme

State > Federal (In terms of court size)

Supreme Court Jurisdiction

Cases between the US and 1 of the 50 states

Cases between two or more states

Cases involving foreign ambassadors or other ministers

Cases that involve constitutional and federal law

Cases where the US is a party

The Supreme Court determines the merits of cases-individuals cannot assert relevance and have their case heard automatically

The importance of the Federal Court System

The federal courts interpret the Constitution and federal law. (Supremacy Clause!)

The federal court hears cases involving the expanding power of the national government and serves to check it

Given their power to review state court decisions, the federal court system dominates the overall American judicial system

History of the Supreme Court

Established by Article III of the Constitution

The ONLY court established by the Constitution-the others are statutory and can be reconstructed or abolished by Congress

The Constitution does not specify the size of the Supreme Court-originally at six members, the court expanded to 7 and then its current size of 9 justices in 1869

Nominee Appointment Process

President nominates, Senate approves

There are ZERO qualifications for serving as a federal judge-only norms

Generally, normative appointees are experienced legal experts whose partisan and ideological views align with the president nominating them

The battle for court nominations, especially to the Supreme Court, is one of the most intense partisan battles in Washington, D.C.

A comparison of Term Limits

United States’ Supreme Court Justices have no term limit and no mandatory retirement age

Many other courts across the world have either term limits or mandatory retirement ages, or both

Canada, our closest neighbor and ally, has a mandatory retirement age of 75

France and Germany have term limits of 9 of 12 years, respectively

Judicial Review

Judicial Review: The power of the judiciary to examine and invalidate actions taken by the executive or legislative branches if they are found to be unconstitutional

Judicial review DOES NOT refer to a higher court’s examination of a lower court’s decisions

(Example) in Hamdi v. Rumsfeld, the Supreme Court ruled that the executive branch could not deny US citizens of their due process rights, even if they were also enemy combatants

Marbury v. Madison

William Marbury petitions to be allowed to fill the office he had been approved for prior to Jefferson’s election as president

Chief Justice John Marshall turns down the petition, citing it as based on an unconstitutional premise

This case set the basis for judicial review, while avoiding a power struggle with the executive branch

Judicial Review of Acts of Congress

The court’s power to review acts of Congress has not been questioned since Marbury v. Madison in 1803

In part, this is because the court tends to error on the side of constitutionality when reviewing acts og Congress

In more than two centuries fewer than 200 acts have been deemed unconstitutional by judicia review (Often controversial cases!)

Judicial Review of State Actions

The Supreme Court has frequently overturned state statues, provisions, court decisions, and local ordinances deemed contradictory to the rights and privileges granted under the constitution

Example include Brown v. board of Education, Cooper v. Harris, and Riley v. California

Judicial Review of Federal Agencies

Congress delegates the executive branch (read: federal bureaucracy) significant power to administer a wide range of programs

Courts are often called upon to determine if implementation by the executive branch is consistent with the intent of Congress

Federal agencies must develop rules and regulations to implement the policy passed by Congress that is based upon a “reasonable interpretation” of the Congressional statue

Generally the courts give a decent amount of leeway to administrative agencies as long as they follow proper procedure-however, following the overturning of the Chevron decision (See Federal Bureaucracy notes) this is somewhat in question

Judicial Review and Presidential Power

Generally, the federal court upholds powers claimed to be held by the president, which has contributed to the expansion of Presidential power over the course of American history

Technology Difficulties

One challenge for the modern court system is constantly having to update decisions to pertain to modern technology

For example, in Riley v. California, the courts ruled that warrantless search and seizure of cell phones was unconstitutional-a clarification that was unnecessary mere decades earlier

The Court System as a Reflection of Society

The power of the court and the power of judicial review, and the nature of the cases decided by the courts, change over time in response to societally changes

Examples include Plessy v. Ferguson and Brown v. Board of Education, and Obergefell v. Hodges and other assorted LGBTQ rights cases

Role of the Solicitor General

The Solicitor General serves as the top lawyer for the US government

The actions of the solicitor general in regard to the flow of cases from the government to the Supreme Court is not reviewed by ANY higher authority in the executive branch

The Solicitor General screens cases submitted by federal agencies before they are sent to the Supreme Court. Only a bare handful of agencies are exempted from this requirement, like the FCC and the Department of Agriculture

Bureaucracy → SG → USSC

Deciding Cases

Courts apply statues and legal precedents

Justices are aware of the Court’s places in history and care about protecting the Court’s reputation

Judicial philosophy

Originalism: “strictly constructionist” that refuse to go beyond the clear words of Constitution in interpretation. Typically the realm of conservative justices. Also referred to as judicial restraints or textualism

Judicial activism: those who feel the Court’s should go beyond the words of the Constitution and consider the broader societal implications. Typically the realm of more liberal justices, but can apply to conservative justices as well

Spread cut cases, incremental change,

Checks on Judicial Power

The courts cannot exercise on their own initiative

The courts lack enforcement powers on their own and must rely on executive or state agencies to ensure compliance

The president and the Congress share the composition of the Court

Congress can change the size of the court as well