The Constitution



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Bureaucrats-employees of agencies or bureaus are distinct from elected officials. While in practice bureaucrats have some discretionary authority (for example, police do not arrest every lawbreaker they see), only elected officials are supposed to have discretionary authority. This explains why bureaucrats are insulated from being fired for political purposes and why bureaucrats must engage in seemingly redundant procedures and rules. These assure that policies made at the top are carried out throughout the organization and that every citizen is treated the same way.

The federal civil service system was designed to recruit qualified people on the basis of merit and to retain and promote employees on the basis of performance. Many federal officials belong to the competitive service, in which they are appointed only after they have passed a written examination. Employees hired outside the competitive service are part of the excepted service-they are not hired based on an exam but, typically, are hired in a nonpartisan fashion. Most bureaucrats cannot be easily fired, although there are informal methods of discipline. When bureaucrats do get fired, the process of dismissal often takes more than a year.

The bureaucracy is a cross section of American society in terms of the education, sex, race, and social origins of its members. Because of the civil service system, bureaucracies were, for a long time, less discriminatory in hiring minorities and women than private businesses were. At higher levels, the typical civil servant is a middle-aged male with a college degree whose father was somewhat more advantaged than the average citizen. While career civil servants are more pro government than the public at large, on most policy questions they do not have extreme positions.

Career bureaucrats often differ politically from their supervisors and the political appointees who head their agencies. Nevertheless, most bureaucrats try to carry out policy, even policy with which they disagree. "Whistle-blower" legislation protects them from punitive action by supervisors for reporting waste, fraud, or abuse in their agencies. Moreover, most civil servants have highly structured jobs that make their personal attitudes irrelevant. For example, the Environmental Protection Agency attracts bureaucrats who want to protect the environment and public health as well as free marketers who want to insulate companies from unnecessary regulation.

Agencies have often used their positions to form useful power relationships with a congressional committee or an interest group. At one time scholars described the relationship between an agency, a committee, and an interest group as an iron triangle (for example, the Department of Veterans Affairs, the House and Senate committees on veterans' affairs, and veterans' organizations such as the American Legion). Through iron triangles, the self-interest of all three groups is served. Iron triangles are far less common today because politics has become too complicated. Issues involve more powerful actors than they once did because of the interchange among agencies, Congress, lobbyists, think tanks, academia, and corporations. This interchange has created issue networks-composed of members of interest groups, professors, think tanks, and media who regularly debate government policy on a certain subject. Issue networks of many different players have in many instances replaced iron triangles.

Congressional supervision of the bureaucracy takes several forms. First, no agency can exist without congressional approval, and Congress influences agency behavior by the statutes it enacts. Second, no money can be spent unless Congress has first authorized it. Authorization legislation starts in a congressional committee and states the maximum amount of money that an agency can spend on a given program. This may be permanent, or it may be renewed each year. Third, even funds that have been authorized cannot be spent unless they are also appropriated. The House Appropriations Committee and its various subcommittees make appropriations annually.

The House Appropriations Committee has special power over agencies. The committee can recommend an amount lower than what an agency has requested and can revise or amend an agency's budget request. Both practices have the effect of strong congressional influence on agency policy. Although the Appropriations Committee does not have the power it once did, it still is the single most powerful influence on agency spending and policy. Congress can also investigate agencies by holding hearings. Although the power to investigate is only implied in the Constitution, the Supreme Court has consistently upheld Congress's right to investigate. Investigations are generally used as a means for checking agency discretion and also for authorizing agency actions independent of presidential preferences.

There are five frequently mentioned problems with the bureaucracy: 1. Red tape. 2. Conflict with other agencies. 3. Duplication. 4. Growth without regard to benefits or costs. 5. Waste. These problems are often overstated. Bureaucratic reform is always difficult to accomplish. Most rules and red tape grow out of struggles between the president and Congress. Periods of divided government make matters worse. This does not mean that reform is impossible, only that it is very difficult. There have been many attempts to make the bureaucracy work better for less money.



The Courts

The original view of the Founders was known as strict construction: judges would be bound by the wording of the Constitution and precedent, which was drawn mainly from the British legal system. Within a few decades, however, an activist approach emerged, and judges looked at the underlying principles of the Constitution. The federal courts have evolved toward judicial activism, shaped by political, economic, and ideological forces. Two early court cases, Marbury v. Madison (1803) and McCulloch v. Maryland (1819), helped establish the supremacy of the national government. Marbury gave the Supreme Court the power to declare a congressional act unconstitutional – judicial review. McCulloch established that federal law is supreme over state law. Both suggested that powers granted to the federal government should be construed broadly. The power of the federal government to regulate commerce among the states was also established, Gibbons (1824) and state law that conflicted with federal law was declared void. In Dred Scott (1857), the Court ruled that blacks were not citizens of the United States and that federal law prohibiting slavery in northern territories was unconstitutional. This helped provoke the Civil War. After the War, many court decisions protected private property. The Court upheld the use of injunctions to prevent labor strikes, struck down the federal income tax, sharply limited the reach of the antitrust laws, restricted the powers of the Interstate Commerce Commission, refused to eliminate child labor, and prevented states from setting maximum hours of work. These restricted the federal government's ability to regulate the economy. Yet the Court also authorized various kinds of regulation, such as requiring railroads to improve their safety, approving mine safety laws, and regulating fire insurance rates. While the Court was supportive of private property, it could not develop a principle distinguishing between reasonable and unreasonable regulation. Since the 1930s, the Court has deferred to the legislature in regulating the economy. It has shifted its attention to personal liberties and is active in defining rights. The Warren Court, which began in 1953, redefined the relationship of citizens to the government and protected the rights and liberties of citizens. During the past fifteen years, the Supreme Court has begun to rule that the states have the right to resist some federal action. It is possible that this is the beginning of a new era in which the Court will return certain powers to the states, a process known as devolution.

All federal judges are nominated by the president and confirmed by the Senate. Presidents almost always nominate a member of their own political party, and party background does have some effect on how judges behave. However, rulings are also shaped by other factors, such as the facts of the case, precedent, and lawyers' arguments. Confirmations are often contentious. Senate delays on confirmations often leave many seats open on the district and appellate courts. One tradition regarding nominations is senatorial courtesy: senators from the president's party review an appointee for a federal district court in their state; senators can "blue-slip" -that is, veto-a nominee, a practice that has been criticized because it gives senators virtual power in nominating judges. Another concern is the use of the "litmus test," a test of ideological purity used in recent presidents, in nominating, and senators, in confirming judges for federal courts. Presidents seek judicial appointees who share their political ideologies. Because various presidents appoint judges, different circuits issue different rulings over similar cases. While candidates cannot be asked how they would rule in a specific case, they can be asked about judicial philosophy. Litmus tests are most apparent in Supreme Court confirmations, where there is no senatorial courtesy.

Federal courts can hear all cases involving the U.S. Constitution, federal law, and treaties; these are known as federal-question cases. Federal courts may also hear cases involving different states or involving citizens of different states; these are known as diversity cases. Some cases, such as those where both state and federal laws have been broken, can be tried in either state or federal courts. The Constitution specifies a very limited original jurisdiction for the Supreme Court. Nearly every case the Supreme Court hears is on appeal and chosen by the court. It does this by issuing a writ of certiorari. If four justices agree to hear a case, a "writ of cert" is issued, and the case is scheduled for a hearing. The Court tends to take cases that pose a significant federal or constitutional question, involve conflicting decisions by circuit courts, or contain a constitutional interpretation by one of the highest state courts regarding state or federal law. Only about one hundred appeals are granted certiorari in a given year. Costs can sometimes be lowered or even covered in full in the case of indigents (called in forma pauperis), for which the government pays the costs. Those who are unable to afford counsel are provided a lawyer at no charge. Interest groups are also sources of funding for litigation. Court costs are also affected by the practice of fee shifting, which enables plaintiffs to collect their costs from a defendant if the defendant loses.

Getting to court requires legal standing. To have standing there must be a real controversy between adversaries, and the litigants must demonstrate personal harm. Under certain circumstances, a citizen can benefit from a court decision without ever going to court. In these cases, courts recognize class-action suits, in which an identifiable' group of people has standing. If the case is won, all who have circumstances similar to the active plaintiffs receive a share of the judgment. Since 1974, the Supreme Court will not hear class-action suits unless every ascertainable member of the group is notified individually. This is often prohibitively expensive.

Once a case gets to the Supreme Court, lawyers for each side submit briefs. A brief is a document that sets forth the facts of the case, summarizes the lower-court decision, gives the arguments for the side represented, and discusses precedents on the issue. Because the federal government is either the plaintiff or defendant in about half the cases that the Supreme Court hears, the solicitor general of the U.S appears frequently before the Court. The solicitor general, the third ranking officer in the Justice Department, decides which cases the government will appeal from the lower courts and personally approves every case presented to the Supreme Court. Written briefs and even oral arguments may be offered by a "friend of the court," or amicus curiae. An amicus brief is from an interested party not directly involved in the suit. The justices meet in conference to allow for the exchange of ideas and arguments and to vote. The chief justice writes the decision of the court (or assigns someone to write the official decision if he is among the minority)

A majority of justices must be in agreement. Sometimes the opinion is brief and unsigned; this is known as a per curiam opinion. There are three kinds of opinions: 1. A majority opinion 2. A concurring opinion is an opinion that agrees with the decision but uses different reasoning 3. A dissenting opinion is a minority opinion. Disagreeing with the decision, it has no value as precedent but may form the basis for later appeals or reversals of precedent. The federal. courts have the power to make public policy in three ways: 1. by interpretation of the Constitution or law 2. by extending the reach of existing law 3. by designing remedies that involve judges acting in administrative or legal ways

Judicial activism is the philosophy by which judges make bold policy decisions. Supporters believe courts should correct injustices when other branches or state governments refuse to do so and when change creates new circumstances not foreseen by the Founders. They also argue that the courts are the last resort for those without the power or influence to provoke new laws. Promoting the philosophy known as judicial restraint, critics argue that judges cannot put themselves above the law and that they lack expertise in designing and managing complex institutions. These critics also note that the courts are not accountable because judges are not elected. Judicial activism increased during the 1900's because government has tended to do more and courts have interpreted a greater number of laws. Activist judges have become more widely accepted in political culture as our values, society, and technology have changed.

Like the other branches of the federal government, the judicial branch does not have unrestrained powers. There are several checks on the powers of the federal courts: 1. Approving judges 2. Changing the number of judges (FDR tried this and failed) 3. Impeaching judges 4. Revise legislation that takes out objectionable actions 5. Proposing amendments to the Constitution that would undo a court decision (The 13th Amendment undid Dred Scott, and the 16th Amendment permitted the income tax, which had previously been ruled invalid by the Court.)
Policy Making

The legitimate scope of government action is constantly growing larger. Government activity is rarely scaled back because people have certain expectations of government that are difficult for politicians to change. Changes in the attitudes of the public and new events generally increase government activities. It is unfair to attribute government growth to one political party. Three forces enlarge government activity, sometimes without public demand or even when conditions are improving:



Groups Many policies are the result of small groups of people enlarging the scope of government by their demands. These may be organized interests-for example, corporations, unions-or unorganized yet intense groups-for example, urban minorities. Such groups may be reacting to a sense of relative deprivation. Institutions Major institutions such as the courts, bureaucracy, and Congress may add new issues to the political agenda. The courts make decisions that force action by other branches-for instance, school desegregation. They can facilitate change even when there is no popular majority for change. The bureaucracy has become a source of policy proposals. Congress, especially the Senate, produces potential presidential candidates who focus on activism as a means of gathering recognition. Media By publicizing issues the media help shape the political agenda. The public often becomes aware of issues through the media.

The politics of policy-making can be illustrated by four kinds of policies: 1. Majoritarian politics Some policies promise benefits to large numbers of people at a cost that large numbers of people will have to bear (for example, Social Security or military defense). The debate over such policies is generally conducted in ideological or cost terms, not as a rivalry among interest groups. Majoritarian issues are usually resolved in public debate and public votes on bills. .2. Interest group politics In interest group politics, a proposed policy will confer benefits on some relatively small, identifiable group and impose costs on another small, equally identifiable group (for example, bills requiring business firms to give benefits to labor unions). Interest groups generally carry on the debate over these policies with minimal involvement by the wider public. 3. Client politics With client politics, some identifiable, often small, group will benefit, but a large part of society will pay the costs (for example, regulated milk prices benefit dairy farmers but increase the cost of milk to consumers). Because the benefits are concentrated, the group that will receive those benefits has an incentive to organize and work to get them. The costs are widely distributed, affecting many people only slightly, and those who pay the costs may be either unaware of any costs or indifferent to them. 4. Entrepreneurial politics In entrepreneurial politics a large part of society benefits from a policy that imposes substantial costs on some small, identifiable segment of society (for example, antipollution and safety requirements for automobiles, proposed as ways of improving the health and well-being of all people but at the expense of automobile manufacturers). A key element in the adoption of such policies is often the work of a policy entrepreneur, who acts on behalf of the unorganized or indifferent majority. Entrepreneurial politics can also occur if voters or legislators in large numbers suddenly become disgruntled by the high cost of some benefit that a group is receiving or become convinced of the urgent need for a new policy to impose such costs (for example, cleaning up toxic waste sites).

Efforts by government to regulate business illustrate not only the four kinds of policy-making processes but also the relationship between wealth and power. Some observers believe that economic power dominates political power. In this view wealthy Americans have great access to political power. Politicians and business people with similar backgrounds and ideologies often form mutually beneficial relationships. At times, economic power allows individuals or groups to buy political power. Politicians must defer to business in order to keep the economy healthy. Other observers view political power as a threat to a market economy. Neither extreme is correct. Business and government relations depend on many variables.

Not all efforts to regulate business pit one group against another. Some laws have reflected majoritarian politics, in which the majority of voters were in favor of some form of regulation. For instance, antitrust legislation in the 1890s (for example, the Sherman Act and the Federal Trade Commission Act) was sparked by public support. By the early twentieth century, presidents were taking the initiative in encouraging the enforcement of antitrust laws -Teddy Roosevelt, the trustbuster. Support for antitrust laws came mainly from the ideological convictions of the public and were not the result of interest group activism. Labor-management conflict in the twentieth century is a good example of interest group politics. Labor unions sought government protection for their rights to strike and engage in other forms of collective action. Business firms opposed labor vigorously. Labor won a victory with the creation of the National Labor Relations Board in the mid- 1930s. Management won victories in the 1940s and 1950s (for example, the Taft-Hartley Act and the Landrum-Griffin Act). In those decades winners and losers were determined by economic conditions and the partisan composition of Congress. Costs and benefits involved specific groups, not the general public.

Client politics is also evident in business regulation. State licensing of occupations such as law and medicine are justified as ways of preventing fraud, malpractice, and safety hazards, and they no doubt serve these purposes. But they also have the effect of restricting entry into the regulated occupation, thereby enabling its members to charge higher prices than they otherwise might. Citizens generally do not object to this because they believe that the regulations protect them and that the higher prices are spread over so many customers as to be unnoticed. Entrepreneurial politics have often been evident in regulating businesses. The 1906 Pure Food and Drug Act, an early example, forced meatpacking plants to sanitize their conditions following. revelations of frightful practices in the widely read novel The Jungle. The 1960s and 1970s brought a large number of consumer and environmental protection statutes aimed at specific industries and businesses (for example, the Clean Air Act and the Toxic Substance Control Act). Ralph Nader is an excellent example of a policy entrepreneur, associating himself with many consumer and environmental interests.
The perception of costs and benefits affects politics. For instance, if people think that laws fighting pollution will be expensive for companies but not for consumers, they will generally favor such measures. However, if they believe that they will pay for the laws in the form of fewer jobs or higher prices, they will not be as supportive. Individuals and groups attempt to frame and define issues in ways that work to their advantage. Interest groups try to give the impression that their issue is vital to the welfare of the entire country and should be thought of in majoritarian terms. Likewise, opponents will try to frame an issue in client-politics terms so that the self-interest of the original group is emphasized. Political conflicts are a struggle to make one definition of the costs and benefits of a proposal prevail over others. Most people seem to react more sharply to what they will lose if a policy is adopted than to what they may gain.
Economic Policy

The deficits of the past thirty-five years have raised ongoing policy debates, yet the surpluses of 1997 to 2000 created controversy as well. Republicans wanted to return the 1999 surplus to the public, while Democrats wanted to use it for new programs. Both sides got some of what they wanted in 2001. Republicans enacted one of three large tax cuts since World War II. Democrats received the assurance that tax cuts would end in 2010, and spending on federal programs was increased. (Note: Tax cuts, for the most part, continue to this day.) In the best of times, economic forecasts are uncertain. Voters see connections between their own economic circumstances, the president, and the nation as a whole. Politicians, especially presidential candidates, worry about the so-called pocketbook issue just before an election. Congressional candidates, especially challengers, can easily evade responsibility for economic conditions, but presidents are the ones who get the blame or the credit for the economy. Voters tend to reelect incumbents if their economic fortunes are good and vote them out of office if their economic fortunes have worsened. Yet voting behavior and economic conditions are not always correlated at national and individual levels. People do not always vote their pocketbooks because they understand the government cannot be held accountable for everything.

Some of the most prominent economic theories can be summarized as follows: 1. Monetarism Advocated by the famous economist Milton Friedman, monetarism states that inflation occurs, then there is too much money in the economy chasing after too few goods. Monetarism advocates increasing the money supply at a rate about equal to economic growth, then letting the free market operate. This theory answers the traditional concern that libertarians, conservatives, and Republicans have with inflation. 2. Keynesianism. Derived from the work of the English economist John Maynard Keynes, Keynesianism holds that government should create the right level of demand.. The theory assumes that the health of the economy depends on how much of their incomes people save or spend. When demand is too low, government should pump money into the economy by spending more than it collects in taxes. When demand is too high, government should take money out of the economy by increasing taxes or cutting expenditures. This theory answers the traditional concern with unemployment among liberals and Democrats. 3. Economic planning Some view the free market as too undependable to ensure healthy economic activity. They argue that government should plan parts of a country's economic activity when markets fail to account for the public good. For instance ,the prominent economist John Kenneth Galbraith advocated wage and price controls when markets are unable to constrain inflation. Others have argued that government should direct some investments to needed industries that are unable to attract private investment. This is not a popular view in the United States, but it is often found in European, Asian, and African economies. 4. Supply-side tax cuts Advocates of supply-side tax cuts stress that there is a need for less government interference in the market and for lower taxes-that lower taxes create incentives for investment, and the greater economic productivity that results will produce more tax revenue. This theory fits with traditional libertarian and conservative political values but ignores political concerns about both inflation and unemployment. 5. Reaganomics Set in motion by President Reagan in 1981, Reaganomics is a combination of monetarism, supply-side tax cuts, and domestic budget cutting. The goals sought by Reagan were not entirely consistent. He wanted to reduce the size of the federal government, to stimulate economic growth, and to increase military strength. The inconsistencies in Reaganomics were the result of trying to combine concerns about inflation, economic freedom, unemployment, and increasing military spending.

Economic policy-making is complicated, and it is conducted by several actors: 1. Congress As the most important player in economic policy­making, Congress approves all taxes and almost all expenditures. It consents to wage and price controls when appropriate. It is also internally fragmented, with numerous committees setting economic policy. 2. Council of Economic Advisers (CEA) Part of the Executive Office, the CEA includes professional economists sympathetic to the president's view of economics. It forecasts economic trends and analyzes issues. It also prepares the annual economic report that the president sends to Congress. 3. Office of Management and Budget (OMB) Also part of the Executive Office, the OMB prepares estimates of amounts to be spent by federal government agencies, as well as negotiates department budgets. It also ensures that the departments' legislative proposals are compatible with the president's program by creating the budget the president submits to Congress. 4. Secretary of the Treasury As a member of the president's cabinet, the secretary, often close to or drawn from the world of business and finance, is expected to argue the point of view of the financial community. The secretary provides estimates of the government's revenues and represents the nation with bankers and other nations. 5. The Federal Reserve Board (The Fed) Members of the Fed are appointed by the president, confirmed by the Senate, and serve nonrenewable fourteen-year terms. Members are removable for cause. The chairman of the Fed serves for four years, and the term can re renewed. The Fed is independent of both the president and Congress. Its most important function is to regulate, insofar as it can, the supply of money (both in circulation and through reserve rates) and the price of money (in the form of interest rates).

A budget is a policy document that announces how much the government expects to collect in taxes, spend in revenues, and how those expenditures will be allocated among various programs. The Congressional Budget Act of 1974 established procedures to standardize the budgeting process: 1. The president submits the budget. 2. The House and Senate budget committees study the budget after receiving an analysis from the Congressional Budget Office (CBO). 3. Each committee proposes a budget resolution that sets a total budget ceiling, as well as ceilings for each of several spending areas. Congress is expected to adopt these resolutions in order to guide its budget debates. 4. Congress considers appropriations bills (bills that actually fund programs within established limits) and sees whether they are congruent with the budget resolution. Big changes in the budget are not possible because approximately two-thirds of government spending is tied up in entitlements (federal programs like Medicare and Social Security that provide benefits to people who meet stipulated criteria). Several efforts have been made to reduce federal spending. An attempt to end the deficits was made with the Budget Enforcement Act of 1990. Congress voted a tax increase, and the Budget Enforcement Act capped discretionary funding. If entitlement spending increased, either discretionary spending had to be cut or taxes had to be raised. In 2013, the sequester (automatic spending cuts) was used to try to reduce federal spending.

Current tax policy reflects a blend of majoritarian and interest group politics. The tax burden is kept reasonably low (Americans pay less than citizens of most other democratic nations do). Most Americans are required to at least pay something. A progressive tax structure in the United States requires higher-income people to pay taxes at rates higher than those for lower-income residents. In addition, tax loopholes (deductions, exemptions, and exclusions) favor certain groups and usually reduce the progressivism of the tax structure. The extent to which taxes are progressive is a matter of dispute. The economic and political results of taxes on income have also been questioned by politicians and economists who think taxes on consumption are fairer and easier to collect.

Income taxes are the major source of federal revenues. Most revenue came from tariffs until ratification of the Sixteenth Amendment (1913), which authorized income taxes. For many years tax rates varied, being high during wars and low during peacetime. A sweeping tax reform act (the Tax Reform Act of 1986) lowered rates and decreased deductions. Presidents in the last two decades have often advocated increasing rates while keeping deductions low. The desire to balance the budget has switched policy debates to the issue of tax cuts, but entitlement programs such as Social Security and Medicare remain a challenge to fund.

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