Institutions+of+Government

= = =__ Unit 4 - Institutions of Government __=

** EXECUTIVE BRANCH ** No dates. Just items to look at and prepare for our assessments(1 or 2 quizzes and exam May 8). __**TKO's are listed below.**__

READINGS:
Intro and Basics pages 271-278

Powers of the President pages 278-285

Presidential Power 285-305

VIDEOS:
**The Executive Branch Pt. 1:** [] **The Executive Branch Pt. 2:** [] **Article II for Dummies:** []

**22nd Amendment:** []

**__ Power Points: __**


Others:

[[file:President1.pptx]]
=The Executive Branch - Chapter 8 =

Executive Branch TKO's - To Know Objectives

 * Constitutional Basics – Article II. Age, term, citizen, resident, means of election, powers, Amendments 22 &25.
 * Identify the key roles of the White House Staff and explain why the President chooses the people that he does.
 * Explain the functions of the presidential veto, as well as why the line-item veto was ruled unconstitutional for presidents.
 * Describe the ways that the President influences Congress to pass legislation.
 * Explain why the Congress looks to the President for leadership in the area of foreign policy.
 * Differentiate between an executive order and an executive agreement. Why have they been used more?
 * Define divided government, as well as explain its potential consequences.
 * Describe how a presidential candidate chooses a vice-presidential running mate.
 * Explain the ways that the President can influence the federal judiciary.
 * Assess both the formal and informal presidential powers. Explain why presidential power has increased.
 * Summarize the impeachment process.
 * Identify and state the significance of the War Powers Act of 1973.
 * Identify the federal offices that require advice and consent of the Senate. Identify the powers that the President shares with the Senate.
 * Define executive privilege.
 * Assess the roles of the Cabinet and the heads of these executive departments.
 * Explain why the President has relatively little power over his cabinet.
 * Who makes up the Executive Office and the White House Office? What makes them so powerful?
 * Identify and state the significance of the president’s bully pulpit.
 * What is the significance of a presidential signing statement?
 * Summarize the trends of presidential popularity throughout presidencies.
 * Identify and state the significance of the court case //U.S. v. Nixon// (1974)//.//
 * Identify and state the significance of the Budget and Impoundment Act (1974).
 * Describe the role of the Vice-President.
 * Articulate the concept of presidential succession.
 * What shapes a president’s personality? Consider character, world view, and style.
 * How have presidential personalities been classified? What are examples?
 * How do interest groups influence the executive branch?

**THE PRESIDENCY AND THE EXECUTIVE BRANCH**
When the founders created the three branches of the government, they disagreed about the amount of power to be vested in the executive. Many feared more than anything a strong president whose powers could be compared to those of the king of England. Others believed, in the words of Alexander Hamilton, that "energy in the executive is a leading characteristic of good government." As the modern presidency has evolved, Hamilton's point of view seems to prevail today, as the president is the single most powerful individual in the American political system. Although the checks and balances set in motion in 1787 still operate, the presidency described in the Constitution is much different from the one that we have today.

THE EVOLUTION OF THE PRESIDENCY
Constitutional provisions limited the early presidency, although the personalities of the first three presidents ö George Washington, John Adams, and Thomas Jefferson shaped it into an influential position by the early 1800s. However, all through the 1800s up until the 1930s, Congress was the dominant branch of the national government. Then, in the past seventy years or so, the balance of power has shifted dramatically, so that the executive branch currently has at least equal power to the legislative branch. How did this shift happen? Article II of the Constitution defines the qualifications, powers, and duties of the president and carefully notes some important checks of the executive branch by the legislature. The Constitutional powers and duties of the president are very limited. Those specifically granted are as follows: According to Article II, Section One, the president holds "the executive power" of the United States. The "executive" was meant to "execute", or administer the decisions made by the legislature. This phrase at least implies an executive check on the legislature, and in fact, has been the source of presidential power over the years. á **Military power** - The president is commander in chief of the armed services. The intention of the founders was to keep control of the military in the hands of a civilian, avoiding a military tyranny. In Madison's words (Federalist No. 51), "Ambition must be made to counteract ambition." As commander in chief, the president has probably exercised more authority than in any other role. Although Congress has the sole power to declare war, the president can send the armed forces into a country in situations that are the equivalent of war. Congress has not officially declared war since December 8, 1941 (one day after the attack on Pearl Harbor), yet the Country has fought wars in Korea, Vietnam, and the Middle East. Congress attempted to control such military activities when it passed the **War Powers Resolution** in 1973, requiring the president to consult with Congress when activating military troops. The president must report to Congress within forty-eight hours of deploying troops, and unless Congress approves the use of troops within sixty days or extends the sixty-day time limit, the forces must be withdrawn. Even so, the president's powers as commander in chief are more extensive today than they have ever been before.
 * THE PRESIDENCY IN THE CONSTITUTION**
 * Qualifications**
 * The president must be a "natural-born citizen." Only individuals born as citizens may seek the presidency; all others are excluded from consideration. This provision has become controversial in recent years, with a movement backing California Governor Arnold Schwartznegger, a naturalized citizen, for president. Recent Secretaries of State Madeline Albright and Henry Kissinger were also unqualified for the presidency under this constitutional provision.
 * The president must have lived in the United States for at least 14 years before his election, although the years don't have to be consecutive.
 * The president must be at least 35 years old (in contrast to a minimum age of 30 for a senator and 25 for a representative). This provision has never been seriously challenged, since presidents tend to be considerably older than 35. The youngest presidents were Theodore Roosevelt and John F. Kennedy, who both took office at the age of 43.
 * Powers and Duties**
 * ** Diplomatic power ** -The president makes treaties with foreign nations, but only with the "**advice and consent**" of the Senate. Two-thirds of the Senate must approve a treaty; a president's signature is not enough to make it binding. This provision is a check of the executive by the legislature. However, presidents have gotten around this provision by using **executive agreements** made between the president and other heads of state. Such agreements do not require Senate approval, although Congress may withhold funding to implement them. Whereas treaties are binding on future presidents, executive agreements are not. The Constitution also gives the president the power of **diplomatic recognition**, or the power to recognize foreign governments. When twentieth century presidents have withheld this recognition, it has often served as a powerful comment on the legitimacy of governments. For example, the U.S. did not recognize the U.S.S.R. government created in 1917 until the 1930s, nor did the president recognize the People's Republic of China (created in 1949) until the early 1970s.
 * ** Appointment power ** - The president appoints ambassadors, other public officers, and judges of the Supreme Court, but again, only with the **"advice and consent"** of the Senate. Two-thirds must confirm the appointments. The president may appoint many lower positions without Senate approval, but those positions are created and defined by Congress. The appointment power is generally limited to cabinet and subcabinet jobs, federal judgeships, agency heads, and about two thousand less jobs. Most government positions are filled by civil service employees, who compete for jobs through a merit system, so presidents have little say over them. Presidents generally have the power to remove executives from power, with a 1926 Supreme Court decision affirming the presidentâs ability to fire those executive-branch officials whom he appointed with Senate approval. Judges may be removed only through the impeachment process, so presidents have little power over them once they have been appointed.
 * ** Veto power ** - A president can veto a legislative bill by returning it, along with a veto message or explanation, within ten days to the house in which it originated. Congress in turn may override the veto by a two-thirds vote. The president may also exercise the pocket veto. If the president does not sign the bill within ten days and Congress has adjourned within that time, the bill will not become law. Of course, the **pocket veto** can only be used just before the term of a given Congress ends.

STRENGTHENING THE PRESIDENCY
From the very beginning, informal influences have shaped the presidency. The framers almost certainly fashioned the president in the image of George Washington, the man unanimously selected to first occupy the office. Washington's qualities of wisdom, moderation, and dignity defined the more formal duties and powers, and his nonpartisan attitudes created expectations for behavior in presidents that followed. Other strong presidents have contributed to the presidency as it exists today, such as Andrew Jackson, who first used the veto power extensively; Abraham Lincoln, who carried the meaning of "commander in chief" to new heights during the Civil War; and Franklin Roosevelt, who formulated sweeping New Deal policies that were finally checked by the Supreme Court. Many informal qualifications, powers, and duties of the president have evolved that are not mentioned in Article II of the Constitution.

**Executive Privilege**
The Constitution says nothing about presidential rights to keep private communications between himself and his principal advisers, but presidents have traditionally claimed the privilege of confidentiality **executive privilege**. Their claim is based on two grounds. Even though Congress has never liked executive privilege, the right was not questioned seriously until 1973 when the Supreme Court addressed the issue directly. As a part of the Watergate investigations, a federal prosecutor sought tape recordings of conversations between Richard Nixon and his advisers. Nixon refused to give the tapes over, claiming executive privilege. In **//United States v. Nixon//** the Court held that there is no "absolute unqualified presidential privilege of immunity from judicial process under all circumstances." In this case, executive privilege would block the constitutionally defined function of federal courts to decide criminal cases. Executive privilege has been further defined by **//Nixon v. Fitzgerald//** (1982), which states that presidents cannot be sued for damages related to official decisions made while in office. In 1997 President Clinton tried to extend this protection to cover all civil suits, but in **//Clinton v. Jones//** the Court ruled against his argument that civil suits against a chief executive distract him from presidential duties. These decisions have restricted executive privilege, but they have not eliminated it. In all cases the Court has assumed that the president has the right of executive privilege. The founders had no way of knowing the evolutionary importance of the symbolic and morale-building functions a president must perform. People turn to their presidents for meaning, healing, assurance, and a sense of purpose. This function is particularly important during times of crisis, such as the period following the attacks on the World Trade Towers and the Pentagon on September 11, 2001. The president is expected to help unify the nation, represent our common heritage, and create a climate that encourages diverse elements to work together. The Constitution provides the basis for the important power of **agenda setting** ö or determining policy priorities - for the nation. According to Article Two, Section Three, "He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient." Even though Congress is charged with passing legislation, the president is expected to make policy proposals in many areas. Presidents often initiate foreign policy, economic goals and plans, and programs that improve the quality of life of citizens. Franklin Roosevelt set a precedent when he shepherded his New Deal policies through the legislature, taking responsibility for programs to get the country out of the Great Depression. Sometimes initiatives are outlined as campaign issues and are refined by the executive office staff, special task forces, and by Congress. For example, President George W. Bush introduced Social Security reform in the 2000 presidential campaign, an issue that he promoted as president, especially after his reelection in 2004. Initiatives may fail, as did President Clinton's health care proposals in 1993. Presidents generally have more leeway in foreign policy and military affairs than they have in domestic matters, largely because the founders anticipated a special need for speed and unity in our relations with other nations. An effective president is a good politician, a mobilizer of influence in the American political system. Because his formal powers are limited, he must spend much time persuading people to support his agenda. The president's persuasive powers are aimed at three audiences: fellow politicians and leaders in Washington, party activists and officeholders outside Washington, and the public, with its many different views and sets of interests. All three audiences influence the decision-making process, and the president has the visibility and power to persuade them to listen to his priorities. A powerful president is often at the center of the give-and-take negotiations among these groups, and an effective persuader can be the catalyst that makes its all work.
 * separation of powers keeps one branch from inquiring into the internal workings of another branch.
 * Presidents and advisers need the assurance of private discussions to be candid with one another without fear of immediate press and public reaction. This need for privacy is especially important with matters of national security.
 * Impoundment of Funds**
 * Impoundment ** is the presidential practice of refusing to spend money appropriated by Congress. Although many previous presidents impounded funds, the test case came with Richard Nixon. A major goal of his administration was to reduce federal spending, and when the Democratic Congress passed spending bills, he responded by pocket-vetoing twelve bills and then impounding funds appropriated under other laws that he had not vetoed. Congress in turn passed the **Budget Reform and Impoundment Act of 1974** that required the president to spend all appropriated funds, unless Congress approved the impoundment. Federal courts have upheld the rule that presidents must spend money that Congress appropriates.
 * The President as Morale Builder**
 * Agenda Setting**
 * The Power of Persuasion**

** Executive Orders **
Congress allows the president to issue **executive orders** that have the force of law. These executive orders may enforce the Constitution, treaties, or legislative statutes, or they may establish or modify rules and practices of executive administrative agencies. The only restriction on executive orders is that they must be published in the //Federal Register//, a daily publication of the U.S. Government.

** The Changing Veto Power **
In recent years many critics have suggested a **line-item veto** reform that would allow presidents to veto sections of bills without rejecting the whole thing. Congress passed the Line-Item Veto Act in 1996, which allowed the president to veto sections of appropriations bills only. When President Clinton exercised this new provision, the law and the presidentâs action were challenged in //Clinton v. City of New York// (1997). The Supreme Court ruled both the law and the action unconstitutional, criticizing them for permitting the president to construct legislation ö an abuse of the principle of separation of powers.

**PRESIDENTIAL CHARACTER**
Just as early presidents were held to the standards of Washington's personal qualities, modern presidents are judged in terms of the public perception of their personality and character. In his book **//The//** //**Presidential Character**//, Professor James Barber assessed presidents by two character-based criteria: He concluded that these basic personality characteristics shape a president's approach to his job and largely determine important decisions. For example, Franklin Roosevelt's positive, activist character forged the New Deal programs and U.S. foreign policy during World War II. Likewise, Richard Nixon's negative, activist character made it difficult for him to mobilize support from Congress, the media, and the public, even though he actively pursued his ambitious foreign policy goals. A passive, positive president, such as Gerald Ford, may be genial and well liked, but the lack of aggressive goals and administration of policy make his presidency an undistinguished one. Scholars disagree over whether Barber's theories work, but few deny the importance of personality and character in presidential decisions.
 * active vs. passive inclinations
 * positive vs. negative points of view

**THE ISSUE OF GRIDLOCK**
Over the past fifty years, a significant trend has developed: **divided government**, or a government in which one party controls the White House and a different party controls one or both houses of Congress. Until 2003, only two exceptions occurred. Between 1993 and 1995, the Democrats controlled both branches, and for a few months in early 2001, when the Republicans briefly dominated. However, with the midterm election of 2002, Republicans gained control of both houses, putting both branches under Republican control. The election of 2004 affirmed this arrangement, leading many to speculate that a new Republican era was dawning. Many people criticize divided government because it produces "**gridlock,"** or the inability to get anything done because the branches bicker with one another and make decisions difficult. A unique illustration of gridlock occurred in 1995 and 1996 when Congress and the president could not agree on the federal budget, thus shutting down many government operations, including national parks and federal offices, until an agreement could be reached. Even though gridlock may slow the process of decision-making, some supporters of divided government believe that it is not necessarily bad because better balanced policies may result. Others believe that a unified government is a myth, with struggles between the branches a natural part of the give and take of checks and balances. In this scenario, gridlock is just as likely to occur when one party controls both branches as it is when a "divided government" exists. Democratic filibusters in 2003 and 2004 against judicial nominees put forward by President George W. Bush support the notion that gridlock between the branches is an ongoing process. Just as the power of the presidency has grown tremendously in recent years, so have the numbers of people that surround him in high-level jobs in the executive branch. George Washington began his first term with only his nephew to help him with office work. Washington paid even that salary out of his own pocket. Today many advisors in the White House Office, the cabinet, and the Executive Office assist the president in his work. The vice president and the ãfirst ladyä also have large staffs that complement all the presidentâs aides.
 * OTHER IMPORTANT MEMBERS OF THE EXECUTIVE BRANCH**

THE VICE-PRESIDENT
"I do not choose to be buried until I am already dead." A nineteenth century presidential hopeful, Daniel Webster, declined the vice presidency with the above words, expressing a sentiment repeated by many vice presidents over time. The founders paid little attention to the office and assigned it only two formal duties: The most important function of the vice president is to take over the presidency if the president is unable to fill his term. That has only happened nine times in history, but of course, the vice president must be qualified to take over the presidency. A vice president's role in any administration is almost entirely up to the president. Although the original constitution designated the runner-up for the presidency as the vice president, the **12th Amendment** was passed in 1804, which provided for electors to vote for a president/vice-president slate. Traditionally, a presidential candidate chooses a vice presidential partner, usually based on a "balance" to the ticket (region, age, popular base, party subgroup). In recent years, presidents have given more and more important duties to vice presidents. They often represent the president for important ceremonies, sit on boards or projects, and advise him on major, sometimes specialized, issues. For example, Vice President Al Gore advised President Bill Clinton on environmental issues and headed a national review of the federal bureaucracy. President George W. Bush has involved Vice President Dick Cheney in many policy areas, including those shaped in reaction to the terrorist acts of September 11, 2001. The vice president is often considered as a presidential candidate when the President's term expires, although George H. Bush was the first Vice President to succeed immediately to the presidency since Martin Van Buren succeeded Andrew Jackson in 1837. Even though a vice president may receive his partyâs nomination, he doesnât always win the general election. Examples include Richard Nixon in 1960, Hubert Humphrey in 1968, Walter Mondale in 1984, and Al Gore in 2000. Some of the most influential people in government are in the presidentâs White House Office. The organization of the staff is entirely up to the president, and their titles include ãchief of staff,ä "counsel," "counselor," "assistant to the president," "special consultant," or ãpress secretary.ä These aides are appointed by the president without Senate confirmation, and they may be fired at will. Often they do not serve an entire presidential term. The organization of the White House Office has been analyzed according to two models: The Executive Office consists of agencies that report directly to the president and perform staff services for him. Some agencies are large bureaucracies. The president appoints the top positions, but unlike the White House Staff members, these Executive Office appointees must be confirmed by the Senate. The Executive Office agencies include the following: The cabinet is the oldest traditional body of the executive branch. The first cabinet members were appointed by Washington to serve as secretary of state, secretary of the treasury, secretary of war, and attorney general. From the earliest feuds between Thomas Jefferson and Alexander Hamilton, the cabinet almost never has served as a deliberative body of presidential advisers. In truth, the cabinet does not have much influence over presidential decisions, nor does it help the president to gain control over the bureaucracy. Cabinet officers are the heads of fourteen major departments. The order of their creation is important for protocol. When the cabinet meets, the secretary of state sits on one side and treasury on the other, and so forth down the table so that the newest departments are the farthest away from the president. They are appointed by the president and must be confirmed by the Senate. The original four positions (secretary of war is now called secretary of defense), are known as the i**nner cabinet,** as still generally have the most power and influence. The president has very little power over cabinet departments partly because he cannot appoint more than a small number of all a department's employees. The most important reason that the departments operate independently from the president is that cabinet members spend the large majority of their time on departmental business, and seek to defend and promote their own organizations in cabinet meetings. What results is that they often compete with one another for precious resources and attention, and represent the departments to the president rather than functioning as the president's representative to the departments. The president also appoints people to agencies and commissions that by law often have an independent status. In contrast to the heads of "executive" agencies, the heads of independent agencies serve by law for fixed terms of office and can be removed only "for cause." The agencies are created by Congress, and include such well-known bodies as the Federal Reserve Board, the Federal Communications Commission, the Federal Deposit Insurance Corporation, the Interstate Commerce Commission, and the Securities and Exchange Commission.
 * to preside over the Senate, but without a vote except to break a tie. This power is seldom claimed by the vice president who defers to the president //pro tempore// who in turn usually hands the responsibility to a junior senator.
 * to help decide the question of presidential disability, as provided in the 25th Amendment in 1967. To date, the vice president has never had to decide a question of presidential disability.
 * THE WHITE HOUSE OFFICE**
 * ** the "pyramid" model ** In this organizational model, most assistants report through a hierarchy to a chief of staff and/or a chief aide. This model is relatively efficient and it frees the presidentâs calendar for only the most important issue. On the other hand, the president may become isolated or his top advisers may gain a great deal of power, as happened to President Richard Nixon in the early 1970s
 * ** the "circular" model ** Presidents that use this model have more direct contact with their staff members, with many cabinet secretaries and assistants reporting directly to the president. Bill Clinton employed this structure, especially in the early years of his presidency, when many task forces, committees, and informal groups of friends and advisers dealt directly with the President. This model allows better access to the president, and ideas are not filtered through one or two top aides. Critics say that the model promotes chaos and that the presidentâs time is not well used.
 * THE EXECUTIVE OFFICE OF THE PRESIDENT**
 * THE EXECUTIVE OFFICE OF THE PRESIDENT**
 * ** The National Security Council ** advises the president on American military affairs and foreign policy. The NSC consists of the president, the vice president, and the secretaries of state and defense. The presidentâs national security adviser runs the staff of the NSC and also advises the president.
 * ** The Office of Management and Budget ** (OMB) is the largest office in the EOP, and it has the job of preparing the national budget that the president proposes to Congress every year. The OMB also monitors the spending of funds approved by Congress and checks the budgets and records of executive agencies.
 * ** The National Economic Council ** helps the president with economic planning. The council consists of three leading economists and is assisted by about 60 other economists, attorneys, and political scientists. The NEC is the presidentâs major source of advice and information about the nation's economy.
 * THE CABINET**
 * INDEPENDENT AGENCIES AND COMMISSIONS**

SELECTION OF THE PRESIDENT
One very important characteristic of the American political system is that no one seriously questions the process of selecting a president. Nor have we ever had anything other than a peaceful transition between presidents. Of course, people criticize the men that we choose, not to even mention the fact that we have never chosen a women. What people accept almost completely is //how// a president is chosen or //that// he should leave office when his time is up.

THE ELECTORAL COLLEGE
The method of selection of the president was one of the most controversial topics at the Constitutional Convention. Most of the framers did not trust the public to directly elect the president, but under the checks and balances system, neither could Congress be allowed to select the head of the executive branch. The solution to the dilemma was to create an **electoral college**, a group of electors chosen by each state who would meet in their respective state capitals to vote for president and vice president. Many framers believed that states would vote for favorite sons and that often the election would be decided by the House of Representatives. It did not work out as they expected, largely because they did not foresee the important role that political parties would play in presidential selection. Today, all major presidential candidates are selected by their political parties, even though Ross Perot tried to capture the presidency in 1992 without the backing of a party. In 1996, he proved the importance of political parties in the selection process when he tried to run again, but as head of a third party. Presidential candidates are chosen through presidential primaries, and are nominated at a party convention in the summer before a general election in November. The electoral college members in each state vote ö either by law or tradition - for the same candidate that the majority of voters in the state chose. Until the election of 2000, the electoral college was regarded primarily as a formality that didnât affect the outcomes of presidential election. However, in 2000 Democratic candidate Al Gore won the popular vote, but George W. Bush became President because he won the electoral vote. The situation opened a debate, with electoral college supporters arguing that the system protects regional and local balance, and its critics claiming that the electoral college voting system is undemocratic. In the election of 2004 a few thousand changes of votes from George W. Bush to John Kerry would have created the situation again, but in reverse. However, President Bushâs narrow victory in Ohio meant that he gained both a popular and electoral majority.
 * RECENT CONTROVERSY**

PRESIDENTIAL DISABILITY AND SUCCESSION
According to the Constitution, the president's elected term of office is four years, but no mention is made of the number of terms a president may serve. By a precedent set by George Washington, who retired after two terms, no president before Franklin Roosevelt served longer than two terms. However, in the midst of economic depression and a world war, Roosevelt ran for and won a third and fourth term of office, although he died before he completed the last one. Because the tradition was seen as a safeguard against tyranny, Congress added the **22nd Amendment** to the Constitution, limiting a president to election to two terms and/or serving no more than ten years. A vice president who becomes president with less than two years remaining in the previous president's term may run for the office two times on his own. Among twentieth century Presidents, Woodrow Wilson became incapable of carrying out his job after he suffered a stroke, and his wife apparently made many presidential decisions. Likewise, Dwight Eisenhower was unable to function as President for several weeks after a debilitating heart attack. The **25th Amendment** (1967) to the Constitution covers this important problem concerning the presidential term: disability and succession. It permits the vice president to become acting president if the vice president and the cabinet determine that the president is disabled. If the president challenges the executive decision, Congress decides the issue. The amendment also outlines how a recovering president can reclaim the Oval Office. The 25th Amendment also created a method for selecting a vice president when the office is vacated. The president nominates a new vice president, who assumes office when both houses of Congress approve the nomination by a majority vote. A vice president who assumes the presidency then nominates a new vice president who is also confirmed by Congress. If there is no vice president, then a 1947 succession law governs: next in line are the speaker of the house, the Senate //pro tempore//, and the thirteen cabinet officers, beginning with the secretary of state. The disability provision has never been used, but the vice presidential succession policy has. In 1973, Vice President Spiro Agnew resigned amidst charges of bribery, and President Nixon appointed Gerald Ford in his place. The next year, Nixon resigned as a result of the Watergate scandal, Ford became president, and he appointed Nelson Rockefeller as vice president. For the first time in history, both the presidency and vice presidency were held by appointed, not elected, officials. The Constitution provides a way to remove a president before his term is over, but it is not an easy process. The House of Representatives may, by majority vote, impeach the president for "Treason, Bribery, or other high Crimes and Misdemeanors." Once the House impeaches the president, the case goes to the Senate, which tries the president, with the chief justice of the Supreme Court presiding. By a two-third vote, the Senate may convict and remove the president from office. Only two presidents have been impeached: Richard Nixon came close to impeachment when on July 31, 1974, the House Judiciary Committee voted to recommend his impeachment to the House as a result of the Watergate scandal. Nixon avoided impeachment by resigning from the presidency a few days later. Other civil officers besides the president may be impeached, but the provision has had the most meaning for federal judges, who serve for life and are constitutionally independent of the president and Congress. Fifteen judges in U.S. history have been impeached by the House, and seven have been convicted by the Senate. Despite gridlock, the recent impeachment process, and the disputed election of 2000, the institution of the presidency has survived. The responsibilities and privileges have changed over time so that the office is much more powerful than the one created by the Constitution. Even though events of recent years have checked presidential power, few people would argue that the president is still the most influential and respected single political leader in the country.
 * Presidential Disability**
 * Presidential Succession**
 * THE IMPEACHMENT PROCESS**
 * Andrew Johnson was impeached by the House in 1868 in the wake of the post-Civil War politics, but the Senate failed to convict him (by a one vote margin), and he remained in office.
 * Bill Clinton was impeached by the House in 2000 on two counts: committing perjury and obstructing justice in the investigation of sex scandals surrounding the Presidentâs relationships with Paula Jones and Monica Lewinsky.

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The Federal Courts - Chapter 10
media type="custom" key="24698438"

[|A good review of the Supreme Court's actions]

[|The Supreme Court Website] I. The following sections are your responsibility. Skim them for basic concepts. We will spend little if any time in class discussing them.


 * History of the courts 350-354


 * Court structure 355-361

II. We have spent some time looking at this topic with the __study__ of the president and the legislative branch. More details are described in this section. Again, you are responsible for the content. We may make some mention of this material. Be prepared to discuss.


 * Nomination Process and Factors 361-371


 * 1) To better understand the rulings the Supreme Court hands down, it is vital to know the process used by the Supreme Court as well as the factors that motivate the justices to rule in the ways that they do.


 * Supreme Court Process 372-381


 * Influences on Justices 381-388

**THE JUDICIARY** In most modern democracies the executive and legislative branches hold considerable power, but most __grant__ little policymaking power to the judicial branch. A most important exception to this general rule is the United States, whose judiciary is truly a coequal branch with as much power as the other two. And yet our government did not begin with this almost equal __balance__ of power; the founders almost certainly saw the judiciary as an important check on the legislative and executive branches, but not as a policymaking body.

The court system is a cornerstone of our democracy. According to our ideals, judges make impartial and wise decisions that elected officials find difficult to make. Members of Congress, state governors, and the President must always worry about elections and popular opinion. As a result, they may lose sight of the need to preserve our values, and they sometimes set hasty or unjust policies. Under the guidance of Constitutional principles, the courts serve as watchdogs of the other branches of government.


 * THE COMMON LAW TRADITION **

Although the U.S. judiciary differs in many ways from the British system, the tradition of English common law is still very important to both. **Common law** is a collection of judge-made laws that developed over centuries and is based on decisions made by previous judges. The practice of deciding new cases with reference to former decisions is called **precedence**. The doctrine of **//stare decisis//** (let the decision stand) is based on [precedent, and is a cornerstone of English and American judicial systems. So, when a Court overturns a previous courtâs decision, it is a major event, because to do so breaks the strong tradition of //state decisis.//


 * THE JUDICIARY IN THE CONSTITUTION **

The Constitution painstakingly defines the structure and functions of the legislative branch of the government. It clearly, although less thoroughly, addresses the responsibilities and powers of the President. However, it treats the judicial branch almost as an afterthought. Article III specifically creates only one court (the Supreme Court), allows judges to serve for life and to receive a compensation, broadly outlines original and appellate jurisdiction, and outlines the procedure and limitations for those accused of treason. Article III consists of three section:

á **Section 1:** The only court mentioned in the Constitution is the Supreme Court, and Congress is given the right to create all other federal courts. Judgeships are to be held "during good Behavior" (in other words, there are no terms of office), and judges' compensations are not allowed to be diminished while they hold office.

á **Section 2:** The jurisdiction of the courts is defined, with all cases affecting ambassadors, ministers, and consuls going automatically to federal courts. Also, federal jurisdiction is held in cases of admiralty and maritime jurisdiction, cases involving the U.S. as a party, controversies between two or more states or between citizens of different states, and cases of states or their citizens against foreign countries. **Original jurisdiction** (The court has the first hearing) is given to the Supreme Court in cases involving ambassadors, ministers, and consuls and in cases in which a state is a party. **Appellate jurisdiction** is given in all other cases. In other words, they can only be appealed to the Supreme Court after first being heard in a lower court. Section 2 also provides for trial by jury for all criminal (not civil) cases.

á **Section 3**: Treason is defined as not only waging war against the United States, but as "adhering to their enemies" and "giving them aid and comfort." A person may be convicted for treason only if he or she confesses in court or on the testimony of two witnesses. Punishment for treason is declared by Congress, but "corruption of blood" (paying for the treason of a relative) and forfeiture of property after the individual is dead are forbidden.

Surprisingly, nothing else is said. Article IIIclearly reflects the traditional 18th century view of courts: they judge disputes between people and decide which of the two parties is right, usually awarding the wronged party "damages," or money. The role of judges, then, is simply to find and apply existing law. Under this scenario, judges cannot make laws, but they are required to interpret them in order to apply them. This power of interpretation implies a limited judiciary role in "checking and balancing" the other two branches: laws passed by Congress and actions by the president and other executives.


 * JUDICIAL REVIEW **

The early Supreme Court gave few indications that the judicial branch would someday be coequal to the legislative and executive branches. Their first session began in 1790, and lasted only ten days. No cases were heard, and their time was spent admitting lawyers to practice before the Court. Not until the early 1800s did the fourth Chief Justice, John Marshall, claim the power for the court in the famous **//Marbury v. Madison//** case. The power he claimed was **judicial review**, a concept implied by but not mentioned in Article III of the Constitution. Judicial review allows the courts to rule on the constitutionality of laws and actions, giving them the power to strike down or reinforce policy, not just to apply and interpret it. Judicial review is the key to understanding the unusual power of the United States judiciary.


 * //MARBURY V. MADISON// (1803)**

When President John Adams failed to __win__ reelection in 1800, he was forced to cede the office to his political rival Thomas Jefferson. For the first time in U.S. history, a president from one political party (the Federalists) had to step down for one from the opposite party (the Democratic Republicans). Fearing that Jefferson would undo Federalist policies, Adams worked hard to "pack the courts" with 57 Federalist judges before he had to leave office. All but seventeen letters of appointment were delivered before the change of office, but these letters were left for the incoming secretary of state - James Madison - to send out. Madison never delivered the letters. Four of the seventeen men (one was named Marbury) who never received their letters sued Jefferson and Madison, calling on the Supreme Court to issue a writ of mandamus ordering Madison to make the appointments.

The Chief Justice of the Court, Federalist John Marshall, was put in a bind by the lawsuit. The Court had been given the power to issue **writs of mandamus** (from the Latin "I command") by the Judiciary Act of 1789, but its influence was largely untested. What if the Court issued the order to Madison and he refused to comply, what could the Court do? It had no troops to enforce its orders. Even if Madison cooperated, the Democratic Republican Congress almost certainly would impeach him. On the other hand, if he allowed Madison to get away with it, the power of the Supreme Court would be seriously compromised.

Marshall's solution not only avoided a constitutional crisis, a standoff among the three branches, but it changed the nature of judicial power completely. Thecourt refused to issue the writ of mandamus, but in his majority opinion, Marshall claimed that the Judicial Act of 1789 was unconstitutional. According to Article III, original jurisdiction is given to the Supreme Court only in certain cases; the Judicial Act gave original jurisdiction for the Court to issue writs not mentioned in the Constitution; therefore, the law was unconstitutional. As a result, a showdown was avoided, Jefferson and Madison were happy, and Marshall awarded the Court an unprecedented power: judicial review. From then on, no one seriously questioned the Court's right to declare laws unconstitutional, and Marshall's 34 years as Chief Justice were spent building on that power.


 * THE STRUCTURE OF THE FEDERAL COURT SYSTEM**

The only federal court required by the Constitution is the Supreme Court. Article III left it up to Congress to establish lower federal courts, which they began to do in the Judiciary Act of 1789. The Constitution also does not specify how many justices shall be on the Supreme Court (originally there were six; now there are nine). Congress created two general types of lower federal courts: constitutional and legislative.


 * Constitutional Courts**

Constitutional courts exercise the judicial powers found in Article III, so their judges are given the constitutional protection of lifetime terms. There are 94 district courts, with at least one in each state, the District of Columbia, and Puerto Rico; and 13 courts of appeals, one of which is assigned to each of 12 judicial circuits, or region. A special appeals court called the U.S. Court of Appeals for the Federal Circuit hears cases regarding patents, copyrights, and trademarks, claims against the United States, and international trade.

á **District courts** are trial courts of original jurisdiction, the starting point for most litigation in the federal courts. They hear no appeals, and they are the only federal courts in which trials are held and juries may sit. Each district court has between two and twenty-seven judges, depending on their caseloads. Their jurisdiction includes federal crimes, civil suits under federal law, and civil suits between citizens of different states where the amount exceeds fifty thousand dollars.

á **Courts of appeal** have appellate jurisdiction only; no cases go to them first. They review any final decisions of district courts, and they may review and enforce orders of many federal regulatory agencies, such as the Securities and Exchange Commission. Most cases come from the district courts. Each court of appeals normally hears cases in panels of three judges, but important cases may include more. Decisions are made by majority vote of the participating judges.


 * Legislative Courts**

Congress also has set up legislative courts for specialized purposes. These courts include the Court of Claims, the Court of International Trade, the Tax Court, and the Court of Military Appeals. Legislative courts are sometimes called Article I courts because they help carry out the legislative powers the Constitution has granted to Congress. Because they do not carry out Article III judicial powers, their judges are not protected for life; they serve fixed terms of office, can be removed without impeachment, and may have their salaries reduced.


 * PARTICIPANTS IN THE JUDICIAL SYSTEM **

The major participants in the courtroom are the judge, the litigants, the lawyers, sometimes a jury, and the audience, such as the press, interest groups, and the general public.


 * LITIGANTS**

The litigants include the **plaintiff**, or the person bringing the charges, and the **defendant**, or the person charged. In **criminal law** cases an individual is charged with violating a specific law; in **civil law** cases no charge of criminality is made, but one person accuses another of violating his or her rights. Civil lawdefines the relations between individuals and defines their legal rights. Litigants wind up in court for many reasons. Plaintiffs may be seeking justice and/or compensation; defendants may be brought to court reluctantly, particularly if they are accused of a crime, or they may see themselves as defending their rights against a lawsuit.

The United State government is involved in about two-thirds of the cases brought to federal court, either as a plaintiff or defendant. In criminal cases the government is the plaintiff, but in a large number of civil cases, the government defends itself against lawsuits.

Litigants must always have **standing to sue**, or a serious interest in the case, usually determined by whether or not they have personally suffered injury or are in danger of being injured directly. Just being opposed to a law does not generally provide standing; the individual must be directly affected by it. The concept of standing to sue has been broadened in recent years by **class action suits**, which permit a small number of people to represent all other people similarly situated. For example, //Brown v. Board of Education of Topeka// was a class action suit in 1954, when Linda Brown of Topeka, Kansas, represented black students from several school districts around the country suing for discrimination in public education.


 * LAWYERS**

Lawyers have become virtually indispensable in the judicial system. In criminal cases federal lawyers are the prosecutors, or those who formally charge an individual of a crime. Prosecution falls to the Department of Justice: the attorney general, the **solicitor general** (who represents the government to the Supreme Court), other attorneys, and assistant attorneys, who must also serve as defense lawyers if the government is being sued.

The __federal government__ also provides **public defenders** for people who cannot afford personal lawyers. The 1964 case **//Gideon v. Wainwright//** determined that all accused persons in state as well as federal criminal trials should be supplied with a __lawyer__, free if necessary.Prosecutors negotiate with the defense lawyers and often work out a plea bargain, in which a defendant agrees to plead guilty to avoid having to stand trial.


 * THE JURY**

The right to a trial by jury is fundamental to our justice system, but most trials do not involve them. In many cases, but not all, a jury, a group of citizens (usually twelve), is responsible for determining the innocence or guilt of the accused. Trial by jury is used less often today than in the past. Defendants and their lawyers either make plea bargains or elect to have their cases decided by a judge alone. Even in criminal cases, only a small number are actually tried before a jury. Trials by jury take more time and money than do bench trials, which are heard before judges only.


 * THE AUDIENCE**

Interest groups sometimes seek out litigants to represent a cause they support. One of the most successful groups is the National Association for the Advancement of Colored People, which has defended numerous civil rights cases, including Brown v. Topeka. The American Civil Liberties Union is another interest group that actively seeks litigants to protect principles of individual liberties. The press actively influences sensational cases, particularly if a celebrity or a highly publicized case is involved. The press corps is often instrumental in getting the public interested in a case.


 * THE JUDGES**

The central figure in the court room is of course the judge, who must draw upon his or her background and beliefs to guide decision making. Whether a jury is involved in the trial or not, it is up to the judge to make the final decision of innocence or guilt and to pronounce the sentence if the individual is found guilty.


 * THE JURISDICTION OF THE FEDERAL COURTS **

The United States has a **dual court system** - one federal, as outlined above, and one state. The Constitution gives certain kinds of cases to federal courts, and by implication leaves all the rest to state courts. Federal courts hear cases "arising under the Constitution, the law of the United States, and treaties" (**federal-question cases**) and cases involving citizens of different states (**diversity cases**).

Some kinds of cases may be heard in either federal or state courts. For example, if citizens of different states sue one another in a civil case where more than $50,000 is involved, their case may go to either federal or state court. If a state bank with federal insurance is robbed, the case may be tried in either type of court. Sometimes defendants may be tried in both state and federal courts for the same offense. Under the doctrine of **dual sovereignty**, state and federal authorities can prosecute the same person for the same conduct. Also, some cases that go to state courts can be appealed to the U.S. Supreme Court if they involved a significant **constitutional question**. For example, if the highest court in a state has held a law to be in violation of the Constitution or has upheld a state law that a plaintiff has claimed to be in violation of the Constitution, the matter may be appealed to the Supreme Court.

Most cases considered in federal courts begin in the district courts, where the volume of cases is huge and growing larger. Most cases involve straightforward application of law; very few are important in policymaking. Likewise, the vast majority of cases heard in state courts do not reach federal courts, with each state having its own Supreme Court that serves as the final judge for questions of state law.

** THE SELECTION OF JUDGES **

Legendary Justice Oliver Wendell Holmes once said that a Supreme Court justice should be a "combination of Justinian, Jesus Christ, and John Marshall." Why do we look to venerable former justices for guidance in understanding necessary qualities for federal judges and justices? The main reason is that the Constitution is silent on their qualifications. The Constitution meticulously outlines qualifications for the House of Representatives, the Senate, and the Presidency, but it does not give us any help with judicial appointments, other than the fact that justices should exhibit "good behavior." As a result, the question of who is chosen is governed primarily by tradition.


 * THE NOMINATION PROCESS**

The Constitution provides broad parameters for the nomination process. It gives the responsibility for nominating federal judges and justices to the President. It also requires nominations to be confirmed by the Senate. But let's do the numbers. Hundreds of judges sit on district courts and courts or appeals, and nine justices make up the Supreme Court. Since they all have life terms, no single President will make all of these appointments, but certainly many vacancies will occur during a President's term of office.

Appointing judges, then, could be a President's full time job. Logically, a President relies on many sources to recommend appropriate nominees for judicial posts. Recommendations often come from the Department of Justice, the Federal Bureau of Investigations, members of Congress, sitting judges and justices, and the American Bar Association. Some judicial hopefuls even nominate themselves.


 * The Lower Courts**

The selection of federal judges for district courts and sometimes for courts of appeal is heavily influenced by a tradition that began under George Washington: **senatorial courtesy**. Usually the Senate will not confirm a district court judge if the senior senator from the state where the court is located objects, nor a court of appeals judge not approved by the senators from the judge's home state. As a result, presidents usually check carefully with senators ahead of time, so the Senate holds a great deal of power in the appointment of federal judges.


 * The Supreme Court**

The president is usually very interested in opportunities to appoint justices to the Supreme Court, and a great deal of time and effort go into the nominations. Because justices retire at their own discretion, some presidents are able to appoint more than others. For example, Richard Nixon was able to nominate four justices in his first three years in office, but Jimmy Carter wasn't able to appoint any.


 * SENATE CONFIRMATION**

Because senators suggest most nominees for federal district courts, the Senate confirmation required by the Constitution is only a formality for most. However, for appointments to appeals courts and especially to the Supreme Court, the confirmation process may be less routine. The Senate Judiciary Committee interviews the nominee before he or she goes before the entire Senate. If the Judiciary Committee does not recommend the candidate, the Senate usually rejects the nomination. Through 2001, 28 of the 146 individuals nominated to be Supreme Court justices have not been confirmed by the Senate.


 * SELECTION CRITERIA**

Presidents use a number of criteria in selecting their nominations:

á **Political ideology** Presidents usually appoint judges that seem to have a similar political ideology to their own. In other words, a president with a liberal ideology will usually appoint liberals to the courts. The same goes for conservative presidents. However, Presidents have no real way of predicting how justices will rule on particular issues. Behavior doesnât always reflect ideology, and political views also change. For example, President Dwight Eisenhower a Republican - appointed Earl Warren and William Brennan, who surprised him by becoming two of the most liberal justices in recent history.

á **Party and personal loyalties** A remarkably high percentage of a President's appointees belong to his political party. Overall, about 90 percent of judicial appointments since the time of Franklin Roosevelt have gone to members of the President's party. Although it isn't as common today as it once was, Presidents still appoint friends and loyal supporters to federal judgeships.

á **Acceptability to the Senate -**Because the Senate must __confirm__ judicial nominations, the President must consider candidates that are acceptable to the Senate. Even if he does informally consult with the Senate, he may still run into problems with the Senate Judiciary Committee, who first interrogates nominees and recommends them to the full Senate. If a nominees runs into trouble in the confirmation process, they often withdraw their names from consideration. If this happens, the President must start all over again, as happened to Ronald Reagan in 1988 when he nominated Douglas Ginsburg, who was criticized for using marijuana while a law professor at Harvard.

á **Judicial experience -** Typically justices have held important judicial positions before being nominated to the Supreme Court. Many have served on courts of appeals, and others have worked for the Department of Justice. Some have held elective office, and a few have had no government service but have been distinguished attorneys. The work of the Supreme Court is so unique that direct judicial experience is often less important than it is for the other courts of appeals.

á **Race and gender -** The first black American, Thurgood Marshall, was appointed to the Supreme Court by Lyndon Johnson in 1967, and the first woman, Sandra Day O'Connor, was appointed in 1981 by Ronald Reagan. Since then one other black, Clarence Thomas, and women, Ruth Ginsburg, Sonya Sotomayor, and Elena Kagan have been appointed as well. Before 1967 all justices were white and male. The percentage of women and minority federal judges appointed has increased significantly in recent years.

á **The "Litmus Test"** - Although most senators and presidents deny it, some observers believe that candidates must pass a "litmus test," or a test of ideological purity, before they may be nominated and/or confirmed to the Supreme Court. One recent litmus test supposedly has been the individual's attitude toward abortion rights. Nominees David Souter and Clarence Thomas both were grilled by the Senate Judiciary Committee about their opinions on prominent abortion cases.


 * HOW THE SUPREME COURT WORKS **

The power of the Supreme Court is reflected in the work that they do, and their decisions often shape policy as profoundly as any law passed by Congress or any action taken by the president. The Court does much more than decide specific cases. It resolves conflicts among the states and maintains national supremacy. It also ensures uniformity in the interpretation of national laws, and many of the most important cases that determine the constitutionality of laws and government actions are decided in the Supreme Court.

There are nine justices on the Supreme Court: eight associates and one chief justice. The number is set by law and has varied from six to ten over the course of history, but it has remained at nine since the 1870s. All the justices sit together to hear cases and make decisions.

Supreme Court justices are in session from the first Monday in October through the end of June. They listen to oral arguments for two weeks and then adjourn for two weeks to consider the cases and write their opinions. In the event of a tie (if one or more justices isnot present), the decision of the lower court remains, although on rare occasions a case may be reargued.


 * SELECTION OF CASES**

Most cases come to the Supreme Court by means of a **writ of certiorari**, a Latin phrase that means "made more certain." The court considers all petitions it receives to review lower court decisions. If four justices agree to hear a case, cert (a shortened reference) is issued and the case is scheduled for a hearing. This practice is known as the **rule of four.** Only a tiny fraction of cases appealed to the Supreme Court are actually accepted. The Court also hears the few cases in which it has original jurisdiction according to Article III of the Constitution, but for the vast number of cases, the Court has control of its agenda and decides which cases it wants to consider.


 * BRIEFS AND ORAL ARGUMENTS**

Before a case is heard in court, the justices receive printed briefs in which each side presents legal arguments and relevant precedents (previous court decisions). Additionally, the Supreme Court may receive briefs from //amici curiae// ("friends of the court") individuals, organizations, or government agencies that have an interest in the case and a point of view to express. When oral arguments are presented to the court counsel for each side generally is limited to 30 minutes, a policy that often aggravates the lawyers, since justices often interrupt them to ask questions.


 * THE CONFERENCE**

Wednesday afternoons and all day Friday the justices meet in conference. Before every conference, each justice receives a list of the cases to be discussed, and the discussions are informal and often spirited, with the chief justice presiding. No formal vote is taken, but at the end of discussion, each justice is asked to give his or her views and conclusions.


 * OPINIONS**

Once decisions have been made in conference an opinion, or statement of the legal reasoning behind the decision, must be formally stated. The most senior justice in the majority assigns the task of writing the **majority opinion**, the official opinion of the court. Unless the decision is unanimous, the most senior justice on the losing side decides who will write the **dissenting opinion** of those justices who do not agree with the Courtâs majority decision. A justice may write a **concurring opinion** if he or agrees with the majority decision but does so for different reasons than stated in the majority opinion

The content of an opinion may be as important as the decision itself. For example, John Marshall established judicial review in his majority opinion in the //Marbury v. Madison// case. Opinions also instruct the judges of all other state and federal courts on how to decide similar cases in the future


 * IMPLEMENTING COURT DECISIONS**

Court decisions carry legal authority, but courts have no police officers to enforce them. They must rely on the other branches, or state officials, to enforce their decisions. **Judicial implementation**, then, refers to the translation of court decisions into actual policy that affects the behavior of others.

Although Congress or a President may ignore or side-step a Supreme Court ruling, decisions whose enforcement requires only the action of a central governmental agency usually become effective immediately. Implementation is more difficult if a decision requires the cooperation of a large number of officials. For example, when the Court ruled required prayers in public schools unconstitutional, some school boards continued their previous practices. Also, despite the fact that the Court ruled segregated schools unconstitutional in 1954, public schools remained largely segregated for more than ten years after the first ruling.


 * THE COURTS AND DEMOCRACY **

Of the three branches of government, the courts are the least democratic. Justices are not elected (except for some positions on the local level), they may not be removed from office except by the drastic means of impeachment, and the decisions of the courts may only be reversed by higher courts.


 * POPULAR INFLUENCE**

The courts are not entirely independent of popular influence for two reasons.

1) The justices are appointed by the President, at least partly because they agree with his political points of view and ideologies. Therefore, even though they do not have the pressure to seek reelection, they are chosen at least partly because of their political biases.

2) Justices follow election returns, read newspapers, get mail supporting both sides of the issues they must decide, and understand that their decisions either support or refute popular opinion. Justices are aware that court orders that flagrantly go against public opinion are likely to be ignored. Such a case was the //Dred Scott// decision, which infuriated the North because it supported slaveholders outside the South.


 * CONSERVATISM AND LIBERALISM**

Although justices are theoretically "above politics," they do have personal ideologies, and their points of view often influence their decisions. For example, the Supreme Court under Earl Warren (1953-1969) and Warren Burger (1969-1986) made decisions that were notably liberal, most famously is //Brown v. Board of Education of Topeka// (1954) and //Roe v. Wade// (1973). Since William Rehnquist became Chief Justice in 1989, the court has taken a rightward shift. Currently, four justices are consistently conservative (Chief Justice John Roberts, Samuel Alito, Antonin Scalia, and Clarence Thomas); three are liberal (Ruth Ginsberg, Sonya Sotomayor, and Elena Kagan); and two are moderate to conservative (Steven Breyer and Anthony Kennedy). As a result, the two in the middle often serve as "swing" votes, and decisions rest on their points of view.


 * CONSTRAINTS ON THE POWER OF THE FEDERAL COURTS **

Judicial review gives the federal courts a power unmatched in any other modern democracy, but the courts operate under a number of constraints.

1) Policy must be made within the setting of an **adversarial system**, a neutral arena in which two parties present opposing points of view before an impartial arbiter (a judge.) The system is based on the assumption that justice will emerge from the struggle. Judicial power, then, is passive - the case must come to the court, and not vice versa.

2) The case must represent a **justiciable dispute** - an actual situation rather than a hypothetical one, and one that may be settled by legal methods.

3) Courts have developed a doctrine of **political questions**, which provides grounds to avoid settling disputes between Congress and the president, or requires knowledge of a nonlegal character. A political question is a matter that the Constitution leaves to another branch of government, like deciding which group of officials of a foreign nation should be recognized as the legitimate government.

The other two branches of government provide some important checks on the power of the courts.

á The president controls the nature of the courts with his power to appoint all federal judges.

á Congress must __confirm__ presidential appointments

á Congress may alter the very structure of the court system, determining the numbers of courts and justices that serve on them.

á Congress has the power to impeach justices, with two federal justices being removed from office most recently in 1989.

á Congress may also amend the Constitution if the Courts find a law unconstitutional, though this happens only rarely. For example the Sixteenth Amendment was added to make it constitutional for Congress to pass an income tax.


 * THE POLICYMAKING POWER **

Although the vast majority of cases decided by the federal courts only __apply__ existing law to specific cases, courts do make policy on both large and small issues. Opinions differ widely on the question of how strong the policymaking role of the judicial branch should be.

Many favor a policy of **judicial restraint**, in which judges play minimal policy-making roles, leaving policy decisions to the other two branches. Supporters of judicial restraint believe that because the judicial branch is the least democratic, judges are not qualified to make policy decisions. According to judicial restraint, the other branches should take the lead because they are more closely connected to the people. According to Justice Antonin Scalia, "The Constitution is not an empty bottle·it is like a statute, and the meaning doesn't change."

On the other side are supporters of **judicial activism**, in which judges make policy decisions and interpret the Constitution in new ways. Judicial activists believe that the federal courts must correct injustices that the other branches do not. For example, minority rights have often been ignored, partly because majorities impose their will on legislators. Prayers in public schools support the beliefs of the majority, but ignore the rights of the minority. The Constitution, then must be loosely interpreted to meet the issues of the present. In the words of former Justice Charles Evans Hughes: "We are under a Constitution, but the Constitution is what the judges say it is."

Despite the debate over what constitutes the appropriate amount of judicial power, the United States federal courts remain the most powerful judicial system in world history. Their power is enhanced by life terms for judges and justices, and they play a major role in promoting the core American values of freedom, equality, and justice.


 * THE LEGISLATIVE BRANCH**

Hughes Video [] Filibuster Video [] Jay-Z/Godfather/WhizKhalifa Filibuster Clip [] ||
 * Introduction to Congress - Thursday, April 9 (Age, number, term, organization, basic powers, differences H vs. S)**
 * ~ **DAY** ||~ **TOPIC** ||~ **ASSIGNMENTS****(In-class/ due this day)** ||~ **READING****(Due this day)** ||
 * **T(4/14)** || Introduction to Congress || House vs. Senate chart ||  ||
 * **W(4/15)** || House vs. Senate; Powers of Congress; Organization ||  || 223-226;235-245
 * **Th(4/16)** || Lawmaking ||  ||
 * || A great step-by-step look at the lawmaking process. HIGHLY RECOMMENDED!!! ||
 * **F(4/17)** || Lawmaking Influences || on Lawmakers253-256 || [] ||
 * **M (4/20)** || Interest Groups ||
 * ||  ||   ||   || 621-623 632-647 ||   ||
 * **M (4/20)** || Interest Groups ||
 * ||  ||   ||   || 621-623 632-647 ||   ||

‍Congress and Interest Groups - Chapter 7 & 16 **Rank-and-File Senators and Representatives**

2013: $174,000

2000: $141,300

**[|Speaker of the House]**

2013: $223,500

2000: $181,400

**House and Senate Majority and Minority Leaders**

2013: $193,400

2000: $156,900

A cost-of-living-adjustment (COLA) increase takes effect annually unless Congress votes to not accept it

Your Congressional District - at least for most students

[]

BHS is located in this district:

[]

Take a look at this one in Illinois!

[]

===Why do you think the districts look like they do? What would cause the 17th Congressional District of Illinois to be created as it was? ===




 * [|Details]
 * [[file:mrpapgopo/AP Government – Nov 28 In-class Notes.pptx|Download]]
 * 476 KB




 * [|Details]
 * [[file:mrpapgopo/Congress.pptx|Download]]
 * 2 MB




 * [|Details]
 * [[file:mrpapgopo/Powers of Congress.ppt|Download]]
 * 645 KB




 * [|Details]
 * [[file:mrpapgopo/interest groups.ppt|Download]]
 * 976 KB

Here are two worksheets that may help in the review of the basics on the legislative branch, i.e. items we didn't spend much time reviewing in class.




 * [|Details]
 * [[file:mrpapgopo/art1_1-7.doc|Download]]
 * 29 KB




 * [|Details]
 * [[file:mrpapgopo/art1_8-10.doc|Download]]
 * 31 KB

‍ General Topics to know:
 * Basics: age, term, #'s, residency, citizenship
 * Powers: formal and informal
 * House vs. Senate : rules, members, powers, leadership
 * Redistricting
 * Organization of Congress
 * Bill to Law process
 * Committees
 * Theories of representation
 * Influences on lawmakers
 * Interest Groups
 * Lobbying







=‍What Every Student Should Know About Congress =

Interest Group and Legislative Branch Test - Monday, April 29, 2013 == Thanksgiving Week Assignment The outline/notesheet follows heading within Chapter 7
 * [|Details]
 * [[file:mrpapgopo/Chapter 7.docx|Download]]
 * 15 KB

‍Review Videos
Check out mycitizenu on youtube.com for other review videos

Vocab for the legislative branch - I will continue to add items to the list. It will be due some time during the week of As always, number the items as stated and handwrite your definitions. =ILLINOIS GOVERNMENT REVIEW= = = ==
 * Vocabulary Assignment for the Legislative Branch**
 * 1) bicameral
 * 2) redistricting
 * 3) reapportionment
 * 4) gerrymandering
 * 5) bill
 * 6) expressed power
 * 7) implied power
 * 8) elastic clause
 * 9) impeachment
 * 10) party conference/caucus
 * 11) majority/minority leader
 * 12) whips
 * 13) pork barrel/earmarks
 * 14) incumbency advantage
 * 15) franking
 * 16) casework
 * 17) logrolling
 * 18) standing committee
 * 19) **more to come**

=US REVIEW= = = = = = = = = = = =Complete the first part of this assignment for Monday...=

[[file:23 Proposals to Revitalize the US Constitution.doc]]
= = ==

**__ Syllabus __**
=** INSTITUTIONS OF GOVERNMENT **= = = =** LEGISLATIVE BRANCH **=
 * EXECUTIVE AND JUDICIAL BRANCHES**
 * ** DAY ** || ** TOPIC ** || **ASSIGNMENTS (In-class/ due this day)** || **READING (Due this day)** ||
 * ** R (4-26) ** || Introduction to Courts || ** Vocab Part 4 due ** **Take-home writing due** || 349-360 ||
 * ** F (4-27) ** || Federal Courts ||  ||   ||
 * ** M (4-30) ** || Nomination of Judges ||  || 361-368 ||
 * ** T (5-1) ** || Process of Supreme Court Judicial Policy Making ||  || 371-377 381-391 ||
 * ** W (5-2) ** || N/A || ** Vocab Part 5 due ** **Quiz** **In-Class Writing** ||  ||
 * ** R (5-3) ** || N/A || Senior __Survey__ ||  ||
 * ** F (5-4) ** || Separation of Powers || Changing the Constitution ||  ||
 * ~ **DAY** ||~ **TOPIC** ||~ **ASSIGNMENTS****(In-class/ due this day)** ||~ **READING****(Due this day)** ||
 * **M (4-2)** || Introduction to Congress ||  || 235-245 ||
 * **T (4-3)** || House vs. Senate || House vs. Senate chart ||  ||
 * **W (4-4)** || Congressional Elections ||  || 510-518 ||
 * **R (4-5)** || Apportionment…and Reform || ** Vocab Part 1 due ** **Quiz** || “What is redistricting reform all about?” ||
 * **F (4-6)** || NO SCHOOL ||  ||   ||
 * **M (4-9)** || Gerrymandering || Gerrymandering Game ||  ||
 * **T (4-10)** || Powers of Congress Bill to a Law  ||   || 246-250 ||
 * **W (4-11)** || Influences on Lawmakers ||  || 253-256 ||
 * **R (4-12)** || Interest Groups ||  || 621-623632-647 ||
 * **F (4-13)** || N/A || ** Vocab Part 2 due ** **In-class Writing** ||  ||

(Cronin, Genovese) || **Quiz** || 317-326 || (Neustadt) || =**__ Vocab __**=
 * ** M (4-16) ** || Introduction to the Executive ||  || 278-288 ||
 * ** T (4-17) ** || Roles of the President ||  || 289-293 ||
 * ** W (4-18) ** || Leadership of the President || Presidential Characteristics || // Presidential Paradox //
 * ** R (4-19) ** || Bureaucracy || ** Vocab Part 3 due **
 * ** F (4-20) ** || Bureaucracy cont’d ||  || 327-336 ||
 * ** M (4-23) ** || Policy Making ||  || // Presidential Power //
 * ** T (4-24) ** || NO SCHOOL ||  ||   ||
 * ** W (4-25) ** || NO __SCHOOL__ ||  ||   ||

[[file:UNIT 4 VOCAB.docx]]
=**__ Readings __**=
 * [|What is Redistricting Reform All About?] **

[[file:Congress.pptx]]
**__STOP HERE__**


 * IMPORTANT DEFINITIONS AND IDENTIFICATIONS: **

Adversarial system

Appellate jurisdiction

Civil law

Class action suits

Common law

Constitutional question

Criminal law

defendant

District Courts

Dual court system

Dual sovereinty

Federal question cases

Judicial activism vs. judicial restraint

Judicial implementation

Judicial review

Legislative courts

litmus test

Marbury v. Madison

Opinions: majority, dissenting, concurring

Original jurisdiction

Political question

Precedence

Public defenders

Rule of four

Senatorial courtesy

Solicitor general

Standing to sue

Stare decisis

Writ of certiorari

Writ of mandamus

__ Test will take place on Tuesday, December 3 __

= Lab Activity - =

It is important that you pre-read the assignment sheet as you will need to stop at certain points of the game and record your status. You will not be able to go back if you miss one of these points.



[|The Redistricting Game]

[|Chicago Tribune Editorial on the Redistricting of Illinois]
To help you with recalling some of the more important basics about Congress, here are two worksheets that will condense down the information.

1. Review your Constitution Study Guide (Summer Packet). Look at the material on Article I - Legislative Branch. If have have lost your copy, print a new version from the home page of the wiki.

2. Read Art. I - U.S. Constitution.

3. Read pgs. 223-226(basics you will find in your study guide); 235-242(how Congress is organized); 228-229 (incumbency advantage).