Enlightenment Philosophies

• Framers lived at a time when there were new ideas about government organization/function

  • Challenged systems already in place

• Enlightenment (18th century): a philosophical movement that began in Western Europe with roots in Scientific Revolution

  • Use of reason over tradition when solving social problems

• Thomas Hobbes (Leviathan - 1660): believed that people could not govern themselves and that a monarch with absolute power would protect life best

  • Advocated for rule of law

  • Social contract with government: some freedoms sacrificed (respecting government) in exchange for government protection

• John Locke (Second Treatise on Civil Government - 1690): natural rights must be protected

  • Empiricism: people are born with a tabula rasa (blank slate) on equal footing and everything they do is shaped by experience

  • Natural rights (life, liberty, property) are granted by God and government must protect them

    • Right to revolution if natural rights are taken away

• Charles de Montesquieu (De l’Esprit des Lois/The Spirit of the Laws - 1748): separation of power into three branches of government

  • Checks and balances limited power of each branch

• Jean-Jacques Rousseau (The Social Contract - 1762): people are born good but corrupted by society and should act for the greater good rather than out of self-interest

• Voltaire (Candide): satirical novel, reflected dislike of Christian power and nobles

  • Rationality, advocate of freedom of thought, speech, religion, and politics

• Denis Diderot: producer/editor of first encyclopedia, wanted to change the ways people thought by adding his own/others’ philosophies to his work

  • Advocate of freedom of expression and universal education access

  • Criticized divine right, traditional values, and religion

• Philosophers favored democracy over absolute monarchy

• Forms of representative democracy:

  • Participatory democracy: broad participation in politics/society by people at various statuses

  • Pluralist democracy: group-based activism by citizens with common interests who seek the same goals

  • Elite democracy: power to the educated/wealthy, discourages participation by the majority of people

• Republicanism: supports individualism and natural rights, popular sovereignty (people give the government power), encourages civic participation

  • American Republicanism characterized by representative democracy

    • Elected officials representing a group of people

  • Popular sovereignty: government power derives from the consent of the governed (ex. elections, protests)

The Declaration of Independence

• A formal declaration of war between America and Great Britain

• Written by Thomas Jefferson

• List of grievances (“crimes” King George III committed against the colonies)

  • Used to explain why the colonies are declaring independence

• Used as a template by other nations declaring independence

The Weaknesses of the Articles of Confederation

• Outlined the first government of the United States of America

• Predecessor to the Constitution

• Followed from 1776 to 1781; ratified and named in 1781

• Accomplishments:

  • Created federalism: the way in which federal and state/regional governments Interact and share power

  • Ended the Revolutionary War on favorable terms for the United States (Treaty of Paris - 1783)

  • Established the Northwest Ordinance, which created methods through which states would enter the US

• Weaknesses:

  • 1787: trade between states declined, monetary value dropped, foreign countries posed threats, social disorder throughout the country

    • Shays’ Rebellion (1786-1787): 6-month rebellion formed by over 1,000 farmers in which a federal arsenal was attacked in protest of the foreclosure of farms in western Massachusetts

      • Major concern at the Constitutional Convention

      • Exposed issues with Articles of Confederation and showed necessity of a strong central government

  • Could not impose taxes (result of taxation without representation); only state governments could levy taxes

    • National government was in debt from the Revolutionary War had no way to pay for expenses

      • Could only acquire money by requesting it from states, borrowing from other governments, or selling lands in the West

  • No national military; could not draft soldiers

  • No national currency

  • No Supreme Court to interpret law

  • No executive branch to enforce laws

  • No control over taxes imposed between states and could not control interstate trade

  • Needed unanimous votes to amend the Articles

  • 9/13 states had to approve legislation before it was passed

  • Could not control states

  • No enforcement mechanisms/requests from within federal government

  • Needed to be revised

    • Constitutional Convention created Constitution

    • resulted in complete rewrite of the Articles => Constitution

The Constitutional Convention

• Meeting of the framers in 1787 in Philadelphia, Pennsylvania

  • Division over powers, structure, and responsibilities of government

  • Some believed that the government under the Articles was too weak, others believed that it shouldn’t be changed

  • Generally accepted as pragmatists who tried to protect their and everyone else’s property + rights

  • Stronger central gov’t necessary, potential to be corrupted

    • Federal legislature had two main issues:

      • Unicameral (single house) vs bicameral (two house) legislative branch

        • Madison’s Virginia Plan: bicameral legislature based on population size

          • Supported by larger states b/c of better representation

        • New Jersey Plan: unicameral legislature, one vote per state

          • Similar to Articles of Confederation

          • Smaller states worried that gov’t would be dominated by larger states

        • The Great Compromise (Connecticut Compromise): a bicameral legislature with a House of Representatives (population) and Senate (equal representation)

    • Representation of enslaved people

      • Northerners: enslaved people should not be counted for electoral votes

      • Southerners: enslaved people should be counted for electoral votes

        • Larger population when enslaved people were counted

      • Three-Fifths Compromise: enslaved people would be counted as 3/5 of a person when deciding seats in the House of Representatives

  • Authority to enforce laws

    • Created chief executive (president)

      • Enforcer of the law, could keep the legislative branch in check

      • Presidential approval required before bills become law

      • President can veto acts of legislature

        • Congress can override veto if 2/3 of both houses vote

  • Supreme Court

    • Could mediate disputes between legislative and executive branches, between states, and between state + federal government

  • Acceptance of the Constitution

    • Had to be submitted to states for ratification

    • Federalists: supporters of the Constitution, advocated for a strong central government

      • Alexander Hamilton, James Madison, and John Jay wrote The Federalist Papers: a collection of articles supporting the Constitution

        • Best reflects original intent of the framers

        • Persuaded states of the superiority of a strong central government plus power kept by the states

    • Anti-Federalists: opponents of the Constitution, preferred smaller state governments (Articles of Confederation)

      • Believed that the Constitution would threaten personal liberties and make the president a king

      • Feared tyranny + abuse of power

      • Wanted a Bill of Rights: protects the rights of citizens from the government

        • Guaranteed by the Federalists and was added immediately after ratification

        • 10 amendments written by James Madison

  • Created the Electoral College: composed of elected officials from each state based on population (each given 2 votes + 1 vote per member of House of Representatives) with a total of 538 electors

    • Originally created because the framers didn’t trust American citizens to be educated enough to choose a good president

    • Thought the Electoral College would protect election against the influence of small groups

    • Would ensure that states with larger populations didn’t completely overpower smaller states

    • The presidential candidate who wins 270 electoral votes wins the election regardless of who wins popular vote

The Federalist Papers and Anti-Federalist Dissent

Brutus No. 1

• Anonymous author (pseudonym Brutus) asked questions about + critiqued the draft of the Constitution

• The first publication that began a series of essays known as the Federalist and Anti-Federalist Papers

• National government had too much power, an army could prevent liberty, and representatives may not truly be representative of the people

• Major dissent: The Federalist Papers attempted to answer questions and address concerns posed by Brutus + other Anti-Federalists

Federalist No. 10

• Written by James Madison

• Addresses dangers of factions + how to protect minority interest groups in a nation ruled by majority

• Argues that a large republic keeps any single faction from taking control

• Major dissent: Anti-Federalists thought that Madison’s claims were unrealistic and that a country with multiple factions could never create a good union

  • Believed that no large nation could survive and that states’ separate interests would fracture the republic

Federalist No. 51

• Written by James Madison

• Argued that separation of powers would make the government efficient, dividing responsibilities and tasks

• Major dissent: Anti-Federalists believed that there was no perfect separation of powers and that one branch of government would eventually hold more power

Federalist No. 70

• Written by Alexander Hamilton

• Argued that the executive branch should only have one member: the president

  • Used the British monarchy as an example: the king had power but was checked by the House of Commons

• Proposed term limits as another way to limit the president’s power (not set until the 22nd Amendment in 1951)

• Major dissent: Anti-Federalists believed that only the president’s staff would influence him and disagreed with giving control of the military to one person

Federalist No. 78

• Written by Alexander Hamilton

• Addressed concerns about the power of the judicial branch

• Argued that the judicial branch would have the least amount of power under the Constitution but would also have the power of judicial review

  • Check on Congress

• Major dissent: Anti-Federalists claimed that a federal judiciary could overpower states’ judiciaries and that judges’ lifetime appointments could result in corruption

The Constitution as an Instrument of Government

• The Constitution is vague and only outlines the government structure

  • Written to allow change through amendments

  • Branches of government have evolved since ratification

• Articles I-III: set up the three branches of government (in order):

  • Legislative branch

  • Executive branch

    • “The executive power shall be vested in a President of the United states of America”

      • Power to issue executive orders

        • Same effect as law, bypasses Congress in policy-making

        • Not mentioned in the Constitution

        • Used as part of the enforcement duties

        • Ex. Executive Order 9066: FDR ordered people (Japanese and German Americans) from a military zone

      • Executive agreements between country leaders are similar to treaties

        • Bypass ratification power of the Senate

        • Not mentioned in the Constitution

  • Judicial branch

    • Marbury v. Madison (1803): Supreme Court increased its own power by giving itself the power to overturn laws passed by legislature (judicial review)

• Article I, Section 8 - the necessary and proper clause: allows Congress to make any legislation that seems “necessary and proper” to carry through its powers

  • Aka the elastic clause

  • Ex. nothing in the Constitution that creates the Federal Reserve System (central bank), nothing about the executive branch’s cabinet

  • Federal District Courts and Courts of Appeals both created by Congress

• Supremacy clause: supremacy of Constitution and federal laws over state laws

  • “and the laws of the United States which shall be made in pursuance thereof...shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding”

Federalism

• A system of government under which the national and local governments share powers

• Ex. Germany, Switzerland, and Australia

• Confederation: a system in which decisions are made by an external member-state legislation; decisions on daily issues are taken by special majorities, consensus, or unanimity

• Supreme Court cases:

  • McCulloch v. Maryland (1819): court ruled that states could not tax national bank

    • Reinforced supremacy clause of Constitution - issues between state + federal government laws should be ruled in favor of federal

    • Necessary and proper clause - banks were necessary to implement federal powers

  • United States v. Lopez (1995): challenge to the Gun-Free School Zones Act of 1990 (banned guns on school property)

    • Held that commerce clause didn't allow regulation of carrying guns

    • New phase of federalism - state sovereignty and local control were important

Powers Under Federalism

• Delegated (enumerated) powers: powers that belong to the national government

  • Ex. printing money, regulating interstate + international trade, making treaties + conducting foreign policy, declaring war, est. post offices, lower courts, rules of naturalization, and copyright/patent laws; raising + supporting armed forces, making all laws “necessary and proper” to carry out duties

• Reserved powers: powers that belong to the states

  • 10th Amendment: include any that the Constitution neither gives to the national government nor denies to the states

  • Ex. issuing licenses, regulating intrastate business, conducting elections, est. local governments, maintaining a justice system, educating residents, maintaining a militia, providing public health, safety, and welfare programs

• Concurrent powers: shared by federal and state governments

  • Ex. levying/collecting taxes, building roads, operating courts, establishing courts, chartering banks + corps, eminent domain, paying debts, borrowing money

• Constitution specifies which powers are denied to national government and states

• Constitution makes federal government guarantee states a republican government and protection against rebellion + invasion

  • Prevents states from dividing or combining without congressional approval

• States are required to accept court rulings, licenses, contracts, or other civil acts of other states

• Changed over time

  • First: federal/state governments were independent

    • Most Americans had contact w/government on state level

• Denied powers:

  • Federal government:

    • Suspend writ of habeas corpus except during a national crisis

    • Pass ex post facto laws or issuance of bills of attainder

    • Impose export taxes

    • Use money from treasury without appropriations bill

    • Grant titles of nobility

  • State government:

    • Enter into treaties w/other countries

    • Declare war

    • Maintain an army

    • Print money

    • Pass ex post facto laws or issuance of bills of attainder

    • Grant titles of nobilities

    • Impose import or export duties

• Federal government programs

  • Most administered through states

  • Paid for by federal government through grants-in-aid

    • Some politicians tie strings to grants (federal government still in control over money)

    • Other politicians want no strings attached (state/local government decides how to spend)

  • Grants:

    • Categorical grants: aid with strict rules from the federal government about how it is used

      • Used by those who favor federal power

    • Block grants: aid that lets the state use the money how it wants

      • Used by those who favor states’ rights

    • Federal government can still use techniques to make states follow federal law

      • Ex. direct orders, preemption

• Advantages of federalism:

  • Mass participation (many can participate on many issues)

  • Regional autonomy (states still have some powers)

  • Multi-level government (local, state, federal; many politicians connected to supporters)

  • Innovative methods (states can experiment with policies)

  • Diffusion of power (no party domination)

  • Diversity in government

• Disadvantages of federalism

  • Lack of consistency (differing policies creates inequality in states)

  • Inefficiency (overlapping/contradictory policies)

  • Bureaucracy (corruption/stalemate through spread-out power)

  • Resistance

  • Inequity (legislation/judicial outcomes)

Separation of Powers

• Borrowed idea from French political philosopher Charles de Montesquieu

• Assigned different tasks to each branch of government

  • Legislative branch makes laws

  • Executive branch enforces laws

  • Judicial branch interprets laws

• Prevents a person from being in more than one branch at a time

  • Has to resign in order to change positions

System of Checks and Balances

• Designed to prevent any branch of government from becoming dominant

• Requires different branches to work together and share power

  • Examples:

    • Nomination of federal judges, cabinet officials, and ambassadors

      • President chooses nominees who must be approved by the Senate

    • Negotiation of treaties

      • President is empowered to negotiate treaties, but they cannot go into effect until approved by 2/3 of the Senate

    • Enactment of legislation

      • Congress passes legislation, but the president can veto (reject) laws

        • Encourages Congress to pass laws that align with the president’s views or negotiate to avoid being vetoed

        • Congress can override veto by passing a law with 2/3 majority in both houses

          • Law becomes law regardless of president

        • Courts can determine constitutionality of law and overturn laws if they are unconstitutional

Amendment Process

• Amendment: the addition of a provision to the Constitution

• Main process:

  • Proposed amendment must be approved by 2/3 of both houses of Congress

  • 3/4 of state legislatures must ratify (approve) the amendment, and the states themselves are allowed to determine the votes required to ratify the amendment

  • Congress can also mandate that each state use a ratifying convention (delegates elected to vote on the amendment)

    • Used once to ratify the 21st amendment (1933) - ended prohibition

• Another process:

  • 2/3 of state legislatures petition Congress for a constitutional convention

    • Never happened before

State and Local Governments

• State governments

  • Can take any form, but must have a state constitution approved by Congress

  • Most structured after federal government

  • Executive branch led by governor

    • Direct state executive agencies (education, roads/building, policing)

    • Command state National Guard

    • May grant pardons and reprieves

    • Most can appoint state judges with the “advice and consent” of a state legislative body

    • Can veto state legislation

    • May use a line-item veto to reject parts of bills

      • Denied to presidents by Supreme Court - would take too much power away from legislature

  • 49/50 states have bicameral legislatures

    • Enact state law

    • Can override the gubernatorial (governor) veto

  • State judiciaries interpret state law

    • Trial courts and appeals courts

    • Hear criminal cases and civil cases (lawsuits)

Congress

Congressional Structure

• Congress: the bicameral legislature for writing laws

  • Oversees bureaucracy, clarifies and codifies policy, represents citizens, build consensus

  • House of Representatives: a 435-member house, with members apportioned by each state’s population (designed to represent population)

  • Senate: a 100-member house, with 2 members per state (designed to represent states equally)

  • Census: a survey taken every 10 years to count population and determine the number of congressional districts each state has

    • Redistricting: the redrawing of district boundaries to ensure each district has an equal population done by state legislature

      • Gerrymandering: drawing district boundaries to give the majority party a future advantage

        • Does not apply for Iowa; uses an independent commission to draw district lines

        • Helps incumbents

      • Some states have such small populations that the entire state becomes a district

      • Each state is guaranteed one seat in the House

Congressional Elections

• Elections for the House of Representatives are every two years

  • Representatives must live in the district they represent and be a citizen of the state, and must be 25 years old

  • Elections take place within each district

  • Constituencies are smaller than senators’

  • Incumbent election rates are very high (>90%)

  • Less competitive

• Elections for the Senate are every two years

  • Each term is six years

  • Senators must be at least 30 years old

  • More competitive, expensive, and high profile

  • Draw candidates from other offices

• Baker v. Carr (1962): Charles Baker sued Tennessee for not redrawing its state legislative districts because his county’s population had grown but not gained representation

  • Violated 14th amendment (equal protection of the law)

  • Ruled in 6-2 decision that the government can force states to redistrict every 10 years

  • Led to the development of the “one person, one vote” doctrine

  • Gave federal courts the right to weigh in on redistricting

  • Shaw v. Reno (1993): white voters living in North Carolina’s 12th district sued the state for gerrymandering to isolate African Americans into the 12th district

    • Ruled in 5-4 decision that the state was using racial bias in its redistricting

    • Violated equal protection clause

    • Any racial gerrymandering required a compelling state interest

Congressional Districts and Representation

• Voting Rights Act of 1965: encouraged states to increase minority representation in Congress

  • Initially made little change

  • 1982 amended to make states create majority-minority districts (concentrating minority populations into districts)

    • Made it easier for minority candidates to get elected

  • Many states redistricted after the 1990 census, resulting in an increase of minority representation

    • District shapes were weird

    • Legislators in NC, GA, TX, and other states have been accused of gerrymandering

      • Black and Hispanic voters are majority Democrat, Republican-controlled legislatures were accused of trying to remove racial minority Democrats from districts to ensure more Republicans get elected

      • Packing: isolating minorities in a district

      • Cracking: dividing minorities across many districts

    • Population shifts gave more seats in the House to Southern states but took away seats from other regions

    • Suburban representation has increased, but both rural and urban have decreased

    • Hijacking: redrawing two districts in a way that forces two incumbents to face each other in a single district

    • Kidnapping: moving an incumbent’s home into another area after redistricting

• Congressional Powers

  • The Constitution lists out the responsibilities of Congress in more detail than the other branches

  • Both houses have unique powers that require them to work together, including taxing, borrowing money, regulating commerce, raising an army, creating/making rules for courts, establishing naturalization laws, creating post offices, building a militia, and making laws

  • Taxing and spending clause (Article 1, Section 8, Clause 1): gives Congress much control over budgetaryspending

    • “Power of the purse”: gives Congress power to influence others by preventing access to funds or adding conditions

      • Can be used positively to fund programs or negatively to harm an agency

  • House of Representatives can start spending bills and tax laws

    • House of Ways and Means Committee: oversees spending laws and taxing

  • Senate can approve presidential nominations to court and ambassadors to other countries

    • Must also ratify all treaties the president signs

• Non-legislative Tasks of Congress

• Congress primarily writes laws

• Oversight: reviews federal agencies’ work (checks executive branch), investigates charges of corruption, holds hearings (experts and citizens discuss government issues and propose solutions)

  • All committee chairs can subpoena (legally compel) witnesses to show and testify

  • Confirms members of presidential cabinet

  • Approves nominees for federal court

• Public education: floor debates and committee hearings increase awareness of government/social issues and help to focus national attention

• Representing constituents within the government: politicos (representatives of electorates, Congress members) help constituents with the government and vote on laws; can act on complaints about federal services/agencies, sponsor those who seek contracts, and seek suggestions on improvement

  • Delegate Model (representational view): consider themselves delegates who mirror the views of their districts

  • Trustee Model (attitudinal view): some consider themselves trustees who should think about constituents’ views but use their judgement when making decisions

• Constitutional amendments: can propose amendments by 2/3 vote in both houses or by a convention called by 2/3 of state legislatures

• Electoral duties: House can elect next president if neither candidate gets 270 votes, Senate picks VP

• Impeachment: House has power over impeachment; if majority votes to impeach an official, the Senate runs the impeachment trial and convicts/removes the official from office with 2/3 of Senate votes

• Confirmation duties: Senate can approve both presidential appointments and federal officials

• Ratification: only Senate can ratify treaties if 2/3 votes

  • Senate can influence international relations and foreign policy

• Investigation: can be conducted by either a standing or committee and may last months while members gather evidence and witnesses

  • Majority lead to new legislation to address the issue, changes in programs, or officials’ removal from office

Legislative Process

• Slow and complicated

  • Prevents decisions from being made too quickly

  • Facilitates compromise and communication between both sides

• Bills

  • 10,000 bills introduced every year

    • Some written by Congress members and staff

    • Others are written by executive branch and introduced by Congress members

      • Many are written or suggested by interest groups + lawyers

  • Can only be proposed by a Congress member (the sponsor of the bill)

  • Requires two houses to work together

    • Both houses must pass the same bills

    • Different debate and voting processes

    • House of Representatives:

      • Debates about bills are limited in House of Representatives (too many people)

      • Rules Committee: determines how long a bill will be debated and whether open or closed rules for amending bills are allowed

        • Open rules allow amendments

        • Closed rules forbid amendments

        • Republicans (majority) in 1994 promised open rules for most bills

        • Considered most powerful committee in House

        • Can kill a bill by postponing vote or make it easy for an opponent to add killer (poison-pill) amendments

        • Can bring bills up for immediate vote

    • Senate:

      • Does not strictly control debate, no time constraints

      • Filibuster: used to delay bill’s vote and tie up Senate’s work, usually by a senator making a very long speech

        • Can happen without speeches

        • Senate majority may require a traditional filibuster if needed

        • Cloture: the vote which is the only way to end a filibuster, requires votes of 60 members

      • No closed rules

        • Riders: amendments, do not have to be relevant to bill, allow senators to add amendments

          • Pork barrels: “pet project” riders created to get money to a home state

          • Earmark: provisions in legislation that allot money to a project (appropriation and authorization bills)

            • Not allowed by House

    • Conference committee: committee each house’s version of a bill is sent to which come from the committees of each house that wrote the bill

      • Attempts to negotiate compromise bill

      • Compromise bill returns to both houses for voting

      • Failure to pass a compromise bill will kill it

      • Sent to White House if passed for presidential approval

  • President:

    • Bill becomes law after 10 days if president does nothing regardless of signature

    • Bill is pocket vetoed if president doesn’t sign every bill into law and congressional session ends during 10 days

    • President can veto entire bill if congressional session doesn’t end in 10 days and gives reasons for vetoing

      • Both houses can override veto by a two-thirds vote

      • Houses can also make any required changes

      • If house of origin does nothing with veto, bill is dead

    • Line-item veto: given to President Clinton in 1996 by Congress, allowed the president to veto certain parts of a bill

      • Clinton v. City of New York (1998): the Supreme Court struck down the line-item veto as an unconstitutional power of the president

    • Congress has tried to give itself veto power over the president

      • Wrote legislation giving Congress ability to void presidential actions by a vote of the houses

      • INS v. Chadha (1983): Supreme Court declared legislative veto unconstitutional

Legislation by Committee

• Most legislative activities by Congress are in committees

• Committee members are determined by many factors

  • Majority party of each house holds all committee chairs

    • Also holds most seats on each committee (2/3 on important committees)

    • Oldest/most experience member of majority party is chair and senior member from minority party is ranking member

      • Ranking member becomes chair if minority party becomes majority party

  • Assignments determined by House and Senate leaders + both parties’ caucus

    • Try to get on committees that will help them help the constituents the most and with reelection

• Investigate and debate bills that otherwise wouldn’t be considered due to time

  • Call interested parties and expert witnesses (often lobbyists)

    • Congress can subpoena witnesses

  • After investigations committees amend and rewrite parts of bills in meetings known as markup sessions

  • Often first assigned to subcommittee for consideration

    • Often determine how money is spent

    • Most die because of lack of interest

  • Membership of committee and subcommittee is crucial

    • Bills written to appeal to certain committees

  • Can refuse to vote a bill out

    • Pigeonholed: a bill stuck in a committee

    • Discharge petition: the way to force a bill out of committee for a floor vote

• Oversee bureaucratic agencies and departments

• Heads of agencies often appear before congressional committees

• Can subpoena witnesses (legally requires individuals to appear or produce requested documents)

• Can hear testimony from agency heads asking for money or people

• House has more committees and are more specialized because each member serves on fewer committees

• Types of committees:

  • Standing committees: permanent, specialized

    • Ex. House Ways and Means, Senate Judiciary, Senate Armed Services

    • 17 in the Senate, 20 in the House

  • Joint committees: made up of members of both houses

    • Normally used for investigations or communicating with the public

  • Select committees: temporary committees created in each house for a special reason

    • Usually carry out investigations to write special bills

    • Ex. House Watergate Committee, Senate Select Committee on Unfair Practices

  • Conference committee: temporary committees made up of members from committees of both houses who wrote a bill

    • Try to create compromise bills, then submit to both houses

    • Disbanded once a compromise bill is negotiated

Congressional Leadership

The House

• The leader is the speaker

  • Chosen by the majority party in an election

  • Can direct floor debate and has influence over committee assignment and the Rules Committee

  • Can control which bills are assigned to certain committees

• Majority leader is in charge of party members, determines party policy and agenda

• Minority leader is in charge of minority party members, determines party’s agenda

• Majority and minority whips help their leaders keep members loyal to the agenda, coordinate members, and get support for legislation

The Senate

• President of the Senate is the vice president, only official responsibility

  • Only votes to break a tie

• President pro tempore is the temporary president when the VP is absent

  • Mostly honorary position

  • Usually given to oldest member of the majority party

• Majority leader controls agenda and acts as policy initiator and power broker

  • Minority leader is similar, not policy initiator or agenda controller

Why Do They Vote That Way?

• Pressure to influence vote from own party and opposition

• President jawbones (tries to influence) and colleagues logroll (mutual help)

• PACs, constituents, and interest groups donate to try to influence votes

• Judgment can be affected by personal ideology and religion

• Party affiliation is most important factor

Notable Legislation

National Growth, Expansion, and Building Institutions

• Northwest Ordinance (1787, 1789): created by the Articles of Confederation, provided guidelines for settling new territories and creating new states, reaffirmed in the Constitution in 1789

Government and Industry Regulation

• Pendleton Act (1883): got rid of the spoils system for government job selection, set up exam-based merit system for candidates

• Sherman Anti-Trust Act (1890): gave Congress the power to regulate and disassemble monopolies in the US, abused to break up labor unions

• Hatch Act (1939): let government employees vote in elections but prevented them from participating in partisan politics

• Freedom of Information Act (1966): let the public view government documents

• Air Quality Act (1967) and Clean Air Acts (1960s-1990s): regulated environmental impacts by establishing standards for factories and cars

• Federal Election Campaign Acts (1971, 1974): created the FEC and required contributions and expenditures to be disclosed, created limits on presidential election expenditures and contributions, created subsidies for presidential candidates

• War Powers Act (1973): put limits on presidential power to use troops overseas, created time limit, gave Congress power to withdraw troops; all presidents have declared act unconstitutional since 1973

• Budget and Impoundment Control Act (1974): created Congressional Budget Office and congressional budget committees, gave Congress authority to prevent president from refusing to fund congressional initiatives

• Gramm-Rudman-Hollings Bill (1985): created budget reduction targets to balance the budget; failed to eliminate loopholes

• No Child Left Behind Act (2001): states must adopt education accountability standards, requires annual progress testing, and sanctions schools that fail to meet the yearly progress goals

• Unfunded Mandates Reform Act (1995): Congressional Budget Office must analyze impact of unfunded mandates on states, must have separate congressional vote on bills that impose them

Rights and Freedoms

• Espionage Act (1917), Sedition Act (1918): greatly reduced rights of Americans during war and increased federal government’s power to control public activity; repealed by Congress in 1921

• Immigration Act (1924): limited number of immigrants entering the US and set strict standards for entry

• Voting Rights Act (1965): eliminated literacy tests, let federal officials register voters, prevented states from changing voting procedures without the government’s approval; let federal officials count ballots and make citizens vote

• Age Discrimination in Employment Act (1967): prevented age discrimination in jobs unless job is affected by age

• Civil Rights Act or Fair Housing Act (1968): Title II prevented discrimination in public places based on race, color, national origin, or religion, Title VII banned employment discrimination based on gender

• Title IX Education Act (1972): banded gender discrimination in federally funded education

• Americans with Disabilities Act (1990): protected disabled Americans’ rights and required accommodations to public facilities; prohibited job discrimination if accommodation could be made, required access to facilities for the disabled, allowed non-paid leave of absence without fear of firing

• National Voter Registration Act (1993): AKA The Motor Voter Act, allowed people to register to vote when receiving driver’s licenses

• Patriot Act (2001): After 9/11, Congress permitted police authority to federal, state, and local governments to interdict, prosecute, and convict suspected terrorists; known as the USA-PATRIOT (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism) Act

Government Aid to the People

• New Deal Legislation (1933-1939): expands role of government in society and the economy; created Social Security, the Tennessee Valley Authority, and the Securities and Exchange Commission; expanded role and size of government

• Personal Responsibility and Work Opportunity Reconciliation Act (1996): Welfare Reform Act signaled change in national role with states, tried to increase role of personal responsibility in welfare recipients, shifted many responsibilities to state governments for welfare provision, ended federal entitlement status of welfare, replaced with block grants to states; recipients of grants had to work within 2 years and could not get benefits > 5 years

• Bipartisan Campaign Reform Act (2002): AKA McCain-Feingold Bill; banned soft money to national political parties and raised hard money limits to 2,000 dollars; SCOTUS struck down several parts of this law in Citizens United v. FEC, especially parts related to donations made by corporations

The President

The Formal Powers of the Presidency

• Article II, Section 2 of the Constitution

• Responsible for serving as the ceremonial head of state, handling foreign policy, and enforcing laws

• Administrative head of government

• Can force Congress into session, brief Congress on State of the Union, veto legislation

• Must cooperate with Congress (checks and balances)

• Can appoint federal judges, SCOTUS justices, ambassadors, and department secretaries that must be approved by the Senate

• Negotiates treaties that must be ratified by 2/3 of the Senate

• Executive agreements do not require Senate approval, agreements between country leaders

The President as Commander in Chief

• Commander in chief of the armed forces

• Only Congress can declare war, but president can make war

• Can mobilize armed forces

• Chief strategist and director of military

• Relies on Congress for money

• Gulf of Tonkin Resolution (1964): gave president broad powers to bring unlimited troops for unlimited time to Vietnam

• War Powers Act (1973): passed in an attempt to make president get congressional approval before making war, limiting president to 10,000 troops or 60 days and 30 additional days to withdraw

The Informal Powers

• Build morale

• Lead legislation and build coalitions

  • Set legislative agenda

  • Important when government is divided

• Chief of party

  • Influence on party’s agenda, issues, policy, strategy, and direction

  • Divided government: when the president and majorities in houses are not from the same political party

  • Unified government: when the house majorities and the president are from the same political party

• Persuade policy and communicate to Congress and the country

  • Bully pulpit lets the president speak with the American people and helps them to pressure Congress

• Theories about how the president chooses to use power:

  • Literalist doctrine: president only has the powers listed in Article II of the Constitution and should not use power that is not granted; not followed by any president 1920s

  • Stewardship doctrine: gives the president the ability to use power in multiple ways and arenas; free to use any power not denied to them by the Constitution; increases power of president

  • Unitary executive theory: gives executive branch nearly unlimited power to develop any policy that is necessary

Executive Office of the President

• Helps carry out president’s administrative responsibilities

• Made up of agencies involved in the White House, divided into domestic, foreign, and military areas

• Chief of staff: top aid to the president; very trustworthy and known for a long time; considered extremely powerful, manages Executive Office, controls access to president (+ information received by president)

• National Security Counsel (NSC): headed by national security advisor, direct access to president in situations related to the military or foreign policy; involved during national emergencies, free from congressional oversight, favored by president

• Domestic Policy Counsel: helps the president create policies related to agriculture, education, energy, natural resources, drug abuse, crime, health, the economy, and welfare

• Office of Management and Budget (OMB): prepares US budget and used to control/manage executive agencies; very powerful because it is able to fund cabinet departments and control the department’s effectiveness

• Council of Economic Advisors: helps the president make economic policy; made of economists to advise president

• US trade representative: negotiates trade and tariff agreements with help from the White House

The Cabinet

• Created through custom and usage, not by the Constitution

• Cabinet departments created by acts of Congress to control executive branch responsibilities

• Cabinet secretaries appointed by president + approved by Senate

  • Able to be dismissed by president

  • Run departments, carry out policies

  • Used to deflect criticism and explain/promote policy

  • Fight for their own department => friction between departments

    • Presidents don’t usually hold full cabinet meetings

• 15 cabinet departments in total (latest: Department of Homeland Security, created after 9/11)

Impeachment

• Gives Congress the ability to remove president for crimes

  • Crimes undefined by Constitution-- up to legislative branch to decide

• House of Representatives impeaches president (brings charges) by majority vote

• Senate holds trial with Chief Justice presiding if impeachment passes w/two-thirds vote to remove president

• Political disagreement over when impeachment should be used

  • Every impeachment has divided Congress between parties

• No president has been removed from office

  • House impeached Andrew Johnson for violating Tenure in Office Act, Senate fell one vote short of removing him from office

  • Watergate scandal caused Richard Nixon to resign before impeachment could begin

  • Impeachment of Bill Clinton for lying under oath was political, slim chance of Senate conviction

  • Donald Trump impeached for abuse and power and obstruction of Congress, but not convicted by Senate

• Federal judges can only be removed by impeachment and have lifetime terms

  • Only 8 have ever been removed

The Judiciary and the Law

American Legal Principles

• Equal justice under the law

• Due process of law

  • Substantive due process: whether laws are fair

    • Bill of Rights, 14th Amendment, Constitution

  • Procedural due process: whether laws are applied fairly

• Adversarial system

  • Both sides must be represented

  • Opposite = inquisitorial system

• Presumption of innocence

  • Innocent until proven guilty

Types of Law

• Most legal cases involve civil law or criminal law

• Criminal law involves crimes that harm others

  • Suspect arrested and to be indicted by grand jury (24-48 jurors, decide whether or not trial should begin

  • If accused is indicted they have the option of plea bargaining with the prosecution to agree to a less serious crime and sentence

    • Most cases end in plea bargains

  • State/US opposes accused in criminal trials

    • Prosecution should prove guilt beyond a reasonable doubt

    • Held before petit juries (12 people), decision known as verdict

      • Guilty verdict only returned if all 12 jurors vote to convict

      • Split jury = “hung jury”, results in a mistrial

• Civil law solves conflicts over custody, contracts, property, or issue of liability

  • Government is not involved unless it is being sued

  • No prosecution

  • Plaintiff vs. defendant in civil court

  • Case moves forward if judge/jury thinks complaint has merit, settlement is used to avoid trial

    • Settlement = how much each party is willing to give up

  • Plaintiff only needs to show that a preponderance of evidence favors their side (~51% of evidence)

  • Juries can be made of as few as 5-6 members

  • Winning can result in payment of monetary damages or equity (loser forced to stop doing something that was annoying or harmful)

Structure of Jurisdiction

• Federal courts responsible for interpreting/settling disputes from federal law

• State courts responsible for interpreting/settling disputes from state law

• Three levels of federal courts:

  • Federal District Courts: have original jurisdiction

  • Federal Circuit Court of Appeals: hear cases on appeal from District Courts

  • Supreme Court: hears appeals of cases dealing with the constitution from Circuit Courts and suits between states or cases involving foreign ministers

    • No jury

    • Collegial court - decisions made by 9 justices

    • Acts in appellate jurisdiction, can only decide issues of law and not facts of a case

• 94 Federal District Courts

  • Inferior to Supreme Court

  • Civil and criminal cases in original jurisdiction

  • Trial court that determines guilt/innocence is court of original jurisdiction

    • Heat evidence and use juries to decide verdict

  • dDecide liability in civil cases with monetary losses

    • Also have juries

    • Defendant can ask judge to decide a case, but a judge can refuse and force the defendant to have a jury trial

• 13 Circuit Courts of Appeals

  • Hear cases on appeal from Federal District Courts or state Supreme Court

  • Someone has to claim that a federal constitutional right has been violated

  • Decide issues of law and not fact

  • No juries - decisions made by panels of appointed judges

  • Court of last resort, Supreme Court almost never hears cases appealed from the Circuit Courts

  • Origins of most Supreme Court justices

The Politics of the Judiciary

• All judges are appointed by the president for life

• Must go through confirmation process in Senate

• Impeachment is only method of removal

• Appointments have become political

  • Some presidents have required potential appointees to fill out a questionnaire to determine political/judicial ideology

  • Nominees almost always of same party as president

  • In nomination hearings before Senate Judiciary Committee, both parties try to determine how appointees would rule in cases dealing with their issues

  • American Bar Association evaluates nominee’s qualifications and interest groups often show their opinions

  • Senators in a state where an appointee will sit have exercised senatorial courtesy - submit a list of acceptable nominees to president

    • Expected only when president and senators are the same party

  • Ideological changes in Court’s makeup has resulted in new precedents and rejection of old precedents

    • More precedents overturned since 1950s than in 150 years

    • Courts are seen as the least democratic, when they overturn an act of legislature they are overruling the people’s will

      • Judges who are hesitant to overturn legislature practice judicial restraint

      • Liberals see judges as constitutional interpreters who reflect the people’s values

      • Judicial activist: a judge who will readily overturn an act of legislature

Process by Which Cases Reach the Supreme Court

• Not part of the Constitution

• Supreme Court will not grant an appeal until all other opportunities in lower courts have been exhausted

  • Often refuses to hear appeal because it agrees with lower court decision

  • If 4 justices agree to review lower court’s decisions, court issues a writ of certiorari - document used to request lower court transcripts of case

  • Only rules in cases that involve an actual legal dispute (justiciable)

  • Places limits on who can bring cases before it - petitioner must have interest in case outcome (have standing)

Judicial Review

• Not in the Constitution

• Marbury v. Madison (1803):

  • Chief Justice John Marshall established judicial review

  • John Adams commissioned William Marbury as Justice of the Peace in DC in the last hours of his presidency, approved by Senate; President Jefferson ordered Secretary of state to not deliver commission

  • Article III, Section 2 of Constitution - what is the extent of the Supreme Court’s power regarding judicial review?

  • Ruled that the part of the Judiciary Act allowing the Supreme Court to grant the position of Justice of the Peace was unconstitutional

How the Court Hears Cases

• Both sides submit summaries of their arguments (briefs) and legal foundations

• Interest groups affiliated with both side of the case submit their own briefs

  • Amicus curiae briefs: effort to sway the justices, can be very influential

• From October to April, court hears oral arguments for cases

  • Lawyers for each party have 30 minutes to present their arguments before the justices

  • Federal government will often take one side, solicitor general can argue on the government’s behalf

    • Known as the “tenth justice”

    • Second-ranking member of the justice department

    • Often makes appearances before the high court

  • Justices meet for a secret meeting after the oral arguments, cast votes, and write opinions

    • Four types of opinions:

      • Unanimous opinion: all justices agree, carries most force in future legal cases, ex. Brown v. Board of Education

      • Majority opinion: the opinion with the most votes, decides the case

      • Concurring opinion: justices may vote with majority but take issue with legal reasoning

      • Dissenting opinion: written by justices in the minority, questioning the winning side

• Power of Supreme Court limited through:

  • Constitutional amendments

  • Judicial appointments/confirmations

  • Legislation that changes court jurisdiction

  • Legislation written to counteract Supreme Court decisions

  • President and states refuse to comply with Supreme Court decisions

The Bureaucracy

• Ensures that policies and programs created by Congress and executive branch are carried out

• Considered part of the executive branch

• Supposed to function above partisan politics

• Bureaucrats operate under merit system - hires and promotes people based on skills and experience

• 15 cabinet secretaries and heads of independent agencies appointed by president and approved by Senate

• Most people who work for the government work for one of the executive departments or other “cabinet level” agencies

• Department of Defense: largest department, administered by Secretary of Defense

  • Reports directly to president

• Each military service is led by a uniformed chief of staff

  • Work together as the Joint Chiefs of Staff, carry out defense policy and report directly to president and Secretary of Defense

• Policy implementation: primary role of the bureaucracy, determines the process for implementing policy once passed

  • Must act within constitutional limits and agency jurisdiction

  • Can develop rules to govern policies and procedures

• Secretary of department at head of each “pyramid”

  • Appointed by president, approved by Senate

  • Undersecretary is direct subordinate, appointed by president without Senate approval

  • Both undersecretary and secretary replaced at the end of president’s term

  • Personnel of Senior Executive Service below the secretaries, including appointed and non-appointed

    • Do not need Senate confirmation

    • Responsive to White House policy goals and help bureaucrats implement president’s policy preferences

Government Corporations

• Hybrid organizations, private business corporation + government agency

• Freedom of action and flexibility, produce revenue to support themselves

• Ex. Amtrak

• USPS was originally created as a cabinet position but has become a government corporation

• Corporation for Public Broadcasting produces and airs television and radio

  • PBS funding comes from private and government subsidies

  • Most programming related to public affairs, news, and culture

Regulatory Agencies and Commissions

• Not within 15 cabinet departments

• Two categories:

  • Independent agencies: generally normal bureaucracies with presidential oversight

  • Regulatory agencies/independent regulatory commissions: more independence, act as watchdogs over federal government; Congress and president are not supposed to interfere

• Writing legislation is complex and often beyond lawmakers’ abilities and expertise - often written in general terms with many gaps

  • Quasi-legislative agencies: independent agencies who fill in gaps and write rules

  • Quasi judicial agencies: rule enforcement, punish violators

• Bureaucrats often has answers for Congress

  • Asked for advice and expertise

  • Often ignored because of interest groups’ pressure

  • Write and enforce rules that regulate environment, economy, or industry

• Examples of regulatory agencies:

  • Federal Trade Commission: prevents fraud in marketplace, prevents price fixing and deceptive advertising

  • Securities and Exchange Commission: protects investors by regulating stock markets and preventing corporations from false and misleading claims of profits

  • Nuclear Regulatory Commission: controls how power companies design, build, and operate nuclear reactors

  • Federal Communications Commission: assign broadcast frequencies, license radio/TV stations, regulate use of wireless communication

  • Food and Drug Administration: inspect food supply, regulate sales of over-the-counter drugs and patent medicines

  • Federal Energy Regulatory Commission: prevent price fixing and price manipulation in energy

  • Occupational Safety and Health Administration: ensures a safe work environment for workers

Who Runs Regulatory Agencies?

• Run by Board of Commissioners (panels of administrators)

  • Appointed by president with Senate approval

  • Terms usually overlap president’s term, intended to minimize White House political pressure

    • Term is 3-14 years

  • Ex. Federal Reserve Board: policies affect public’s buying power - regulates banks, monetary value/supply, and interest rates

  • Policies can conflict with president’s policies

Who Controls the Bureaucracy?

• Political considerations always play a part in the appointment process, but presidents and boards/commissions vary regularly

• Rank-and-file bureaucrats are permanent, but they do not like political interference

• Presidents can promote supporters and use budget to change agency’s influence while in office

• More congressional power over bureaucracy than presidential

  • Senate affirms/rejects appointments

  • Congress can destroy agencies or change jurisdiction

  • Final say over funding

Rule Setting, Alliance Building, and Iron Triangles

• Regulatory agencies set rules and regulations that industry must follow

  • Participatory process, industry involved in determining rules

  • Hold public hearings for testimony and advice

  • Law requires agencies to consult with industry in most cases before rules/regulations can go into effect

  • Iron triangle: informal alliance made of three groups: particular industry + lobbyists, congressional committee dealing with that industry, and the agency that is affected

    • Groups that make iron triangle work together to create and implement policy

      • Lobbyists representing industries promote their agendas by claiming it is in the best interest of the American people

      • Special interests contribute money to congressional campaigns, large donators ask for help from representatives

      • Alliance/issue network: a close working relationship formed when issues affect many groups by pro/con coalitions of interest groups, Congress members, and bureaucrats

      • Regulatory agency writes/publishes rules after input and debate opportunities have been exhausted

        • Industry can sue regulatory agency if it objects to regulation

• Deregulation: removing government restrictions and regulations

  • Those in favor claim that competition of marketplace is all that is needed

    • Regulation is expensive and time-consuming

Civil Service and Maintaining Neutrality

• Civil service system: Office of Personnel Management is bureaucracy’s employment agency, administers civil service examination, publishes job opening lists, and hires based on merit

  • Established in 1883 by the Pendleton Act, which ended the patronage system (giving government jobs for political support)

  • Intended to create a competent, professional bureaucracy

  • Merit Systems Protection Board investigates charges of agency corruption, protects whistleblowers

• Hatch Act (1939): passed to ensure bureaucratic neutrality; permits bureaucrats right to vote but not the right to campaign for political candidates, run for office, or work for parties

  • Revision of 1993 is less restrictive - bureaucrats can join political parties, make campaign contributions, and display political advertising (buttons/bumper stickers)

    • Still cannot run for public office, solicit campaign funds from subordinates, or make political speeches