The Presidency and the Constitutions in American Government | POLS 1101, Study notes of Local Government Studies

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The Presidency:

The Presidency and the Constitution  One of the primary problems that occupied the Framers was how much power could they safely cede to the office of the presidency o Used to just be the president and VP—cabinet evolved into existence  Presidential authority o Offered the nation efficiency and decisiveness o But also, threat of tyranny o Wanted to have an individual exec branch to be a check against legislative branch (most powerful) Resolution of the Problem  To resolve the problem they... o Withheld nonessential authority from office (check on exec appointments) o And included legislative checks on executive prerogatives (vetoes, can be overridden with super majority of both houses)  The president’s constitutional powers do not add up to the forceful character of the modern presidency (started with FDR) The Modern Presidency  Sources of power (not from Constitution) o Congressional Delegation o Presidential assertions (push for new powers not listed in constitution, example: Jefferson buying Louisiana from France)  Formal vs. Informal Powers o The Power to Persuade—chief persuader, viewed as most important power, can push items onto legislative agendas INFORMAL Chief Executive- head of executive branch  President charged with faithfully executing laws passed by congress (implementing policy=policy making power)  As chief executive, President is head of the federal bureaucracy o Appointment powers—wants to appoint someone who thinks as he does  Cabinet Secretaries o Civil service jobs (can be based on party loyalty)  Executive Privilege o President’s right to withhold information from other branches (not applicable to illegal actions)  In existence since Washington  Executive Orders (not written in constitution) o These are formal instructions from the president to the bureaucratic agencies which have the force of law  Used to shape policy implementation

 Truman issued executive order to desegregate armed forces in 1947  Congress can break up exec orders through legislation, also new presidents can make new ones to get rid of old ones Chief Legislator/Lobbyist  The Constitution gives presidents only a modest role in the legislative arena o May call Congress into special session  Day after pearl harbor was attacked o Veto laws o Must report “from time to time” to the congress on the state of the Union  Done in January in front of both houses  Promoting a legislative agenda o State of the Union Address/Press opportunities o Submission of Federal Budget The Veto  Rarely used but highly effective o Average is fewer than 10 vetoes a year o Negative legislative power o President can allow bill to come into law without signature (2 weeks), can sign bill into law, or veto o Congressional override of veto, both houses must pass with 2/3 vote (super majority)  Line-item Veto-president can go through an appropriation bill (spends money), usually have plenty of lines, president can take out lines and then sign into law  Case: Clinton and mayor of New York, unconstitutional b/c it gives the president legislative powers that are not his  Many state governors have line-item veto power Head Diplomat  The Framers provided the president with broader authority to transact diplomatic affairs than to transact domestic ones o Treaty Negotiation  2/3 vote in senate required for ratification o Executive Agreements  Not as powerful as a treaty  Cannot supersede US law, and it remains “in force” as long as both parties find their interests served by it (allows president to bypass congress) o Diplomatic Recognition o Appointment of Diplomats  If you want to be an ambassador give a winning presidential candidate A LOT of money

o Represents US at Summits/International Meetings  G-8, NATO Commander-In-Chief (formal constitutional duty)  Framers provided a check: only Congress can declare war (only done 5 times) The War Powers Act (1974)  Allows the President to commit US forces in the absence of a declaration of war: o To repeal an armed attack on the US o To repeal an armed attack against US forces abroad o To protect US citizens in foreign nations  If US forces are committed: o Commitment must be reported within 48 hours to Congress o Involvement can last no longer than 60 days without specific Congressional approval o Congress can extend commitment by resolution (piece of legislation that does not require the signature of the president)  The impact of this law has been limited.  Presidents have continued to take military action without informing Congress or have relied on support from Congress through resolutions Chief of State  Ceremonial/Symbolic Role o Expectations: showing up following disasters, lighting of the Christmas tree, pardoning of the turkey, attending funerals  Other nations divide duties between a head of government and head of state o Great Britain  Queen=head of state  Prime Minister=head of government Party Chief (informal)  Head of respective political party o Fundraising o Campaigning Formal Requirements  Natural-born citizen (can be born on a military base)  35 years of age  US resident for 14 years Terms of Office  No term limits in the original constitution  22 nd^ Amendment o Two terms of office o Limited to one term if VP succeed to office and serves at least two years of former President’s term

Succession/Incapacitation  25 th^ Amendment o If a president is removed, dies, or resigns VP assumes office  A new VP is nominated by the former, with conformation by majority of both houses o If President becomes incapacitated, VP will become acting president when he and a majority of cabinet notify Speaker and President Pro Tempore Removal from Office  Impeachment o Starts in House  Indictment (just takes one article of impeachment, but there can be more than 1)  Simple majority to bring a charge of impeachment against the President o Senate  Trial (chief justice comes over to preside)  2/3 vote to convict President of charge (only have to be guilty of one article) The Executive Branch Center of Government  World Power (growth is post WWII) o Leading role in international affairs  Growing scope of governmental involvement o Economic Affairs  Growth of Executive Branch Bureaucracy  Evolution of Mass Media  Congressional delegation of authority to President The 19th^ Century Presidency  Played relatively small role in nation’s affairs o Limited primarily to the area of foreign affairs o Domestic policy dominated by Congress Emergence of the Institutional Presidency  Brownlow Committee Report (1937) o Conclusion: the President needs help to carry out his role as chief executive o Business/CEO Model o Formal constitution authority ignored Executive Office of the Presidency  Typically 10 agencies that, together, with the White House office, make up the EOP.

 They work primarily with the president and his White House staff rather than with each other.  They perform classic staff functions: o Gathering information (e.g., National Security Council, OMB) o Maintaining the organization of the Executive Office itself (e.g., Office of VP) The Chief Executive of Georgia  The Governor  Background o The 1983 Constitution o Fragmented Plural Executive (Lt. Governor, Attorney General, etc, are elected separately. Diminishes the power of the executive)  Term of Office o Two consecutive four-year terms with no lifetime restriction Formal Powers  Legislative Powers o Veto (2/3 vote in both house to override) o Line-item veto o Can Call Special Sessions  Message Power (State of the State Address)  Appointment Powers (can shape policy through this appointments)  Budgetary Powers o Budget Preparation o Sets spending caps

The Bureaucracy:

Development of the Federal Bureaucracy  The constitution and the executive branch organization (congress is in charge of the organization of the executive branch)  The dilemma of delegation (congressional oversight of the executive is easily the 2 nd^ most important job of the congress) o Advantages o Disadvantages  The resolution o Delegation with institutional controls  The power of the purse The Spoils System  Described the Federal Bureaucracy during most of the 19th^ century  Employment was based on partisan loyalty  The Beginnings of bureaucracy

Characteristics of Bureaucracy  According to Max Weber, bureaucracies embody: o Hierarchical structures (chain-of-command; triangle models) o A division of labor/specialization o A consistent set of abstract rules (spell out what tasks are to be carried out, who does those tasks, etc) (one place bureaucracy gets a bad name, overwhelming amounts of rules) o Impersonality (neutrality) o A career system (merit-based) o Specified goals Civil Service Reform  Increasingly complex problems o Short-term amateurs  Government reform was called for by the public (assassination of pres. Garfield by member of bureaucracy)  The Pendleton Act 1883 o This law provides the basis of the modern civil service o Employment based on the competence, neutrality, and protection from partisanship o There are still some political bureaucrats, but most are civil service employees Bureaucratic problems of another sort  Career civil service led to its own problems: o Productivity (difficult to gauge)  Difficult to reward or punish civil servants  Difficult to punish because of amount job security o Responsiveness  Hiding among the layers of bureaucracy and mountains of red tape o Power to obstruct policy  Development of personal/institutional interests  Expertise can shield actions from external oversight Bureaucratic Employees  Political Appointees: (top of pyramid model) o Few in numbers o Appointed by president, approved by congress by a simply majority o Short-term employment o Hired based more on political position (who you know) than merit or expertise o Make policy, advise the president  Civil Service Employees o Bulk of bureaucratic employees o Great deal of job security

o Hired based on merit (what you know) Executive Branch organization (picture drawn in notes) The Earliest Departments  Original: Treasury, State, Navy, and War o Attorney General (had no agency, now heads up the Dept. of Justice)  Department of the Interior (1849, just prior to Civil War) o Made to issue plots of land in the interior of the US o Native Americans  Dept. of Justice (1879) o Expansion of law enforcement (FBI) Clientele Agencies  Dept. of Agriculture (1889)  Dept. of Labor (1903)  Dept. of Commerce (1903) o Census Bureau Military Establishment  The Dept of Defense (1974) o Devised to achieve unified command of all military forces Extension of the Federal Domain  Dept. of Health, Education, and Welfare (1953) => Health and Human Services (1979)  Dept of Housing and Urban Development (1965)  Dept of Transportation (1966)  Dept of Energy (1977)—responsible for interstate transportation of nuclear weapons The symbolism of the Cabinet status  The creation of the dept of education (1979) and veteran affairs (1988) were almost entirely symbolic Dept of Homeland Security  Cabinet level dept  Combines approximately 170,000 federal employees from 22 existing agencies  Functions: o Intelligence analysis and infrastructure protection o Border protection and immigration o Comprehensive response and recovery Intelligence Reform  Director of National Intelligence o Coordinates activities of all 15 Intelligence Agencies

 Including the CIA, DIA, FBI, State Dept. o Principal Intelligence Advisor to the President Independent Executive Agencies  Independent of departments  If created by the president, generally more responsive to presidential needs o NASA o EPA Independent Regulatory Commissions  Designed to maintain their independence from the president and the executive depts., and sometimes Congress  Typically, run by Board for Commissioners o Presidential appointment, Senate Approval o Fix staggered terms of no less than 5 years  Over the years, the government’s regulatory reach expanded in roughly 3 ways o Economic Regulation (I)  Interstate Commerce Commission  Federal Reserve System  Trust busting o Economic Regulation (II)  Federal Deposit Insurance Corporation  Securities and Exchange Commission o Social Regulation (III)  National Transportation Safety Board  Equal Employment Opportunity Commission (civil rights act) Government Corporations  Agencies designed to deliver goods and/or services: o U.S. Postal Service o Amtrak o Tennessee Valley Authority Bureaucratic Power  Policy Implementation  Regulation (Quasi-Legislative, are allowed to write rules and regulations for implementing policy) o Development of formal rules  Adjudication (Quasi-Judicial) o Decisions concerning compliance in individual cases (can levy fines)  Administrative Discretion Bureaucrats as Politicians  Bureaucrats are politicians.  Operational Environment  Goals and the Political Process

o Budget process, involves president and congress  Most important relationship: congress, particularly a specific committee or sub committee (not the president) Iron Triangles (symbiotic relationship)  Policy alliances consisting of: o A Congressional Committee/Subcommittee o A Bureaucratic Agency o An Interest Group  Examples: o Agriculture o Defense  Defense contractors The President and the Bureaucracy  Position in Executive Branch  Realities of Influence/Control- the president doesn’t have much control over the agencies, congress has more The Power of Appointment  Presidential Appointment o Senior bureaucratic officials  Senate approval o Simple majority Mechanisms for Presidential Supervision  Office of Management and Budget (OMB) o Location: Executive office of the president o Duties:  Agency Budgets  Rule Making Congressional Oversight  Responsible for executive branch organization: o Can create or abolish departments/agencies o Can transfer functions (reorganization of existing depts.)  Can control policy implementation via legislation (discretion)  Determination of agency budgets  Conformation of Presidential appointments  Hearings and investigations  Mandatory reports on programs  Legislative vetoes on agency policy proposals (L.V. has been ruled unconstitutional, but many are still written into legislation, example: you can do X, but before you do X you must do ____)  Committee and conference reports that provide instructions to agencies

 The General Accounting Office (GAO) which audits programs and agencies (housed in the legislative branch, under congress control, not president)  The Congressional Budget Office (counterpart of OMB, but works for congress, not president)

The Federal Judiciary:

Powers of the Federal Judiciary  Judicial Review (most important) o The power of the Federal courts to declare federal or state laws or actions of the President unconstitutional and invalid o Not specifically mentioned in the Constitution o Established in the case Marbury v. Madison (1803)  Created the foundation of the courts’ power of judicial review  Election of 1800, John Adams (federalist) loses to Jefferson (democratic-republican), Federal party majority in congress. Adams appoints lots of federalists to jobs before Jefferson is sworn in. Adams’ secretary of state is Marshall. Jefferson comes into office with new secretary of state, James Madison. Marbury was a Federal appointee who didn’t get his place because Jefferson came in before Marshall could deliver. John Marshall is now the Chief Justice of the Supreme Court.  The Judiciary was in a very tenuous situation—by far the weakest of the 3 branches.  Choices:

1. Court orders the Jefferson Administration to deliver the appointment
2. Court denies Marbury his appointment and sides with Jefferson  Decision: The court declares the a portion of the Judiciary Act of 1789 unconstitutional—first use of judicial review o Question of original jurisdiction o The Constitution only gives the Supreme Court original jurisdiction in the very limited areas:  A case between 2 or more states  A case between the US and a state  A case between a state and citizens of another state of foreign aliens  A case involving ambassadors, other public ministers, consuls, or vice consuls of foreign states Judicial Review  Since Marbury, over 130 federal laws have been declared unconstitutional o Internet Indecency Act

o Flag Desecration Act  Far more frequently the SC has invalidated state law o Segregation laws Powers of the Federal Judiciary  Statutory Interpretation o The power of the Courts to interpret federal laws o Example:  Federal bankruptcy laws are designed to protect retirement funds from creditors  Does this protection extend to 401(k) savings accounts where funds can be withdrawn at any time?  In 2005 the Court answered yes. Federal Court Structure  The Supreme Court (Court of Last Resort)  Courts of Appeals (Appellate Jurisdiction)  District Courts (Original Jurisdiction)—this are the most numerous o Lower courts are established by Congress  Only the Supreme Court is explicitly mentioned in the Constitution  Judicial Structure : determined by Congress  Judiciary Act of 1789  The federal judiciary is organized as a 3-layer pyramid  Base: 94 District Courts staffed by 632 justices o Trial Courts o Every state has at least one district court; the 3 largest states have 4 o These trial courts deal with 3 types of cases: criminal, civil, public law  Public—individual files suit against a federal administration  Civil are the most likely to be heard on a federal level (4:1 ratio)  Courts of Appeals o 11 circuits o 179 judges/3 judge panels  Eleven separate geographic regions (circuits) cover the 50 states  DC: 12th^ circuit  US Court of Appeals for the Federal Circuit: 13th^ circuit (has nationwide jurisdiction)  Court of Final Appeal  Appellate Jurisdiction o Lower Federal Courts (circuit courts) o State Supreme Courts  Hears between 150-200 cases per year  Degree of control over Judicial System? o Decentralized o Geographically Dispersed

o Administered by life-tenured judges Limits of Administrative Control  Passive Agent  Even when the Supreme Court disagrees strongly with the lower court’s decision, it cannot countermand the decision. o One of the litigants has to appeal the decision before the Court can assume jurisdiction  The Supreme Court may also have trouble enforcing implementation of its decisions in the lower courts Judicial Activism vs. Restraint  Judicial Activism o The Court is a Policymaking body o New laws are formulated via judicial interpretation o The Constitution is a living document o Room for activism?  Supreme Court chooses it’s own cases (docket)  No electoral accountability/tenured for life  No ambition for higher office  Judicial Restraint o Broad interpretation of the Constitution should be avoided o Judges/justices should not impose their own values on the interpretation of existing laws o Justices should be non-partisan/non-political o Evidence of restraint?  Plain meaning  Intent of the framers/lawmakers  Reliance on Precedent ( Stare Decision )  Latin for “let the decision stand” Conclusions  The Courts are not “neutral” and “above politics”  Like the President, Congress, and the Bureaucracy they make policy, and are involved in politics  Evidence of Activism o The Attitudinal Model  Justices’ Attitudes => votes  Voting patterns are, in part, explained by personal characteristics  Ideology, partisanship, religious background, education  Judicial Activism/Restraint is not related to ideology Judicial Selection  Appointment o President o Qualifications?

o Senatorial Courtesy (where the rep. president would go to rep. congressmen and ask if they are for or against they possible appointee)  Confirmation o Senate (simple majority)  Term o Tenured for Life o Impeachment is possible The Courts and Representation  Least representative branch of government in terms of descriptive representation  Supreme Court o Only two black Americans, 3 women, and one Hispanic have been appointed throughout the history of the Court Constitutional and Statutory Control  Judicial selection (totally dependent on the president)  Impeachment  Statute Reformulation  Constitutional Amendments  Judicial Organization (controlled by Congress, # of justices) The Federal Judiciary and National Policymaking  Who guards the guardian?  There are limitations o Constitutional limits o Internal, organizational weaknesses of the judiciary o Public opinion The Georgia Judiciary—General Structure  Court of Last Resort (appellate jurisdiction)= Georgia Supreme Court o Intermediate Appellate Court (appellate jurisdiction)= Court of Appeals (only 1..not divided into circuits)

1. A. State Trial Courts (general jurisdiction)= Superior Courts ( circuits)
2. B. State Trial courts (limited jurisdiction)= State Courts, Juvenile Courts, Probate Courts (wills and estates), Magistrate Courts
3. C. Local County Trial Courts (limited jurisdiction)= Municipal Courts Court Characteristics  Georgia Supreme Courts o 7 Justices (Six Justices + Chief Justice) o 6 year staggered terms  Court of Appeals o 10 Judges (3 divisions + Chief Judge)

Methods of Judicial Selection  Partisan Elections  Non-Partisan Elections (GA)  Merit Selection (Missouri Plan) Governor picks judges that are nominated by a committee, then later they must be re-elected by the population  Gubernatorial Selection  Legislative Selection Methods of Judicial Selection—Georgia  Non-partisan Elections o Supreme Court, Court of Appeals, Superior Courts, State Courts  Other: Appointment/Partisan Election  Gubernatorial Appointment, then reelected at the next cycle o Vacancies from resignation, retirements, or deaths. Or the creation of new courts/positions

Presidential Elections:

Timeline  Invisible Primary o Following midterm through the Iowa Caucus  Primary Season o January of election year through mid-summer  General Election Season o Mid-summer through election day in November Invisible Primary  Fundraising—need money during the primary cause there is no time to fundraise by that point  “Honing” their message  Travel and Visibility  Debates Primaries  Both parties instituted major rule changes in 1972  Delegates are collected by one of 2 methods: o Primaries (34) o Caucuses (20)-more intensive, you attend a meeting.  Territories can participate in primaries but do not have any electoral votes  Frontloading Primaries o Helps out well-known candidates o Helps out well-financed candidates  Democratic Primary o Proportional Allocation

 Pledged (80.4%) o Superdelegates  Unpledged (19.6%)  Republican Delegates o Winner-Take-All Electoral College  Win a majority of Electoral College Votes o Number of Congressional Seats in a state + 2 senate seats o Total 538 (D.C. allocated 3 electoral votes) o Allocation:  Winner-Take-All  Maine and Nebraska use at district system o The Electoral College is malapportioned.  It is possible to win a majority of electoral votes without winning the popular vote o 1876, 1888, 1960, 2000  If neither candidate wins a majority of electoral votes the election is decided in the House with each state voting as a block o Contingent Election o 1800, 1824 Electors  Just who are these people? o Anyone who doesn’t hold federal office  The Problem of Faithless Electors (doesn’t happen very often) Electoral College Strategies  Large States and/or  Swing States (Battleground States)—Ohio #  Campaign effects related to the Electoral College System Proposed Electoral College Reforms  Automatic Plan-if you win popular, you get all electoral votes from state  District Plan-if you win in the district, you get the electoral votes from that voting district and the party getting the most electoral votes gets the 2 from the senate  Proportional Plan- electoral votes are given on a percentage basis=you win 30% of the state and you get 30% of the electoral votes  National Bonus Plan-add 102 electoral votes to the college and whoever wins popular votes gets those 102  Direct Election with Run-off o If no candidate receives at least 40% then have run-off  Direct Election without Run-off