Congress: The Senate and

the House of Representatives

“Congress has not unlimited powers to provide for the general welfare,

but only those specifically enumerated.”

—Thomas Jefferson, letter to Albert Gallatin, 1817

Essential Question: What are the structures, powers, and functions of

each house of Congress?

The United States Congress is one of the world’s most democratic governing

bodies. Defined in Article I of the Constitution, Congress consists of the Senate

and the House of Representatives. These governing bodies meet in Washington,

DC, to craft legislation that sets out national policy. Congress creates statutes,

or laws, that become part of the United States Code. Its 535 elected members

and roughly 30,000 support staff operate under designated rules to carry out

the legislative process. In January 2019, Speaker of the House Nancy Pelosi

in the House of Representatives and Vice President Mike Pence in the Senate

gaveled the 116th Congress to order for its new term.

Structure of Congress

After a war with Britain over adequate citizen representation and governance

under the unworkable Articles of Confederation, creating a republican form

of government that reflected citizen and elite views was of top concern for

Americans at the Constitutional Convention. For that reason, the framers

designed Congress as the most democratic and chief policymaking branch. The

First United States Congress opened in 1789 in New York City.

Article I

he bicameral, or two-house, legislature resulted from a dispute at the

Constitutional Convention between small and large states, each desiring

different forms of representation. The Great Compromise (see Topic 1.5)

dictated that the number of representatives in the House would be allotted

based on the number of people living within each state. Article I’s provision

for a census every ten years assures states a proportional allotment of these

members. Together, the members in the House represent the entire public. The

Senate, in contrast, has two members from each state, granting states equal

100 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

representation in that chamber. With this structure, the framers created a

republic that represented both the citizenry at large and the states.

DEMOGRAPHICS OF 116TH CONGRESS (2019–2020)

Classification

Men

Women

African American

Latino

Asian or Pacific Islander

Native American

Caucasian

Born outside U.S.

Total

404

131

56

50

20

405

28

Service in military

With law degrees

96
192

(Statistics largely self-reported. Totals include delegates from U.S.

territories and account for four vacancies.)

he framers also designed each house to have a different character and

separate responsibilities. Senators are somewhat insulated from public opinion

by their longer terms (six years as opposed to two for members of the House),

and they have more constitutional responsibilities than House members.

Because they represent an entire state, each has a more diverse constituency

compared with the House. In contrast, smaller congressional districts give

House members a more intimate constituent-representative relationship (there

are seven small-population states that elect one at-large representative and

two senators, which results in each member of Congress from those states

representing the entire state).

Originally, unlike House members, senators were elected by state

legislators. This practice, which is a form of elite democracy, changed with

the Seventeenth Amendment, ratified in 1913. This amendment broadened

democracy by giving the people of the state the right to elect their senators.

he requirement that both chambers must approve legislation helps prevent

the passage of rash laws. James Madison pointed out that “a second house of

the legislature, distinct from and dividing the power with the first, must always

be a beneficial check on the government. It doubles the people’s security by

requiring the concurrence of two distinct bodies.” This system of checks and

balances in Congress helps keep an appropriate balance between majority rule

and minority rights.

Size and Term Length The more representative House of Representatives

is designed to reflect the will of the people and to prevent the kinds of abuses

CONGRESS: THE SENATE AND THE HOUSE OF REPRESENTATIVES

101

102 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

that took place during the colonial period. Most representatives are responsible

for a relatively small geographic area. With their two-year terms, House

members must consider popular opinions, or unsatisfied voters will replace

them. The entire House faces reelection at the same time.

DIFFERENCES BETWEEN HOUSE AND SENATE

House of Representatives Senate

Qualifications • At least 25 years old

• Citizen for past 7 years

• Resident of state they

represent when elected

• At least 30 years old

• Citizen for past 9 years

• Resident of state they

represent when elected

Unique Powers • Originates revenue bills

• Initiates impeachment

• Breaks tie for president in

Electoral College

• Provides “advice and

consent” on treaties and

presidential appointments

• Handles trial of impeached

officials

Members, Terms, and

Constituencies

• 435 members

• 2-year terms
• Unlimited terms

• 100 members

• 6-year terms

• Unlimited terms

Structures and

Processes

• Centralized and hierarchical

• Rules Committee (majority

party) controls agenda

• Limited debate time

• Powerful Speaker of the

House

• Focus on revenue and

spending

• Less centralized

• Committees do not have as

much authority

• Looser debate (filibuster

allowed but limited by

cloture vote)

• Focus on foreign policy

• Leaders less powerful

except for the powerful

majority leader

Since 1913, the House has been composed of 435 members, with the temporary

exception of adding two more for the annexation of Alaska and Hawaii. Each

congressional district has more than 700,000 inhabitants. The Reapportionment

Act of 1929 mandates the periodic reapportionment and redistribution of U.S.

congressional seats according to changes in the census figures. Each decade, the
U.S. Census Bureau tabulates state populations and then awards the proportional

number of seats to each state. Every state receives at least one seat. States gain, lose,

or maintain the same number of seats based on the census figures. Because almost

all states gain population over a ten-year period, even some growing states will

lose seats if they grow at a proportionately slower rate.

The Senate, in contrast, always has 100 members. George Washington

explained the character of the U.S. Senate with an analogy to cooling hot

coffee. “We pour our coffee into a saucer to cool it, we pour legislation into the

senatorial saucer to cool it.” The framers wanted a cautious, experienced group

to serve as yet another hurdle in the lawmaking process. Only one-third of the

Senate is up for reelection every two years, making it a continuous body. In

Federalist No. 64, John Jay argued, “by leaving a considerable residue of the old

ones [senators] in place, uniformity and order, as well as a constant succession

of official information, will be preserved.” Senators’ six-year terms give them

some ability to temper the popular ideas adopted by the House, since senators

do not have to worry about being voted out of office so soon. The reelection rate

for Senators is nearly 90 percent.

Collectively, these two bodies pass legislation. Bills can originate in either

chamber, except for tax proposals, or revenue laws, which must originate in the

House. To become law, identical bills must pass both houses by a simple majority

vote and then be signed by the president.

Reapportioned House Of Representatives, 2012

10

53

9
4

Gained

Lost

No change

Based on 2010 Census

22

27

14

18 9 16

18

52

12

36
1

WE

14

11

13

27

Caucuses In addition to formal policymaking committees (see Topic 2.2),

Congress also contains groups of like-minded people organized into caucuses.

hese groups usually unite around a particular belief or concern. Each party

has such a group in each house—the Democratic Caucus or the Republican

Party Conference—which includes basically the entire party membership

within each house. These groups gather to elect their respective leaders, to

set legislative agendas, and to name their committee members. Many other

smaller caucuses are organized around specific interests, some that cross

party lines, such as agriculture, business, or women’s issues. Members can

belong to multiple caucuses. Caucuses can have closed-door meetings and can

develop legislation, but they are not officially part of the lawmaking process.
CONGRESS: THE SENATE AND THE HOUSE OF REPRESENTATIVES

103

Since legislators are members of both caucuses and official congressional

committees, they can formulate ideas and legislative strategy in the caucuses,

but they must introduce bills through the official, public committee system.

(See Topic 2.2.)

With their longer terms, senators can build longer-lasting coalitions

and working relationships. Although reelection rates tend to be high, House

members with their shorter terms have more changeable coalition members.

THINK AS A POLITICAL SCIENTIST: COMPARE POLITICAL INSTITUTIONS

Political institutions are government organizations that make, enforce, or

apply laws. Two of the most important political institutions are the House of

Representatives and the Senate, which create our nation’s laws. The framers

designed each to serve specific purposes. Comparing these institutions by finding

similar and different features will help provide a solid understanding of each.

Practice: Describe one similarity or one difference between the Senate and the House

of Representatives related to the categories below:

1. Qualifications of the members

2. Length of term

3. Number of members

4. Role in lawmaking

5. Enumerated powers

Powers of Congress

he framers assigned Congress a limited number of specific powers, or

enumerated powers. Expressly listed in Article I, Section 8 of the Constitution,

they are sometimes referred to as “expressed powers.” These powers allow for

the creation of public policy—the laws that govern the United States.

Power of the Purse

T

he first congressional power enumerated is the power to raise revenue—to tax.

Article I also provides that no money can be drawn from the treasury without the

approval of Congress. Thus, Congress appropriates, or spends, those tax revenues

through the public lawmaking process. Both chambers have committees for

budgeting and appropriations. Congress also has the power to coin money.

he president proposes an annual budget while Congress members, who

often differ on spending priorities, and their committees debate how much

should be invested in certain areas. The budgeting process is complex and

usually takes months to finalize.

104 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

Regulating Commerce

In recent years, Congress has used the commerce clause in Article I, Section 8,

to assume authority over a wide policy area by connecting issues to every type

of interstate and intrastate commerce. In an effort to protect the environment,

for example, Congress has written regulations that apply to manufacturing and

chemical plants to control the emissions these facilities might spew into our air.

Congress can require gun manufacturers to package safety locks with the guns

they sell. The commerce clause was the justification for the Patient Protection and

Affordable Care Act (2010), or “Obamacare,” which requires citizens to purchase

health insurance and requires insurance companies to accept more clients.

However, there have been many legal challenges to wide-ranging

congressional authority based on the commerce clause. The landmark case of

United States v. Lopez (see Topic 1.8) is one of the few modern Supreme Court

decisions that has restricted Congress’s use of this clause to expand the power

of the federal government.

Foreign and Military Affairs

Congress is a key player in U.S. foreign policy, and it oversees the military. It can
raise armies and navies, legislate or enact conscription procedures, mandate

a military draft, and, most important, declare war. Congress determines

how much money is spent on military bases and, through an independent

commission, has authority over base closings. It essentially determines the salary

for military personnel.

Foreign and military policy are determined jointly by Congress and the

president, but the Constitution grants Congress the ultimate authority to

declare war. The framers wanted a system that would send the United States to

war only when deemed necessary by the most democratic branch, rather than

by a potentially tyrannical or power-hungry executive making a solo decision

to invade another country. Yet the framers also wanted a strong military leader

who was responsible to the people, so they named the president the Commander

in Chief of the armed forces. Congress does not have the power to deploy

troops or receive ambassadors, leaving chief influences on foreign policy to the

executive branch.

FOREIGN AND MILITARY POWERS

Congress

• Has the exclusive power to declare war

• Funds the military, foreign endeavors, and foreign aid

• Has oversight of the State and Defense departments and relevant agencies

• Can institute a mandatory military draft to staff the Armed Forces

• Confirms presidential nominations for ambassadors and high-ranking military

personnel—the Senate

• Ratifies treaties with other nations by a two-thirds vote—the Senate

CONGRESS: THE SENATE AND THE HOUSE OF REPRESENTATIVES

105

The President

• Serves as Commander in Chief of the Armed Forces

• Appoints ambassadors and receives foreign ministers

• Negotiates treaties with other nations

• Issues executive orders that can impact foreign policy

• Makes executive agreements with other heads of state

• Commissions the military officers of the United States

he commander-in-chief power was expanded after the Gulf of Tonkin

Resolution (see Topic 2.6) in 1964, which greatly enhanced a president’s

authority in conducting military affairs. After nearly a decade of an unpopular

and ultimately failed Vietnam War, Congress passed the War Powers Act in

1973. This law reigns in executive power by requiring the president to inform

Congress within 48 hours of committing U.S. forces to combat. Also, the law

requires Congress to vote within 60 days, with a possible 30-day extension, to

approve any military force and its funding. The War Powers Act strikes a balance

between the framers’ intended constitutional framework and the need for a

strong executive to manage quick military action in the days of modern warfare.

Congress can choose to waive the 60-day requirement, as it did at the request of

President George W. Bush after the September 11 attacks. (See Topic 1.5.)

Implied Powers

At the end of the list of enumerated powers in Article I is the necessary and

proper clause. It gives Congress the power “to make all Laws which shall

be necessary and proper for carrying into Execution the foregoing Powers.”

Also called the elastic clause, it implies that the national legislature can make

additional laws intended to take care of the items in the enumerated list.

he elastic clause first came into contention in the case of McCulloch v.

Maryland in 1819 over whether or not Congress could establish a bank. (See

Topic 1.8.) The Supreme Court ruled that items in the enumerated list implied

that Congress could create a bank. Since then, the implied powers doctrine

has given Congress authority to enact legislation addressing a wide range of

issues—economic, social, and environmental.

If those who served in the first Congress could take part in the modern

legislature, “they would probably feel right at home,” says historian Raymond

Smock. Other observers disagree and point to burgeoning federal government

responsibilities. Using the elastic clause, Congress has expanded the size and

role of the federal government. For example, it has created a Department of

Education, defended marriage, and addressed various other modern issues

outside the scope of Article I’s enumerated powers.

Differing Powers for House and Senate

Certain powers are divided between the House and the Senate. In addition to

priority on revenue bills, the House also has the privilege to select the president

106 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

if no candidate wins the majority in the Electoral College. The House can

impeach a president or other federal officers in the event that a majority of the

House agree that one has committed “treason, bribery, or other high crimes

and misdemeanors.”

he Senate, representing the interests of the states, also has several exclusive

powers and responsibilities. Its advice and consent power allows senators to

recommend or reject major presidential appointees such as Cabinet secretaries

and federal judges. Senators often recommend people for positions in the

executive branch or as U.S. district judges to serve in their states. High-level

presidential appointments must first clear a Senate confirmation hearing, at

which the appropriate committee interviews the nominee. If the committee

approves the nominee, then the entire Senate will take a vote. A simple majority

is required for appointment. Historically, the upper house, as the Senate is

called, has approved most appointees quickly, with notable exceptions. (See

Topics 2.5 and 2.11.)

T
he Senate also has stronger powers related to foreign affairs. The Senate

must approve by a two-thirds vote any treaty the president enters into with a

foreign nation before it becomes official.

While the House can level impeachment charges, only the Senate can try

and if found guilty, remove the official from office with a two-thirds vote.

Despite their different powers, both chambers have equal say in whether

or not a bill becomes law, since both chambers must approve an identical bill

before it is passed on to the president for signing.

REFLECT ON THE ESSENTIAL QUESTION

Essential Question: What are the structures, powers, and functions of each house

of Congress? On separate paper, complete a chart like the one below.

Powers, Structure, and Function

of the Senate

Powers, Structure, and Function of

the House of Representatives

KEY TERMS AND NAMES

advice and consent

bicameral

caucuses

coalitions

enumerated powers

implied powers

House of Representatives

necessary and proper clause

power of the purse

Senate

Seventeenth Amendment (1913)

War Powers Act (1973)

CONGRESS: THE SENATE AND THE HOUSE OF REPRESENTATIVES

107

2.2

Structures, Powers,

and Functions of Congress

“Mr. Baker [Senate aide] proved especially adept at the math

of the Senate. He would know precisely how many votes a piece

of legislation could garner at any given moment, a valuable skill in

the horse-trading world of Washington politics.”

—Neil Genzlinger, Bobby Baker’s obituary, New York Times, 2017

Essential Question: How do the structures, powers, and functions of

Congress affect the policymaking process?

Congress’s constitutional design shapes how it makes policy. Elected

lawmakers work to improve the United States while representing people of

unique views across the nation. The House and Senate differ overall, and within

each are chamber-specific roles and rules that impact the law and policymaking

process.

Congress is organized into leadership roles, committees, and procedures.

Strong personalities and skilled politicians work their way into the leadership

hierarchy, wielding great influence in running the nation’s government. The

way in which ideas become law, or more often, fail to become law, are essential

to understanding the structures, powers, and functions of Congress.

Policymaking Structures and Processes

he design of Congress and the powers the framers bestowed on the two

chambers within that institution have shaped how the legislative branch makes

policy. Elected lawmakers work to improve the United States while representing

people of unique views across the nation. Formal groups and informal factions

operate differently in the House and Senate.

Congress is organized by house, political party, leadership, and committee.

T

he parties create leadership positions to guide their own party members,

to move legislation, and to carry out party goals. The party with the most

members is the majority party and is in a strong position to set the agenda

through its leaders and committee chairpersons. Standing committees are

where the real work gets done, especially in the more structured House. Some

of the powerful committees are institutions unto themselves, especially in the

108 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

House. Congress’s formalized groups include both lawmaking committees and

partisan or ideological groups.

Leadership

he only official congressional leaders named in the Constitution are the

Speaker of the House, the President of the Senate, and the president pro tempore

of the Senate. The document states that the House and Senate “shall choose

their other Officers.”

At the start of each congressional term in early January on odd years,

the first order of business in each house is to elect leaders. The four party

caucuses—that is, the entire party membership within each house—gather

privately after elections, but days before Congress opens, to determine their

choices for Speaker and the other leadership positions. The actual public vote

for leadership positions takes place when Congress opens and is invariably a

party-line vote. Once the leaders are elected, they oversee the organization of

Congress, help form committees, and proceed with the legislative agenda.

House Leaders Atop the power pyramid in the House of Representatives

is the Speaker of the House, which is the only House leadership position

mentioned in the Constitution. As the de facto leader of the majority party in

the House, the Speaker wields significant power. In 2007, Nancy Pelosi (D-CA)

became the first female Speaker of the House and was reelected in 2019. Paul
Ryan (R-WI) presided as Speaker over the Republican-controlled House before

the Democrats regained the majority in the 2018 midterm elections.

he Speaker recognizes members for floor speeches and comments,

organizes members for conference committees, and has great influence in most

matters of lawmaking.

On the next rung down in the House are the majority and minority leaders.

hese floor leaders direct debate from among their party’s members and guide

the discussion from their side of the aisle. They are the first members recognized

in debate. Party leaders have also become spokespersons for the party. They

offer their party messages through news conferences and in interviews on cable

networks and Sunday talk shows.

Below the floor leader is the deputy leader, or whip, who is in charge of

party discipline. The whip keeps a rough tally of votes among his or her party

members, which aids in determining the optimum time for a vote. Whips

communicate leadership views to members and will strong-arm party members

to vote with the party. Political favors or even party endorsements during a

primary election can change the mind of representatives contemplating an

independent or cross-party vote. The whip also assures that party members

remain in good standing and act in an ethical and professional way. When

scandals or missteps occur, the whip may insist a member step down from

serving as a committee chair or leave Congress entirely.

STRUCTURES, POWERS, AND FUNCTIONS OF CONGRESS

109

Leadership in Congress

House of

Representatives

Speaker of
the House

Majority Leader

Minority Leader

Majority Whip

Minority Whip

Senate

Vice President of

the United States

President

Majority Leader

Pro Tempore

Minority Leader

Majority Whip

Minority Whip

The Congressional leadership represented above results from a mix of constitutional, congressional, and

party definitions. The Speaker is in charge in the House, while the majority leader has the most control
and

influence in the Senate.

Senate Leaders In the Senate, a similar structure exists. The Constitution

names the vice president as the nonvoting President of the Senate, but vice

presidents in the modern era are rarely present. In lieu of the vice president as

the presiding officer, senators in the majority party will share presiding duties.

In case of a tie vote, the Constitution enables the vice president to break it.

Article I also provides for the president pro tempore, or temporary

president. The “pro tem” is mostly a ceremonial position held by the most

senior member of the majority party. The tasks involved with the role include

presiding over the Senate in the absence of the vice president, signing

legislation, and issuing the oath of office to new senators. The role of the

president pro tem in presidential succession was addressed with the Twenty
f

ifth Amendment. Among several provisions, the Twenty-fifth Amendment

states the president pro tem assumes the position of vice president if a vacancy

in the office occurs.

he Senate majority leader wields much more power in the Senate than

the vice president and pro tem. The majority leader is, in reality, the chief

legislator, the first person the chair recognizes in debate and the leader who sets

the legislative calendar and determines which bills reach the floor for debate

and which ones do not. The majority leader also guides the party caucus on

issues and party strategy. Senate leaders do not have final say in the decisions

of individual party members; each makes his or her own independent choice,

and the Senate’s less formal rules for debate enable members to address their

colleagues and the public more easily than in the House. Former Senate

majority leaders have expressed frustration over the effort to guide party

members. Senator Bob Dole (R-KS, 1974–1996), who served in a number of

leadership positions in the Senate, once said the letter “P” was missing from his

title, “Majority Pleader.”

110 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

he Senate whips serve much the same purpose as their House counterparts.

hey keep a tally of party members’ voting intentions and try to maintain party

discipline. The conference chair also serves the same function in the Senate as

in the House, overseeing party matters.

Committees

Committees are not mentioned in the Constitution, but they have been fixtures

in Congress since it first met. Smaller groups can tackle tough issues and draft

more precise laws than the entire House or Senate can. Committees allow
lawmakers to put their expertise to use, and they make the process of moving a

bill to a law manageable. The intricate committee system handles a vast amount

of legislation. Committees dealing with finance, foreign relations, the judiciary,

and other common topics have become permanent, public lawmaking groups.

hey conduct hearings and debate bills under consideration, playing key roles

in the legislative process in both houses.

Standing Committees Permanent committees focused on a particular

policy area are called standing committees. Members of Congress can specialize

in a few topics and become experts in these areas. For example, the House

Energy and Commerce Committee has wide authority on utilities and gasoline,

as well as almost any business matter. The Committee on Transportation

and Infrastructure oversees the creation and maintenance of U.S. highways,

regulates airports, and delivers billions in grants.

Committee chairpersons are invariably senior members in the majority

party experienced on that committee. The vice chair or “ranking member” is

the senior committee member from the minority party. The majority party

always holds the majority of seats on each committee and therefore controls

the flow of legislation because a bill must first clear committee with a majority

vote before it can move to the House or Senate floor for a vote.

As part of the Senate’s advice and consent role, standing committees in this

body hold confirmation hearings for presidential nominations. For example,

a nominated secretary of defense must appear before the Armed Services

Committee to answer individual senators’ questions. After this hearing, a

majority can recommend the nominee to the full Senate for approval.

Standing committees have a number of other vital roles. For example, the

House Judiciary Committee drafts crime bills that define illegal behavior and

outline appropriate punishments. It also handles impeachments. In 1974, the

House Judiciary Committee voted 27 to 11 to recommend impeachment of

President Richard Nixon. He resigned before the entire House took a vote. On

December 13, 2019, this committee voted for articles of impeachment against

President Donald Trump. The full House voted to impeach him five days later.

Members want to serve on the powerful House Ways and Means

Committee, a committee exclusive to the House that determines tax policy.

he Ways and Means Committee is the first to outline details when proposals

are put forward to raise or lower income taxes. Other members want to serve

STRUCTURES, POWERS, AND FUNCTIONS OF CONGRESS

111

on the Appropriations Committees, which are found in both houses. These two

committees influence or control the “purse strings.”

Lawmakers also seek committee appointments in fields in which they have

expertise, or that have special interest for their state or district. For example,

nearly 100 members of Congress have served in the Armed Forces; these

members are well qualified to shape Congress’s military policy. Some lawmakers

have high-level business experience and will influence commerce regulations

or international trade law. The Democrats and Republicans each have a

committee for the purpose of assigning members to standing committees. The

Democrats’ Steering and Policy Committee and the Republicans’ Committee

on Committees recommend certain members for committee assignments, but

ultimately each full house votes to approve committee membership.

COMMITTEE TYPES

Standing: Permanent committees that handle most of Congress’s work

Joint: Members of both houses that address a long-term issue or program

Select or Special: Temporary committee that handles a particular issue or investigation

Conference: House and Senate members who reconcile similar bills

Congress has a few permanent joint committees that unite members from

the House and Senate, such as one to manage the Library of Congress and the
Joint Committee on Taxation. Members of these committees do mostly routine

management and research.

Both houses form temporary or select committees periodically for some

particular and typically short-lived purpose. A select or special committee

is established “for a limited time period to perform a particular study or

investigation,” according to the U.S. Senate’s online glossary. “These committees

might be given or denied authority to report legislation to the Senate.” Select

committees can be exclusive to one house or can also have joint committee status.

Notable select committees have investigated major scandals and events,

such as the 2012 terrorist attack on the U.S. Consulate in Benghazi, Libya.

hese groups also investigate issues to determine if further congressional

action is necessary. Recently the House created a select committee on Energy

Independence and Global Warming. A bill originally introduced in 1989, H.R.

40, was reintroduced in 2019 to establish a select committee to study the effects

of slavery and possible reparations for decedents of the formerly enslaved.

When a bill passes both houses but in slightly differnet forms, a temporary

conference committee is created to iron out differences on the bill. It is rare

that legislation on a particular issue will be identical when approved by both

the House and Senate. When two similar bills pass each house, usually a

compromise can be reached. Members from both houses gather in a conference

committee for a markup session, a process by which the bill is edited, or marked

up. The final draft must pass both houses before going on to possibly receive

the president’s signature.

UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

112

In addition to creating bills and confirming presidential appointments,

committees also oversee how the executive agencies administer the laws

Congress creates. Through its committees, Congress conducts congressional

oversight to ensure that executive branch agencies, such as the FBI or the

TSA, are carrying out the policy or program as defined by Congress. When

corruption or incompetence is suspected, committees call agency directors to

testify. Oversight hearings also may simply be fact-finding exchanges between

lawmakers and Cabinet secretaries or agency directors about congressional

funding, efficiency, or just general updates. (See Topic 2.14 for more on

congressional oversight.)

Committees and Rules Unique to the House

Both the House and Senate follow parliamentary procedure outlined in Robert’s

Rules of Order, guidelines for conducting discussion and reaching decisions

in a group. With so many members representing so many legislative districts,

however, the House has rules that limit debate. A member may not speak for

more than an hour and typically speaks for less. These legislators can offer

only germane amendments to a bill, those directly related to the legislation

under consideration. In the House, amendments to bills typically must first be

approved by the committee overseeing the bill.

he presiding officer—the Speaker of the House or someone he or she

appoints—controls chamber debate. House members address all their remarks

to “Madam Speaker” or “Mister Speaker” and refer to their colleagues by the

state they represent, as in “my distinguished colleague from Iowa.” The control

the presiding officer enjoys, time limits, and other structural practices help

make the large House of Representatives function with some efficiency.

he House Rules Committee is very powerful. It can easily dispose of a

bill or define the guidelines for debate because it acts as a traffic cop to the

House floor. Nothing reaches the floor unless the Rules Committee allows it.

his committee generally reflects the will and sentiment of House leadership
and the majority caucus. It impacts every House bill because it assigns bills to

the appropriate standing committees, schedules bills for debate, and decides

when votes take place. The entire House must vote to make a law, but the

Rules Committee wields great power in determining what issues or bills other

members will vote on.

he Committee of the Whole is also unique to the House. It includes but

does not require all representatives. However, the Committee of the Whole

is more of a state of operation in which the House rules are relaxed than an

actual committee. It was created to allow longer debate among fewer people

and to allow members to vote as a group rather than in an individual roll call.

Additionally, the otherwise nonvoting delegates from U.S. territories—Puerto

Rico, Guam, and others—can vote when the House operates in the Committee

of the Whole. Only 100 members must be present for the Committee of the

Whole to act. When it has finished examining or shaping a bill, the Committee

“rises and reports” the bill to the House. At that point the more formal rules of

STRUCTURES, POWERS, AND FUNCTIONS OF CONGRESS

113

procedure and voting resume, and, if a quorum is present, the entire House will

vote on final passage of the bill.

A modern device that functions as a step toward transparency and

democracy in the House is the discharge petition. The discharge petition can

bring a bill out of a reluctant committee. The petition’s required number of

signatures has changed over the years. It now stands at a simple majority to

discharge a bill out of committee and onto the House floor. Thus, if 218 members

sign, no chairperson or reluctant committee can prevent the majority’s desire to

publicly discuss the bill. This measure may or may not lead to the bill’s passage,

but it prevents a minority from stopping a majority on advancing the bill and is

a way to circumvent leadership.

SELECTED CONGRESSIONAL COMMITTEES AND

KEY POLICY FOCUS IN THE 116TH CONGRESS

House of Representatives

Senate

Ways and Means

Determines tax policy

Rules

Determines House proceedings

Armed Services

Oversees the military

Judiciary

Finance

Oversees spending and budgeting

Armed Services

Oversees the military

Foreign Relations

Guides U.S. foreign policy

Judiciary

Drafts crime bills; impeachments

Energy and Commerce

Regulates energy and business

Confirms judges; oversees courts

Agriculture, Nutrition, and Forestry

Addresses farming, food, and nature

In 2019, there were 20 standing committees in the House and 16 in the Senate.

Rules and Procedures Unique to the Senate

he smaller Senate is much less centralized and hierarchical than the House

with fewer restrictions on debate. Senators can speak longer. However, the
presiding officer has little control over who speaks when, since he or she must

recognize anyone who stands to speak, giving priority to the leaders of the

parties. Like representatives, senators are not allowed to directly address anyone

but the presiding officer. They refer to other senators in the third person (“the

senior senator from Illinois,” for example).

Senators can propose nongermane amendments. They can add

amendments on any subject they want. Senators also have strategic ways to

use their debate time. For example, they may try to stall or even kill a bill by

speaking for an extremely long time, a tactic known as the filibuster, to block

a nomination or to let the time run out on a deadline for voting on a bill.

Filibusters are a Senate procedure (not a constitutional power) that any senator

may invoke and use to wear down the opposition or extract a deal from the

Senate leadership. In contrast, the only House members who are allowed to

speak as long as they want are the Speaker of the House, the majority leader,

UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

114

and the minority leader. On February 6, 2018, House Minority Leader Nancy

Pelosi spoke for eight hours straight in support of protections for people who

were brought into the country illegally when they were children, the so-called

“DREAMers.” She could not take a seat or a bathroom break for the entire time

or else she would have had to yield the floor.

he Senate also uses measures that require higher thresholds for action

than the House and that slow it down or speed it up. These include unanimous

consent—the approval of all senators—and the hold, a measure to stall a bill.

Before the Senate takes action, the acting Senate president requests unanimous

consent to suspend debate. If anyone objects, the motion is put on hold or at

least stalled for discussion. For years, senators abused this privilege, since a few

senators, even one, could stop popular legislation. Then and now, senators will
place a hold on a motion or on a presidential appointment as a bargaining tool.

Such delays in the past have brought about changes in the rules. As the

United States stepped closer to war in 1917, President Woodrow Wilson called

for changes in Senate procedures so that a small minority of senators could not

block U.S. action in arming merchant ships for military use. A filibuster had

blocked his armed neutrality plan before the United States’ entrance into World

War I. President Wilson was enraged. He said the Senate “is the only legislative

body in the world which cannot act when its majority is ready for action. A

little group of willful men, have rendered the great government of the United

States helpless.”

A special session created Rule 22, or the cloture rule, which enabled and

required a two-thirds supermajority to stop debate on a bill, thus, stopping a

ilibuster and allowing for a vote. In 1975, the Senate lowered the standard to

three-fifths, or 60 of 100 senators. Once cloture is reached, each senator has the

privilege of speaking for up to one hour on that bill or topic.

Foreign Policy Functions While both houses have a Foreign Affairs

Committee, the Senate has more foreign relations duties. The framers gave

the upper house the power to ratify or deny treaties with other countries. The

Senate also confirms U.S. ambassadors. Because the Senate is smaller and

originally served as agents of the states, the framers gave it more foreign policy

power than the House. In Federalist No. 75, Hamilton pointed to its continuity.

“Because of the fluctuating and . . . multitudinous composition of [the House,

we can’t] expect in it those qualities . . . essential to the proper execution of such

a trust.” The chair of the Senate Foreign Relations Committee works closely and

often with the president and secretary of state to forge U.S. foreign policy.

The Legislative Process

Lawmaking procedures in each house have been developed to guide

policymaking and legislative customs. Both bodies have defined additional

leaders that guide floor debate, assure party discipline, and serve as liaisons

to the opposing party, the president, and the media. The framers declared in

Article I that each house would determine its own rules as further assurance of

a bicameral system.

STRUCTURES, POWERS, AND FUNCTIONS OF CONGRESS

115

How a Bill Becomes a Law

Draft Bills

from members of Congress, the Administration or others

Introduction, House

H.R. ####

sent to committee,

or desk or calendar

Committee

action/inaction

Hearings/Markup

Vote to report bill

writing report

Introduction, Senate

S. ####

sent to committee,

or desk or calendar

Floor Activity

Refer to Rules Committee

Debate

Votes

Committee

action/inaction

Hearings/Markup
Vote to report bill

writing report

Floor Activity

Debate

Votes

Conference Committee formed – resolving differences

(if necessary)

Vote

President – signs or vetoes

Law – printed, codified

Regulatory activity

Introducing and Amending Bills

Only House or Senate members can introduce a bill. Today, however, the actual

authors of legislation are more often staffers with expertise, lobbyists, White

House liaisons, or outside professionals. When a bill’s sponsor (the member

who introduces it and typically assumes authorship) presents it, the bill is

officially numbered. Numbering starts at S.1 in the Senate or H.R.1 in the

House at the beginning of each biennial Congress.

Several events take place in the process, creating opportunities for a bill to

drastically change along the way. Additional ideas and programs can become

attached to the original bill. The nongermane amendments, or riders, are

often added to benefit a member’s own agenda or programs or to enhance the

116 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

political chances of the bill. Representative Morris (“Mo”) Udall (D-AZ) once

expressed frustration when he had to vote against his own bill, because it had

evolved into legislation he opposed.

How each house, the president, and the public view a bill will determine

its fate. The rough-and-tumble path for legislation often leads to its death. In

a typical two-year period, thousands of bills are introduced and only a small
portion are enacted into law. In the 115th Congress (January 2017–January

2019), representatives and senators introduced more than 13,000 bills and

resolutions. About 9 percent, or 1,150, were enacted.

An omnibus bill includes multiple areas of law and/or addresses multiple

programs. A long string of riders will earn it the nickname “Christmas Tree bill”

because it often delivers gifts in the form of special projects a legislator can take

home, and, like the ornaments and tinsel on a Christmas tree, the “decorations”

so many legislators added to the bill give it an entirely different look.

Pork-Barrel Spending One product of these legislative add-ons is pork

barrel spending—funds earmarked for specific purposes in a legislator’s

district. Federal dollars are spent all across the nation to fund construction

projects, highway repair, new bridges, national museums and parks, university

research grants, and other federal-to-state programs. Members of Congress try

to “bring home the bacon,” so to speak. Riders are sometimes inserted onto bills

literally in the dark of night by a powerful leader or chair, sometimes within

days or hours before a final vote to avoid debate on them.

Constituents who benefit from pork barrel spending obviously appreciate

it. Yet, in recent years the competition for federal dollars has tarnished

Congress’s reputation. Citizens Against Government Waste reported an

explosion of earmarks from 1994 to 2004. Congress passed more than five

times as many earmarked projects, and such spending rose from $10 billion

to $22.9 billion.

he most egregious example of pork barrel politics came when Senator

Ted Stevens (R-AK) added a rider to a bill primarily meant to provide armor

for U.S. troops in Iraq. The rider called for spending more than $400 million

to connect a small community of about 50 residents and a regional airport to

the Alaska mainland. Critics dubbed the construction project “The Bridge to

Nowhere.”
Assigning Bills to Committee

he Senate majority leader and the House Rules Committee assign bills to

committees in their respective chambers. Sometimes multiple committees have

overlapping jurisdiction. A military spending bill may be examined by both

the Armed Services Committee and the Appropriations Committee. In that

case, the bill may be given multiple referral status, allowing both committees

to address it simultaneously. Or it might have sequential referral status, giving

one committee priority to review it before others. Frequently, subcommittees

with a narrower scope are involved.

STRUCTURES, POWERS, AND FUNCTIONS OF CONGRESS

117

Source: Department of Defense, Staff Sgt. Sean K. Harp

The secretary of defense and another ranking Pentagon official testify before a House Appropriations

subcommittee.

In committee, a bill goes through three stages: hearings, markup, and

reporting out. If the committee “orders the bill,” then hearings, expert testimony,

and thorough discussions follow. The chair will call for a published summary

and analysis of the proposal with views from other participants, perhaps

testimony from members of the executive branch or interest groups. Then the

bill goes through markup, where committee members amend the bill until they

are satisfied. Once the bill passes committee vote, it is “reported out” on the

House or Senate floor for debate. The ratio of “yeas” to “nays” often speaks to

the bill’s chances there. Further amendments are likely added. From this point,

many factors can lead to passage and many more can lead to the bill’s failure.

he committee chair can also “pigeonhole” a bill—decide not to move it

forward for debate until a later time, if at all.

Voting on Bills
Many lawmakers say one of their hardest jobs is voting. Determining exactly

what most citizens want in their home state is nearly impossible. Legislators

hold town hall meetings, examine public opinion polls, and read stacks of mail

and emails to get an idea of their constituents’ desires. Members also consider

a variety of other factors in deciding how to vote.

“Very often [lawmakers] are not voting for or against an issue for the

reasons that seem apparent,” historian David McCullough once explained.

“They’re voting for some other reason. Because they have a grudge against

someone . . . or because they’re doing a friend a favor, or because they’re willing

to risk their political skin and vote their conscience.”

118 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

Logrolling Another factor affecting lawmaking is logrolling, or trading

votes to gain support for a bill. By agreeing to back someone else’s bill, members

can secure a vote in return for a bill of their own.

Generating a Budget

One of the most important votes congressional members take is on the question

of how to pay government costs. The budgeting process is a complicated,

multistep, and often year-long process that begins with a budget proposal

from the executive branch and includes both houses of Congress, a handful of

agencies, and interest groups.

In the 1970s, Congress created the Office of Management and Budget

(OMB) and established the budgeting process with the Congressional Budget

and Impoundment Control Act (1974). The OMB is the president’s budgeting

arm. Headed by a director who is essentially the president’s accountant,

the OMB considers the needs and wants of all the federal departments and

agencies, the fiscal and economic philosophy of the president, federal revenues,

and other factors to arrange the annual budget.

he 1974 act also defines the stages in reconciling the budget—passing

changes to either revenue or spending by a simple majority in both houses

with only limited time for debate—a process that can be used only once a year.

It calls for Congress to set overall levels of revenues and expenditures, the size

of the budget surplus or deficit, and spending priorities. Each chamber also

has an appropriations committee that allots the money to federal projects. The

Senate Finance Committee is a particularly strong entity in federal spending.

Congress also created a congressional agency made of nonpartisan accountants

called the Congressional Budget Office (CBO). This professional staff of

experts examines and analyzes the budget proposal and serves as a check on

the president’s OMB.

Sources of Revenue For fiscal year 2019, the government expected to take

in about $3.4 trillion. Every year, government revenue comes from five main

sources:

• Individual income taxes—taxes paid by workers on the income

they made during the calendar year. People pay different tax rates

depending on their income level.

• Corporate taxes—taxes paid by businesses on the profits they made

during the calendar year.

• Social insurance taxes (sometimes called payroll taxes)—taxes paid

by both employees and employers to fund such programs as Social

Security, Medicare, and unemployment insurance.

• Tariffs and excise taxes—taxes paid on certain imports or products.

he tariff on imports is meant to raise their price so U.S.-made goods

will be more affordable and competitive. Excise taxes are levied

on specific products—luxury products, for example, or products

STRUCTURES, POWERS, AND FUNCTIONS OF CONGRESS

119

associated with health risks, such as cigarettes—as well as on certain

activities, such as gambling.

• Other sources—taxes that include interest on government holdings

or investments and estate taxes paid by people who inherit a large

amount of money.

he table below shows the percentage of revenue from each category between

1950 and 2020.

CATEGORIES OF GOVERNMENT REVENUE

Fiscal

Year

1950

1960

1970

1980

1990

2000

2010

Individual

Income Tax

% of total

revenue

39.9

44

46.9

47.2

45.2

Corporate

Income Tax

% of total
revenue

26.5

23.2

17

Social

Insurance and

Retirement

(Payroll taxes)

% of total

revenue

Excise

% of total

revenue

11

15.9

23

12.5

9.1

49.6

41.5

2020 (est)

49.6

10.2

8.9

7.3

Source: U.S. Government Publishing Office, 2019 Budget

30.5

36.8

32.2
40

35.7

19.1

12.6

9.2

4.0

3.4

3.4

3.1

3.1

Other

% of total

revenue

3.4

4.2

4.8

5.4

4.5

6.5

4.2

As you can see, the highest percentage of government revenue comes from

individual income taxes. The budget for fiscal year 2019 called for spending $4.4

trillion. Each year spending falls into three categories: mandatory spending,

discretionary spending, and interest on debt.

Mandatory Spending

Mandatory spending is payment required by law, or mandated, for certain

programs. These programs include Social Security, Medicare, Medicaid,

unemployment insurance, and other special funds for people in temporary

need of help. Congress has passed laws determining the eligibility for these

programs and the level of payments, so on the basis of those laws mandatory

spending happens automatically. Of the $4.4 trillion, mandatory spending

for 2019 was expected to be $2.7 trillion, more than 60 percent of the federal

budget.

You may have noticed that the expected revenue for 2019 was $3.4 trillion,

while the expected outlay was $4.4 trillion. The difference between spending

and revenue, close to a trillion dollars in 2019, is the deficit. As in previous

120 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

years, the government has to borrow money to pay that deficit, and each year’s

loans add to the already large national debt of $20 trillion.

he interest payments on the national debt are massive and must be a part of

the annual budget. In 2020, the interest will be more than $400 billion, or about

10 percent of the federal budget, and must also be paid out of each year’s revenue.

Some consider interest on debt as mandatory spending, since the government

must pay its creditors or risk default, which would result in a serious financial crisis.

Discretionary Spending

Discretionary spending is funding that congressional committees debate

and decide how to divide up. This spending—about 38 percent of the 2019

budget—pays for everything else not required under mandatory spending. The

chart below shows the percentage of government spending from 1950 to 2020

in various categories.

CATEGORIES OF GOVERNMENT SPENDING

Fiscal

Year

1950

1960

1970
1980

1990

2000

2010

2020

(est)

Defense

(Military)

% of

total

revenue

32.2

52.2

41.8

22.7

23.9

16.5

Human

Resources*

% of total

revenue

33.4

28.4

38.5

53

49.4

Physical

Resources**

% of total
revenue

8.6

8.7

8.0

Interest

on Debt

% of

total

revenue

11.3

Other

Functions***

% of total

revenue

18.7

7.5

7.4

11.2

10.1

62.4

20.1

15.9

69

69.8

4.7

2.6

3.0

Source: U.S. Government Publishing Office, 2019 Budget

8.9
14.7

12.5

5.7

9.7

8.4

8.8

7.6

4.8

6.4

5.0

3.6

Undistributed

Offsetting

Receipts****

% of total

revenue–4.3–5.2–4.4–3.4–2.9–2.4–2.4–2.0

* Includes Education, Health and Human Services, Housing and Urban Development, and mandatory

spending on Social Security, Medicare, Income Security, and Veterans Benefits and Services

** Includes Energy, Natural Resources and Environment, Commerce and Housing Credit, Transportation,

Community and Regional Development

*** Includes International Affairs; Science, Space, and Technology; Agriculture; Administration of Justice;

General Government

**** Includes government earnings on oil and gas leases and collection of funds from government

agencies for their employees’ retirement and other benefits

STRUCTURES, POWERS, AND FUNCTIONS OF CONGRESS

121

As the chart on government spending shows, human resources spending is

the largest category of discretionary spending. In 2020 it will account for more

than half of discretionary spending. The rest of discretionary spending needs

must be met by what remains.

Between 1950 and 2020, government spending in the Human Resources

category, most of which is mandatory, has grown from about 30 percent of

revenue to about 70 percent. That increase needs to be balanced with a

decrease in discretionary spending or an increase in revenue or national debt.

Conservatives tend to argue that people’s tax burden is already significant and

that instead of raising taxes or increasing debt, the government should pass

laws that reduce the social programs that are responsible for most mandatory

spending. Liberals tend to argue that rich people can bear a burden of higher

taxes—historically the rich have paid taxes at a higher rate than they do

today—and that the mandated social programs serve a vital function in an

economy with a vastly unequal distribution of wealth. These principles, as well

as pressures from a variety of interest groups (see Topic 5.6), are behind the

annual push and pull of budget negotiations in Congress.

THINK AS A POLITICAL SCIENTIST: DESCRIBE THE DATA PRESENTED

Political scientists use their knowledge of political processes and institutions

along with data available each year to understand changes in the patterns of

government revenue and spending. They identify trends and then look for

causes for these trends, reasons for the causes and/or effects, the significance

of the causes and/or effects, and the implications of the changes over time.

Being able to explain causes and effects is necessary for devising solutions to

the many challenges facing government.

Practice: Review the tables on page 120 (Categories of Government Revenue) and

page 121 (Categories of Government Spending) and complete the following tasks:

1. Study the table of revenue over time and identify one downward trend and one

upward trend.

2. Study the table of government spending over time and identify the only spend

ing category that has consistently risen.

3. Explain why the other categories of spending decreased.

4. Explain the significance of the changes over time in federal spending and their

effect on possible directions the federal budget might take in the future.

122 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

123 STRUCTURES, POWERS, AND FUNCTIONS OF CONGRESS

REFLECT ON THE ESSENTIAL QUESTION

Essential Question: How do the structures, powers, and functions of Congress

affect the policy-making process? On separate paper, complete a chart like the one

below.

Senate House of

Representatives

Committees and Policymaking

Unique Rules and Procedures

KEY TERMS AND NAMES

cloture rule

Committee of the Whole

conference committees

deficit

discharge petitions

discretionary spending

filibuster

germane

hold

joint committees

logrolling

mandatory spending

omnibus bill

pork-barrel spending

President of the Senate

president pro tempore

rider

Rules Committee

select committees

Senate majority leader

Speaker of the House

sponsor

unanimous consent

Ways and Means Committee

whip

2.3

Congressional Behavior

“. . .in the contemporary Congress—the belief, especially in the House,

that deliberation, fairness, bipartisanship, and debate are impediments to

the larger goal of achieving political and policy success.”

—Norm Ornstein and David Mann, The Broken Branch, 2006

Essential Question: How is congressional behavior influenced by

election processes, partisanship, and divided government?

In December 2018, the longest government shutdown in the United States

began. Among the causes of the shutdown were disagreements over financing

a U.S.-Mexico border wall and funding government agencies. Democrats and

Republicans each rejected proposals of the other and could not find common

ground to move the budget talks along. Numerous government agencies were

affected, and some had to partially stop providing their services; the most

notable was the Transportation Security Administration (TSA). When New

York’s LaGuardia Airport had to shut down due to TSA short staffing, the

population and the government took notice. After 35 days, the shutdown came

to an end when President Trump signed a bipartisan spending bill.

Influences on Congress

Congress’s effectiveness is determined by its ideological division, the changing

nature of the job, the citizens lawmakers represent, and the way lawmakers

represent them. Intensifying partisanship has caused gridlock—the

“congestion” of opposing forces that prevents ideas from moving forward—

within each house and between the Congress and the president. Also, the

reshaping of House voting districts has created one-party rule in several

districts, making winning legislative seats too easy for some members and

practically impossible for others. Bitter election contests and longer campaign

periods have put Republican and Democratic members at further odds. And

legislators’ differing approaches on voting have shaped the institution.

Partisanship and Polarization

he legislature has developed into a partisan and sometimes uncivil institution.

A variety of factors has driven a wedge between liberal and conservative

members (see Topic 4.7) and has placed them at points farther from the middle

on each end of the ideological spectrum. From the 1950s into the 1970s,

124 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

political scientists complained that on many issues it was difficult to tell the

parties apart. As Republicans retired, more conservative Republicans replaced

them. Southern Democrats, once a moderating force in Congress, have all but

disappeared. Party-line voting is much more common than it once was, while

straying from party positions has become dangerous for those interested in

reelection.

Voting Models

Party leaders encourage members to follow the party-line vote, especially if

political favors are expected. Other members are ideologically aligned with certain

groups who back them at election time. Those following the lead of their party or

some other group are operating in what is known as an organizational way.

However, different lawmakers use differing voting models, or approaches

to how they vote. Those members trying to reflect the will of their constituency,
especially in the House, follow the delegate model. At a town hall meeting

in one member’s district, an irritated and upset constituent shot down his

representative’s explanation for an unpopular vote. “We didn’t send you to

Washington to make intelligent decisions,” the angry voter said, “we sent you

to represent us.” That representation can be substantive—that is, advocating on

behalf of certain groups of constituents—or it can be descriptive, advocating

not only for the views of constituents but also for the factors that make those

constituents unique, such as geography, occupation, gender, and ethnicity.

Some members, especially in the Senate, vote according to the trustee

model. Representatives believe they are entrusted by their constituency to use

their best judgment, regardless of how constituents may view an issue. This

approach sidesteps any concern over an uninformed constituency reacting

from emotion rather than reason and knowledge.

he politico model of voting attempts to blend the delegate and trustee

models. That is, lawmakers consider a variety of factors and decide their action

or vote for whatever political calculations make the most sense to them at

the time, especially when there seems to be little public concern. On matters

generating strong public opinion, representatives using the politico model

would take those opinions strongly into account.

Redistricting

Following the constitutionally required census every ten years, the reshaping

of congressional districts based on shifts in population has influenced

congressional behavior. State legislatures’ redistricting processes are often

competitive and contentious, and members of both parties vie to strengthen

their party’s chances of winning congressional elections. The redistricting

process has increased partisanship and decreased accountabilities. The majority

party in the state legislature often determines the new statewide congressional

map, usually benefiting that party.

How district boundaries are drawn has an enormous impact on levels of

democratic participation and the makeup of the House of Representatives,

CONGRESSIONAL BEHAVIOR

125

which in turn has an enormous impact on public policy. Until the 1960s,

legislative districting was regarded as having too much political and partisan

conflict for the Supreme Court to get involved, since the Court’s reputation of

neutrality is vital to its authority. However, a landmark decision in 1962 opened

the door for the Supreme Court to play a role in making legislative districts as

democratic as possible.

MUST-KNOW SUPREME COURT CASE: BAKER V. CARR (1962)

The Constitutional Question Before the Court: Can the Supreme Court render

judgment on the constitutionality of legislative districts?

Decision: Yes, for Baker, 6:2

Before Baker: In 1946, the Court decided in Colegrove v. Green that if a state

legislature wasn’t dividing up congressional districts fairly, it was the people’s duty

to force the legislature’s hand or to vote the legislators out of office. Political scientist

Kenneth Colegrove of Northwestern University had brought suit against Illinois

officials to stop the upcoming election because the congressional districts lacked

“compactness of territory and approximate equality of population.” The Supreme Court

held that the districts were constitutional, since no law required districts to be compact

and equal in population. Justice Frankfurter went further, stating the redistricting

process was an issue that would take the Court into the “political thicket,” a place it

shouldn’t go.

The Facts: A Tennessee law from 1901 laid out guidelines for redrawing state

legislative boundaries, and the state constitution required redistricting every ten years

based on census reports. However, the legislature had failed to redraw the state’s

95 voting districts since the census of 1900 and instead had continued to apply the

apportionment guidelines from the 1901 law. Over the years, the cities of Nashville,
Memphis, Chattanooga, and Knoxville grew, while rural areas developed much more

slowly. As a result, the rural areas kept much lower constituent-to-lawmaker ratios.

This disparity strengthened some rural citizens’ votes and diluted those of some urban

voters. For example, one-third of the voters living in the rural areas were electing

two-thirds of the state’s legislators, so citizens in these districts had a stronger voice

on Election Day than voters in the urban districts. In the most extreme cases, some

voters had one-twentieth the voting power of other citizens. This practice resulted in

minority rule, an outcome in conflict with democratic principles of majority rule and

fair representation, since a minority of voters had the majority of voting power. Yet

legislators were dissuaded from voting for new maps because they could lose power in

the redistricting.

In 1959, Charles Baker and several other litigants sued the Tennessee secretary of

state—typically a state’s chief election official—because the populations in various

state legislative districts varied greatly. The fact that one person’s vote was not

necessarily equal to another person’s vote, Baker said, violated the equal protection

clause of the Fourteenth Amendment.

Reasoning: Based on this political inequality, the petitioner wanted the question for

the Court to be, “Do Tennessee’s outdated and disproportionally populated legislative

districts violate the equal protection clause of the Fourteenth Amendment?” But the

126 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

Court, having decided in Colegrove, had to first address the question of its jurisdiction.

Was the issue a political question, one for the legislature and ultimately the people to

decide? Or was it a justiciable question, a question capable of being answered with

legal reasoning and, therefore, within the Court’s jurisdiction?

The Court decided the matter was justiciable and ruled that the Court can intervene

when states do not follow constitutional principles in defining political borders, since

those practices undermine the democratic ideal of an equal voice for all voters. The

Court also developed a set of six criteria for determining when a question is political

and therefore outside of the realm of the Court. But it gave no judgment on the uneven
districts and let the lower courts then determine if in fact an inequality existed.

Chief Justice Earl Warren served from 1953 to 1969, overseeing a number of dramatic

landmark cases that protected civil liberties and promoted civil rights. Yet, he said after

he retired that Baker v. Carr was the most important case during his tenure. It helped

establish the “one person-one vote” principle that greatly expanded democratic

participation and the voting rights of minorities.

The Court’s Majority Opinion by Mr. Justice William Brennan:

. . . [W]e hold today only (a) that the court possessed jurisdiction of the subject

matter; (b) that a justiciable cause of action is stated upon which appellants

would be entitled to appropriate relief, and (c) because appellees raise the issue

before this Court, that the appellants have standing to challenge the Tennessee

apportionment statutes. Beyond noting that we have no cause at this stage to

doubt the District Court will be able to fashion relief if violations of constitutional

rights are found, it is improper now to consider what remedy would be most

appropriate if appellants prevail at the trial . . .

. . . the 1901 statute constitutes arbitrary and capricious state action, offensive

to the Fourteenth Amendment in its irrational disregard of the standard of

apportionment prescribed by the State’s Constitution or of any standard, effecting

a gross disproportion of representation to voting population. The injury which

appellants assert is that this classification disfavors the voters in the counties

in which they reside, placing them in a position of constitutionally unjustifiable

inequality vis-a-vis voters in irrationally favored counties. A citizen’s right to a vote

free of arbitrary impairment by state action has been judicially recognized as a

right secured by the Constitution when such impairment resulted from dilution by a

false tally, or by a refusal to count votes from arbitrarily selected precincts, or by a

stuffing of the ballot box . . .

We conclude that the complaint’s allegations of a denial of equal protection

present a justiciable constitutional cause of action upon which appellants are

entitled to a trial and a decision.

Since Baker: The effect of the Court’s decision in Baker v. Carr was widespread, since

not only Tennessee but all states had to redraw legislative boundaries as a result

because each person’s vote had to be weighted equally. In the 1964 case of Reynolds v.

Sims, the Court reaffirmed its role in apportionment issues.

Political Science Disciplinary Practices: Analyze, Interpret, and Apply the Decision

The Supreme Court’s decision in the Baker case overturned precedent established in

the Colegrove v. Green decision.

CONGRESSIONAL BEHAVIOR

127

Apply: Complete the following tasks.

1. Identify the constitutional principle at issue in this case.

2. Explain how the Court’s reasoning in the majority opinion supported the opin

ion.

3. Explain differences between the opinion in Colegrove v. Green and the opinion

in Baker v. Carr.

Gerrymandering

Too often, there are illogical district lines drawn to give the advantage to

one party, a process called gerrymandering. Districts in which a party

consistently wins by more than 55 percent of the vote are considered safe seats;

those districts with closer elections are referred to as marginal seats or swing

districts. Countless districts across the United States have been carved out to

guarantee safe seats and one-party rule through a process known as partisan

gerrymandering. Today, each party has more than 180 safe seats in Congress,

meaning there are only about 75 marginal seats up for grabs. Certain victory

for incumbents or for candidates of the majority party of districts with safe

seats lowers the incentive to compromise and raises the incentive to stick with

party doctrine. The large number of safe seats encourages a vast proportion

of Congress members to take a far left or far right position. Partly because of

that divide, at the end of a legislative session, fewer policies that address and
appease the middle—the vast majority of the American people—will ever get

beyond a committee hearing.

his gerrymandering of safe-seat congressional districts has sometimes

made the primary election the determining race and made the general election

in November a mere formality. “Getting primaried” has become the new

term explaining how an ideologically more extreme challenger can expose an

incumbent’s record of compromise or tilt away from party positions in order to

defeat him or her when the party faithful make that decision. Such challengers

are often backed by special interests.

he result is a system of nominating the more conservative Republican

or more liberal Democratic candidates who will ultimately win the primary

and face off with their extreme counterparts in their respective legislative

chambers. This system has shrunk the number of moderates in Congress. To

counter this tactic, several states through citizen ballot initiatives and state laws

have created independent commissions to remove the parties’ dominance in

the process of drawing the maps.

Racial Gerrymandering The intentional drawing of legislative districts

on the basis of race has also been the subject of scrutiny for conflicting reasons.

First, it has been used to dilute the votes of African Americans and therefore

has been found to violate their Fifteenth Amendment voting rights. Second, in

well-intentioned overcorrections of this problem, racial gerrymandering was

found to violate other voters’ rights to equal protection under the Fourteenth

Amendment. This latter issue was the focus of another landmark redistricting

decision from the Supreme Court, Shaw v. Reno (1993).

128 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

MUST-KNOW SUPREME COURT CASE: SHAW V. RENO (1993)

The Constitutional Question Before the Court: Does a congressional district,

designed for the purpose of assuring a majority black population, violate the

Fourteenth Amendment’s equal protection clause?

The Answer: Yes, for Shaw, 5:4

Before Shaw: In the late 1950s, as greater numbers of African Americans registered

and voted in Alabama, the case of Gomillion v. Lightfoot came to the Supreme

Court. The city of Tuskegee contained a large black population and was on a path

to constituting the majority of voters in the city. In response to this trend and fearing

an African American-dominated government, the state legislature passed special

legislation to alter the city’s borders. What resulted was a 28-sided city border that

placed black neighborhoods beyond the new city lines. Tuskegee Institute professor

Charles Gomillion sued Tuskegee Mayor Phil Lightfoot. The Supreme Court decided

the state, in its purposeful redesign of the city, had violated the litigants’ Fifteenth

Amendment right to vote.

Facts: After the 1990 census, and in compliance with the 1965 Voting Rights Act (see

Topic 3.11), North Carolina submitted to the federal Justice Department its new map of

congressional districts for review. Decades of racial gerrymandering in the era before the

Gomillion decision had effectively disfranchised black voters and kept them from serving

in the halls of government. To correct that problem, the Court had ruled that using race as

a basis in creating legislative districts, including so-called majority-minority districts that

contained more black than white residents, was permissible in the interest of fairness. In

the North Carolina map submitted for review, only one district was a majority-minority

district. Federal directives and goals encouraged U.S. Attorney General Janet Reno to

send the map back to the state and insist it redraw the map with a second black-majority

district. North Carolina complied and created some oddly shaped districts in the process.

North Carolina’s “I-85 District”

WE

Greensboro
Winston-Salem

High Pointe

Charlotte

Source: Wikimedia Commons

Durham

This cartoon (inset) appeared in a Boston newspaper in 1812 in response to a redistricting in

Massachusetts

created to favor the party of then-Governor Elbridge Gerry. The oddly shaped district resembled a

salamander but in “honor” of the governor was dubbed the “Gerry-mander.”

CONGRESSIONAL BEHAVIOR

129

Early court filings and editorials commenting on the illogical districts compared them

to a Rorschach inkblot test and “a bug splattered on a windshield.” North Carolina’s

serpent-like 12th district, measuring 160 miles in length, stretched and curved from

inner-city neighborhood to inner-city neighborhood to accumulate a majority black

population. At some points it was no wider than the Interstate it straddled. Dubbed the

“I-85 District,” this district and another resulted in two African American candidates—

Mel Watt and Eva Clayton—winning seats in Congress. The map called into question

the degree to which race can or should be used as a factor in drawing congressional

districts. North Carolina’s Republican Party and five white individual voters brought

suit—Ruth Shaw among them—suggesting the effort came as a result of separating

citizens into classes by race in order to form the districts.

Reasoning: In a close vote, the Court ruled for Shaw, not because race was used

as a factor in drawing district boundaries but rather that only race as a factor could

explain the highly irregular district shape and its lack of other characteristics, including

geography, usually considered when drawing boundaries. Using race as the only

factor in drawing lines opposed the “colorblind” ideal of United States law, separating

citizens into different classes without the justification of a compelling state interest and

violating the Fourteenth Amendment.

The Court’s Majority Opinion by Justice Sandra Day O’Connor:

Our focus is on appellants’ claim that the State engaged in unconstitutional

racial gerrymandering. That argument strikes a powerful historical chord: It is

unsettling how closely the North Carolina plan resembles the most egregious racial

gerrymanders of the past . . .

This Court never has held that race-conscious state decision making is

impermissible in all circumstances. What appellants object to is redistricting

legislation that is so extremely irregular on its face that it rationally can be viewed

only as an effort to segregate the races for purposes of voting, without regard for

traditional districting principles and without sufficiently compelling justification.

For the reasons that follow, we conclude that appellants have stated a claim upon

which relief can be granted under the Equal Protection Clause . . .

Accordingly, we have held that the Fourteenth Amendment requires state

legislation that expressly distinguishes among citizens because of their race to be

narrowly tailored to further a compelling governmental interest . . .

The message that such districting sends to elected representatives is equally

pernicious. When a district obviously is created solely to effectuate the perceived

common interests of one racial group, elected officials are more likely to believe

that their primary obligation is to represent only the members of that group, rather

than their constituency as a whole.

Political Science Disciplinary Practices: Analyze, Interpret, and Apply the Decision

The Court’s decision in the Shaw case shows that using only race as a factor in

creating districts was not aligned with the Fourteenth Amendment.

Apply: Complete the following tasks.

1. Identify two potentially conflicting constitutional principles at issue in this case.

2. Explain how the Court justified its reasoning in the majority opinion.

3. Describe a similarity and a difference between the opinion in Shaw v. Reno and

the opinion in Gomillion v. Lightfoot.

130 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

Divided Government and Senate Showdowns

Government is divided when the president is from one party and the House

and/or Senate is dominated by the other. It fuels partisan gridlock, especially

with judicial nominations. As the Supreme Court has become the arbiter of

law on affirmative action, abortion, marriage equality, and gun rights, the fight

between the parties about who sits on the Court has intensified.

In 2016, after the death of Associate Justice Antonin Scalia, Democratic

President Barack Obama nominated District of Columbia Circuit Judge

Merrick Garland to replace him. However, the Republican-held Senate, in a rare

though not unprecedented move, refused to consider his nomination during

Obama’s last year in office. At the time, President Obama was a so-called “lame

duck” president, or executive who has not won reelection or who is closing

in on the end of the second presidential term, highlighting the partisan divide

in government. In 2017, President Trump nominated conservative judge Neil

Gorsuch to the Scalia seat. Gorsuch was quickly confirmed by a Republican

dominated Senate.

In 2018, an even more contentious confirmation hearing took place

over President Trump’s nominated Supreme Court Justice Brett Kavanaugh.

Democratic senators grilled Kavanaugh on a number of issues, but the

most heated discussions revolved around the alleged sexual misconduct

of Kavanaugh in the early 1980s. The Republican-held Senate eventually

confirmed Kavanaugh.

In both chambers, real floor debate has been replaced by carefully

orchestrated speeches, while combative media-hungry lawmakers face off in

head-to-head confrontations on cable TV news. As historian Lewis Gould put

it, “In this hectic atmosphere of perpetual campaigning, the older values of

collegiality and comity, though rarer than senatorial memory had it, eroded to

the point of virtual disappearance.”

THINK AS A POLITICAL SCIENTIST: DESCRIBE THE DECISIONS OF

REQUIRED SUPREME COURT CASES

All cases that reach the Supreme Court have previously been ruled on in lower

courts. (See Topic 2.8.) The decisions of the Court can define laws and will

become the “law of the land.” The rulings of the Supreme Court often have a

lasting and dramatic effect on many citizens.

Some of the Court’s rulings are straightforward and easy to understand,

while other rulings can be complicated and challenging to interpret.

Occasionally, one Court ruling will relate to another to further clarify an

issue. The Supreme Court ruled on several related cases dealing with unequal

representation of voters in the 20th century.

CONGRESSIONAL BEHAVIOR

131

Practice: Review the Baker v. Carr (1962) and Shaw v. Reno (1993) cases from this topic

and answer the following questions:

1. What were the similarities between the rulings in the cases?

2. What were the differences between the rulings in the cases?

3. In your opinion, which case will have the larger impact on U. S. politics and

policymaking in the 21st century? Explain your answer.

Congress’s Public Image

When people asked humorist Will Rogers where he got his jokes, he replied,

“Why I just watch Congress and report the facts.” Critics from Mark Twain to

comedian Jon Stewart have cast Congress in a bad light. The media have also

contributed to its tarnished reputation. Members’ conflicts of interest and an

increased number of scandals have given the institution a black eye.

All of these factors help to create an image of an uncaring, “do nothing”

Congress. The branch’s overall approval rating, as measured by Gallup, hovered

in the mid-30 percent range in the early 1970s. Over the past decade, it has

generally fallen below 20 percent.

Yet most individual members of Congress enjoy about a 60 percent

approval rating from their constituents. Veteran Congressman Lee Hamilton

(D-IN, 1965–1999) once suggested this help-wanted ad to better define the

job description: “Wanted: A person with wide-ranging knowledge of scores of

complex policy issues. Must be willing to work long hours in Washington, then

ly home to attend an unending string of community events. Applicant should

expect that work and travel demands will strain family life, and that every facet

of public and private life will be subject to intense scrutiny and criticism.”

REFLECT ON THE ESSENTIAL QUESTION

Essential Question: How is congressional behavior influenced by election processes, parti

sanship, and divided government? On separate paper, complete a chart like the one below.

Factor that Influences Congressional

Behavior

Impact of the Congressional Behavior

KEY TERMS AND NAMES

Baker v. Carr (1962)

delegate model

gerrymandering

gridlock

“lame duck” president

“one person-one vote” principle

politico model

racial gerrymandering

Shaw v. Reno (1993)

swing district

trustee model

132 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

CHAPTER 4 REVIEW: LEARNING OBJECTIVES AND KEY TERMS 133

CHAPTER 4 Review:
Learning Objectives and Key Terms

TOPIC 2.1: Describe the different structures, powers, and functions of each house of

Congress. (CON-3.A)

Structure of Congress

(CON-3.A.1)

bicameral

House of Representatives

Senate

Seventeenth Amendment

(1913)

Differences Between

Houses of Congress

(CON-3.A.2 & 3)

advice and consent

coalitions

power of the purse

Powers of Congress

(CON-3.A.4)

caucuses

enumerated powers

implied powers

necessary and proper clause

War Powers Act (1973)

TOPIC 2.2: Explain how the structures, powers, and functions of both houses of

Congress affect the policy-making process. (CON-3.B)

Differing Policymaking

Powers

(CON-3.B.1 & 5)

cloture rule
filibuster

germane

hold

logrolling

omnibus bill

pork-barrel spending

rider

sponsor

unanimous consent

Chamber-Specific

Procedures (CON-3.B.2

& 3)

Committee of the Whole

conference committee

discharge petition

joint committees

President of the Senate

president pro tempore

Rules Committee

select committee

Senate majority leader

Ways and Means Committee

whip

Congressional

Budget (CON-3.B.4)

deficit

discretionary spending

mandatory spending

TOPIC 2.3: Explain how congressional behavior is influenced by election processes,

partisanship, and divided government. (CON-3.C)

Congressional Behavior (CON-3.C.1)

Baker v. Carr (1962)

delegate model

gerrymandering

gridlock

“lame duck” president

“one person-one vote” principle

politico model

racial gerrymandering

Shaw v. Reno (1993)

swing district

trustee model

CHAPTER 4 Checkpoint:

Congress

Topics 2.1–2.3

MULTIPLE-CHOICE QUESTIONS

Questions 1 and 2 refer to the passage below.

We have before us one of the most important duties of the U.S. Senate and of

the U.S. Congress, and that is to decide whether or not we will be involved

in war. I think it is inexcusable that the debate over whether we involve the

country in war, in another country’s civil war, that this would be debated as

part of a spending bill, and not as part of an independent, free-standing bill.

I think it is a sad day for the U.S. Senate. It goes against our history. It goes

against the history of the country.

—Senator Rand Paul, Senate Floor Speech, 2014

1. Which of the following best explains Senator Paul’s perspective?

(A) The United States should not become involved in another country’s

civil war.
(B) The president should not have war-making authority except in an

emergency.

(C) The military intervention the United States is considering needs a

spending appropriation.

(D) The U.S. Senate should decide on war-like action on its individual

merits.

2. Which institutional power of Congress is Senator Paul most concerned

about?

(A) The power to tax and spend

(B) The power to ratify treaties

(C) The power to declare war

(D) The power to regulate interstate commerce

3. When the Senate Judiciary Committee passes a proposed crime bill by a

vote of 11 to 10, which is most likely to follow?

(A) The Supreme Court will review the bill.

(B) The full Senate will consider the bill.

(C) The House of Representatives will consider the bill.

(D) The president will sign the bill.

134 CHAPTER 4 CHECKPOINT: CONGRESS

Questions 4 and 5 refer to the table below.

HOUSE AND SENATE MEMBERS’ AVERAGE AGE, 2011–2018

Congress

112th

113th

114th

Representatives Newly Elected

Representatives

56.7 years

57.0 years
48.2 years

Senators

Newly Elected

Senators

62.2 years

49.2 years

57.0 years

115th

57.8 years

52.3 years

50.8 years

62.0 years

61.0 years

61.8 years

52.1 years

53.0 years

50.7 years

54.8 years

4. Which of the following statements accurately describes a trend in the

data above?

(A) Newly elected members in each chamber are older than the average

age of members in that chamber.

(B) Senators, on average, are younger than representatives.

(C) The 115th Congress had the youngest newly elected senators

compared with earlier Congresses.

(D) Newly elected senators were on average older than newly elected

House members.

5. Which of the following is an accurate conclusion based on the data in

the table above?

(A) Older people vote more frequently, and they want older people

representing them.

(B) Shorter terms allow representatives to be frequently replaced by

younger members.

(C) Serving in Congress often occurs following other successful careers.

(D) The Constitution requires these lawmakers to be at least 35 years old.

6. Which of the following is an accurate comparison of the processes of

the U.S. House of Representatives and the U.S. Senate?

HOUSE

(A)

(B)

(C)

(D)

Allows filibusters until a majority

vote defeats the filibuster

Has committees chaired by

members of the minority party

SENATE

Is a 101-member body, as the vice

president can vote on all bills

Is the first chamber to introduce

tax bills

Has more procedural rules guiding

its lawmaking process

Has the sole power to declare war

Has authority over the ratification

of treaties with other nations

Has the sole power of impeachment

CHAPTER 4 CHECKPOINT: CONGRESS

135

136 CHAPTER 4 CHECKPOINT: CONGRESS

FREE-RESPONSE QUESTIONS

Concept Application

1. “Across the country, heroin and opioid abuse are growing at rapid rates,

especially in New Hampshire. In schools, kids are learning to administer

anti-overdose medication. That’s how bad the problem is: Police and

firefighters, even family and friends, must carry medication like Narcan and

know how to use it at a moment’s notice. We must protect them from liability

laws that could interfere with emergency treatment. I’m grateful to the

Judiciary Committee for helping to remove legal barriers.”

—Representative Frank Guinta (R-NH), sponsor

of House bill (H.R. 5048), 2016

After reading the scenario, respond to A, B, and C below:

(A) Describe the power the House Judiciary Committee used to address

the concerns outlined by Representative Frank Guinta.

(B) In context of the scenario, explain how the legislative process was

followed by the House of Representatives to deal with the problem.

(C) In the context of the scenario, explain how the required

interactions between the House of Representatives and the Senate

would be required to move H.R. 5048 into law.

Quantitative Analysis

Numbers derived from mentions of legislative issues in New York Times editorials during Congressional

sessions. Gridlock was determined by following progress on the issues.

25

Number of legislative issues

Number of legislative issues in gridlock

50
75

100

125

150

175

Legislative Issues and Progress, 1947–2012

Congress

Total number of legislative issues

1947–48

1949–50

1951–52

1953–54

1955–56

1957–58

1959–60

1961–62

1963–64

1965–66

1967–68

1969–70

1971–72

1973–74

1975–76

1977–78

1979–80

1981–82

1983–84

1985–86

1987–88
1989–90

1991–92

1993–94

1995–96

1997–98

1999–00

2001–02

2003–04

2005–06

2007–08

2009–10

2011–12

Source: Brookings

2. Use the graph from the previous page to answer the questions.

(A) Describe the information the data conveys.

(B) Describe a trend illustrated in the graphic.

(C) Draw a conclusion about the causes of that trend.

(D) Explain how gridlock demonstrates a key characteristic of the

U.S. government as envisioned by the framers.

SCOTUS Comparison

3. After the 2000 census, a federal judge drew legislative districts in

Texas because Democrats and Republicans could not agree on a map.

After gaining power in the elections of 2002, Republicans in the Texas

legislature redrew the map in 2003. Plaintiffs sued, arguing that the

plan was an unconstitutional partisan gerrymander and violated the

equal protection clause and the Voting Rights Act of 1965 by diluting

racial minority voting strength. They also believed the mid-decade

redistricting was illegal. A three-judge panel ruled that the new map

was not unconstitutional, and the case was appealed to the Supreme
Court as League of United Latin American Citizens v. Perry (2006).

he Court ruled that only one of the new districts, District 23, was

drawn in violation of Section 2 of the Voting Rights Act because under

the previous redistricting it was a protected majority-minority district

of Latinos, but Latinos became a minority of voting-age citizens in the

newly drawn district. However, the Court also ruled that the legislature

could redraw the map at any time as long as it was done at least every

ten years. It also ruled that the map was not unconstitutional on the

basis of partisan gerrymandering.

(A) Identify a difference between League of United Latin American

Citizens v. Perry (2006) and Shaw v. Reno (1993).

(B) Explain how the facts in Shaw v. Reno (1993) led to a different

holding than in League of United Latin American Citizens v. Perry

(2006).

(C) Describe why these cases caused concern about the Supreme Court

and the foundational principle of separation of powers.

CHAPTER 4 CHECKPOINT: CONGRESS 137

CHAPTER 5

The Presidency

Topics 2.4–2.7

Topic 2.4 Roles and Powers of the President

CON-4.A: Explain how the president can implement a policy agenda. – Required Foundational Document:

• The Constitution of the United States

Topic 2.5 Checks on the Presidency

CON-4.B: Explain how the president’s agenda can create tension and frequent

confrontations with Congress.

Topic 2.6 Expansion of Presidential Power

CON-4.C: Explain how presidents have interpreted and justified their use of formal
and informal powers.– Required Foundational Documents: Federalist No. 70

• The Constitution of the United States

Topic 2.7 Presidential Communication

CON-4.D: Explain how communication technology has changed the president’s

relationship with the national constituency and the other branches.

Source: Wikimedia Commons

The seal of the President of the United States

138 THE PRESIDENCY

2.4

Roles and Powers of the President

“The executive branch shall construe [the law] in a manner consistent

with the constitutional authority of the President . . .

as Commander in Chief . . . [to protect] the American people

from further terrorist attacks.”

—President George W. Bush, Signing Statement, 2005

Essential Question: How can a president implement a policy agenda?

The American presidency comes with ceremony, custom, and expectation.

Presidential institutions, such as the White House, Air Force One, and the State

of the Union address, are likely familiar to you. Signing ceremonies and photo

opportunities with foreign dignitaries are common images. The Constitution

lays out the president’s job description in broad language. The president has

both formal and informal powers and functions to accomplish a policy agenda,

a set of issues that are significant to people involved in policymaking.

he American presidency, visible on a world scale, is an iconic and powerful

institution that has become much more influential over time. Presidents

administer the law through a large bureaucracy of law enforcement, military,

trade, and financial agencies. Chief executives meet with world leaders, design

the national budget, and campaign for their party’s candidates.

Framers’ Vision

he delegates in Philadelphia in 1787 voted to make the presidency an

executive office for one person. Fears arose because skeptics saw this office as a

potential “fetus of monarchy.” One delegate tried to allay such fears, explaining

“it will not be too strong to say that the station will probably be filled by men

preeminent for their ability and virtue.”

Article II

he Constitution requires the president to be a natural-born citizen, at least

35 years old, and a U.S. resident for at least 14 years before taking office. The

president is the Commander in Chief and also has the power to issue pardons

and reprieves, and to appoint ambassadors, judges, and other public ministers.

he president can recommend legislative measures to Congress, veto or

approve proposed bills (from Article I), and convene or adjourn the houses

of Congress. The framers also created a system by which the Electoral College

chooses the president every four years.

ROLES AND POWERS OF THE PRESIDENT 139

Presidential Powers, Functions, and Policy Agenda

he president has many powers and functions that enable him to carry out the

policy agenda he laid out during the campaign. The president exercises the

formal powers of the office, those defined in Article II, as well as the informal

powers, those political powers interpreted to be inherent in the office, to achieve

policy goals. Congress and the Supreme Court have bestowed additional duties

and placed limits on the presidency.

Formal and Informal Powers

A president cannot introduce legislation on the House or Senate floor but in

many ways still serves as the nation’s chief lawmaker. Article II also gives the

president the power to convene or adjourn Congress at times. As the head of

state, the president becomes the nation’s chief ambassador and the public face

of the country. As Commander in Chief, the president manages the military.

Running a federal bureaucracy that resembles a corporation with nearly three

million employees, the president is a CEO. And finally, as the de facto head of

the party, the president becomes the most identifiable and influential Republican

or Democrat in the country.

Article II: Qualifications, Duties, and Limits of the Presidency

• Must receive a majority of Electoral College votes to win the office

• Shall hold office for a four-year term

• Must be natural-born citizen, 35 years old, and U.S resident 14 years

• Shall be the Commander in Chief of the Army and Navy

• May require opinions of advisers and department heads

• May pardon convicted persons for federal offenses

• Shall appoint ambassadors, judges, and make treaties with Senate approval

• May recommend measures to Congress

• May convene or adjourn Congress

Chief Legislator The Constitution provides that the president “may

recommend [to Congress] such measures as he shall judge necessary and

expedient.” Presidents may recommend new laws in public appearances and

in their State of the Union address or at other events, pushing Congress to

pass their proposals. Congress often leaves this proactive approach to policy

leadership to the president rather than taking it upon itself. Presidents have

asked Congress to pass laws to clean up air and water, amend the Constitution,

create a national health care system, and declare war. A president with a strong

personality can serve as the point person and carry out a vision for the country

more easily than any or all of the 535 members of Congress.

Powers of Persuasion The president uses a number of skills to win support

for a policy agenda. The president will use bargaining and persuasion in an

140 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

attempt to get Congress to agree with and pass the legislative agenda. President

Trump’s most notable bill to pass Congress in his first year was a major tax

overhaul that reduced corporate taxes from 35 to 21 percent and changed

federal income tax rates, lowering them, at least temporarily, for a vast majority

of citizens. The Tax Cuts and Jobs Act passed only after Trump, a real estate

developer, used his skills as a salesman to push for it. As Politico reported, “He

has spent weeks wooing, prodding, cajoling and personally calling Republican

lawmakers to pass sweeping tax legislation in time for Christmas.” He closed on

this tax bill as he would have closed a real estate deal decades ago, with a hard

and convincing sell. Using his informal political powers, Trump personally

called the wavering members of the Senate. The White House organized a

speech and presentation, showcasing how the changes would impact some

average families, personalizing the promises of the bill.

Veto The president has the final stamp of approval of congressional bills

and also a chance to reject them with the executive veto. After a bill passes both

the House and the Senate, the president has ten days (not including Sundays)

to sign it into law. If vetoed, “He shall return it,” the Constitution states, “with

his objections to the House in which it shall have originated.” This provision

creates a dialogue between the two branches, enables Congress to consider the

president’s critique, and encourages consensus policies.

At times, a president will threaten a veto, exercising an informal power that

may supersede the formal process. When disagreements between the president

and his party or the majority of Congress over the details of a new law exist,

the president may threaten to veto, conditionally, if the bill is not satisfactory.

Congressional proponents of a bill will work cooperatively to pass it, reshaping

it if necessary, to avoid the veto.

T
he use of the veto has fluctuated throughout presidential history. When

there is a divided government—one party dominating Congress and another

controlling the presidency—there is usually a corresponding increase in vetoes.

he last three presidents, at times, each served with divided governments

during their eight years as president. Democrat Bill Clinton had 37 vetoes;

Republican George W. Bush and Democrat Barack Obama each had 12.

he president can opt to neither sign nor veto. Any bill not signed or vetoed

becomes law after the ten-day period. However, if a president receives a bill in

the final ten days of a congressional session and does nothing, this pocket veto

allows the bill to die.

Congress can override a presidential veto if two-thirds of each house

approves the bill. Reaching the two-thirds threshold is very challenging and

fewer than 10 percent of a president’s vetoes are overridden. (See Topic 1.6 for

more on overriding vetoes.)

ROLES AND POWERS OF THE PRESIDENT

141

142 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

THINK AS A POLITICAL SCIENTIST: DESCRIBE TRENDS IN DATA

Data and statistics are valuable tools to political scientists. Studying trends

in data over time helps political scientists understand how events and ideas

affect individuals and institutions. This “big picture” view can help interpret

the success of politicians and their actions. For example, U.S. presidents are

granted the power of signing a bill into law or vetoing a bill. A president who

uses the veto infrequently is often viewed as a successful executive because

policy goals are accomplished easily. Conversely, a president who vetoes many

bills can be regarded as less successful and might have difficulty implementing

his policy goals. Does the number of vetoes used by a president show trends in
individual success or success for the nation?

Practice: Study the table below, which shows trends in presidential vetoes at different

times in the nation’s history. Then, offer one reason why those trends might have varied

so greatly.

NUMBERS AND TYPES OF VETOES OF SELECTED PRESIDENTS

Congressional

session

President Years Vetoes Pocket

vetoes

Divided government

(chamber with

the majority party

opposite the

president and number

of years)

47th–48th Chester

Arthur (R)

1881–1885 4 1 House—2 years

49th–50th Grover

Cleveland (D)

1885–1889 304 2 House—4 years

51st–52nd Benjamin

Harrison (R)

1889–1893 19 1 House—2 years

71st–72nd Herbert

Hoover (R)

1929–1933 21 3 No

73rd–79th Franklin

Roosevelt (D)
1933–1945 372 9 No

83rd–86th Dwight

Eisenhower

(R)

1953–1961 73 2 Both chambers—

6 years

87th–88th John Kennedy

(D)

1961–1963 12 0 No

Source: House of Representatives

Line-Item Veto Since the founding, presidents have argued for the right

to a line-item veto. This measure would empower an executive to eliminate a

line of spending from an appropriations bill or a budgeting measure, allowing

the president to veto part, but not all, of the bill. Many state governors have the

line-item veto power. In 1996, Congress granted this power to the president

for appropriations, or new direct spending, and limited tax benefits. Unlike a

Congress member, the president has no loyalties to a particular congressional

district and can thus sometimes make politically difficult local spending cuts

without concern for losing much regional or national support.

Under the new act, President Clinton cut proposed federal monies

earmarked for New York City. The city sued, arguing that the Constitution

gave Congress the power of the purse as an enumerated congressional power,

and New York City believed this new law suddenly shifted that power to the

president. The Court agreed that the only way to give the president this power

would be through a constitutional amendment and struck down the act in

Clinton v. City of New York (1998). Presidents and fiscal conservatives continue

to call for a line-item veto to reduce spending. There is little doubt that such

power would reduce at least some federal spending. However, few lawmakers

(who can currently send pork barrel funds to their own districts) are willing to
provide the president with the authority to take away that perk.

Commander in Chief

he framers named the president the Commander in Chief with much control

over the military. The Constitution, however, left the decision of declaring war

solely to the Congress. The question of what constitutes a war, though, is not

always clear.

Senator Barry Goldwater proclaimed in the waning days of the Vietnam

conflict, “We have only been in five declared wars out of over 150 that we have

fought.” His point was fair, although his estimate was debatable. The issue

remains: Should all troop landings be considered wars that therefore require

congressional declarations?

When a military operation is defensive, in response to a threat to or attack

on the United States, the executive can act quickly. FDR ordered U.S. troops to

Greenland in 1940 after the Nazis marched into Denmark but before any U.S.

declaration of war. President Clinton bombed Iraq after discovering the failed

assassination attempt on his predecessor, the elder President Bush. President

Obama authorized the U.S. mission in 2011 to capture or kill Osama bin Laden,

the al-Qaeda founder responsible for the September 11, 2001, attacks. A U.S.

Navy Seal team was on the ground in Pakistan for only about 40 minutes. Some

believe that actions such as these stretch the meaning of “defensive” too far. Yet

how successful would this mission have been if Congress had to debate publicly

and vote in advance on whether or not to invade the unwilling country that

harbored bin Laden?

he Cold War era greatly expanded the president’s authority as Commander

in Chief. In the early 1960s, one senator conceded that the president must have

ROLES AND POWERS OF THE PRESIDENT

143
some war powers because “the difference between safety and cataclysm can

be a matter of hours or even minutes.” The theory of a strong defense against

“imminent” attack has obliterated the framers’ distinction and has added an

elastic theory of defensive war to the president’s arsenal. Imminent-defense

theorists argue the world was much larger in 1789, considering warfare,

weaponry, and the United States’ position in the world. Today, with so many

U.S. interests abroad, an attack on American interests or an ally far from U.S.

shores can directly and immediately impact national security.

Chief Diplomat

hrough treaties, presidents can facilitate trade, provide for mutual defense,

help set international environmental standards, or prevent weapons testing,

as long as the Senate approves. President Woodrow Wilson wanted the United

States to join the League of Nations after World War I, but the Senate refused to

ratify Wilson’s Treaty of Versailles.

An executive agreement resembles a treaty yet does not require the Senate’s

two-thirds vote. It is a simple contract between two heads of state: the president

and a prime minister, king, or president of another nation. Like any agreement,

such a contract is only as binding as each side’s ability and willingness to fulfill

the promise. To carry it out, a president will likely need cooperation from other

people and institutions in the government. These compacts cannot violate

prior treaties or congressional acts, and they are not binding on successive

presidents.

Presidents have come to appreciate the power of the executive agreement.

President Washington found conferring with the Senate during each step

of a delicate negotiation extremely cumbersome and perhaps dangerous. It

compromised confidentiality and created delays.

Executive agreements can ensure secrecy or speed or avoid ego clashes

in the Senate. During the Cuban Missile Crisis in October 1962, President
Kennedy discovered the Soviet Union’s plan to install nuclear missiles in Cuba.

Intelligence reports estimated these weapons would be operational within

two weeks. After days of contemplation, negotiation, and a naval standoff

in the Caribbean, the United States and the Soviet Union made a deal. The

agreement stated that the Soviets would remove their offensive missiles from

Cuba if the United States would later remove its own missiles from Turkey.

Had Kennedy relied on two-thirds of the Senate to help him solve the crisis,

a different outcome could very well have occurred. Time, strong words on the

Senate floor, or an ultimate refusal could have drastically reversed this historic

outcome.

Executive Powers and Policy—The Panama Canal

he policies of two presidents regarding the Panama Canal show two very

different ways of using the powers of the executive branch to advance a policy

agenda and interact with Congress.

144 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

Acquiring the Panama Canal Zone “Speak softly and carry a big stick.”

hese words of President Theodore Roosevelt describe his foreign policy in

relation to Latin America, where he wanted to assert U.S. power. However, the

words might also describe his approach to Congress.

Shortly after becoming President, Roosevelt spoke to Congress about the

importance of linking the Atlantic and Pacific Oceans to shorten trade routes

with a canal through Panama. Using his powers of persuasion, Roosevelt

convinced the Senate to pass a treaty to acquire the canal zone from Colombia,

but the government of Columbia balked.

Panamanians had long wanted their independence from Colombia and

struck a deal with the United States. If American forces supported Panamanian

independence, the new government would sell the land to the United States to
build a canal. Leaders of American business interests in the area offered bribes

to Panamanian officials to let the rebellion prevail, and Roosevelt sent the USS

Nashville to the region in a show of rebel support, an example of Roosevelt’s

so-called “gunboat diplomacy.” Colombia agreed to grant independence to

Panama. Soon after, the Canal Zone was sold to the United States.

Some in the United States saw Roosevelt’s participation in the rebellion

as an act of piracy or worse. But Roosevelt defended his actions and use of

executive powers, saying years later, “If I had followed traditional, conservative

methods, I should have submitted a dignified state paper of probably two

hundred pages to Congress, and the debate would have been going on yet. But

I took the Canal Zone, and let Congress debate, and while the debate goes on,

the Canal does also!” The treaty was finally ratified in 1904; the canal opened

in 1914.

Returning the Canal Zone to Panama The canal cut Panama into two

sections, with the Canal Zone under the control of the United States. Over time,

the continued involvement of the United States strained relations between the

the two nations. Only after decades of conflict did the United States soften its

“big stick” policy and support more democracy in the region.

Panama’s desire to fly its flag over the Canal Zone had long been a source

of tension. On January 9, 1964, violence erupted when the only Panamanian

lag flying in the Canal Zone was torn. A number of protesting students

overwhelmed Canal Zone police, and U.S. troops were brought in. Twenty

Panamanians were killed. In Panama, that day has since become known as

Martyrs Day. Panama broke off diplomatic relations with the United States and

demanded a new treaty.

When Jimmy Carter became president (1977–1981), he articulated his

approach to foreign policy with an emphasis on morality. “Our policy is based

on a historical vision of America’s role. . . . Our policy is rooted in our moral

values, which never change. . . . Our policy is designed to serve [hu]mankind.”

Returning the Canal Zone to Panamanian control was high on Carter’s list

of foreign policy objectives for several reasons. First, he saw the control of the

Canal Zone as a holdover from an imperial past and wanted to remove any

symbolic representation of imperialism, believing it affected U.S. relations with

ROLES AND POWERS OF THE PRESIDENT

145

all Latin American countries. Also, he believed it was the moral responsibility

of the United States to respect the complete self-governance of Panama.

Carter set in motion a carefully planned effort to win support in Congress

for the return of the Canal Zone to Panama, relying on powers of persuasion

and personal relationships to achieve his goals. Specifically, he and his legislative

team provided extensive briefings and education to members of Congress

and sent them to the region to gather information firsthand, and Carter

got personally involved in discussions. His team was also meticulous about

learning exactly which lawmakers’ votes they could count on and which votes

they needed to nurture. They developed an extensive public relations campaign

to educate the American people on the issue and made visits to congressional

districts where pressure from constituents might sway a member’s vote.

Carter’s patient diplomacy with Congress paid off. In 1978, new agreements

that guaranteed the U.S. military protection of the canal to assure fair and full

passage and also formally returned full sovereignty to Panama over the Canal

Zone beginning on December 31, 1999, were ratified by a Senate vote of 68-32.

Chief Executive and Administrator

How the president and his appointees enforce or implement a new law will

shape the administration’s policy agenda. Using executive orders, signing

statements, and running the machinery of the vast executive branch mark

how a president carries out the powers and functions as the chief executive.

T
he Supreme Court has defined some of the gray areas of presidential power.

For example, the president can fire most Senate-approved subordinates

without cause.

Executive Orders An executive order empowers the president to carry

out the law or to administer the government. Unlike a criminal law or monetary

appropriation, which requires Congress to act, a presidential directive falls

within executive authority. For example, the president can define how the

military and other departments operate.

Executive orders have the effect of law and address issues ranging from

security clearances for government employees to smoking in the federal

workplace. In 1942, for example, President Franklin Roosevelt (FDR) issued

the infamous Executive Order 9066, which allowed persons identified by the

secretary of war to be excluded from certain areas. This executive order resulted

in the internment of Japanese Americans during World War II. In 1948,

through an executive order, President Harry Truman directed the military to

racially integrate. Recently, President Donald Trump issued an executive order

outlining an immigration policy that limited travelers entering the United States

from six countries with Muslim-majority populations. Executive orders cannot

address matters under exclusive congressional jurisdiction, such as altering the

tax code, creating new interstate commerce regulations, or redesigning the

currency. Executive orders can also be challenged in court. The Supreme Court

upheld both FDR’s wartime internment and Trump’s travel ban.

146 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

Signing Statements Though the president cannot change the wording of a

bill, several presidents have offered signing statements when signing a bill into

law. These statements explain their interpretation of a bill, their understanding

of what is expected of them to carry it out, or just a commentary on the law. A

signing statement allows a president to say, in effect, “Here’s how I understand

what I’m signing and here’s how I plan to enforce it.” Critics of the signing
statement argue that it violates the basic lawmaking design and overly enhances

a president’s last-minute input on a bill.

Executive Privilege Starting with George Washington’s precedent,

presidents have asserted executive privilege, the right to withhold information

or their decision-making process from another branch, especially Congress.

hey have particularly asserted that they need not make public any advice they

received from their subordinates to protect confidentiality. Presidents have

also claimed that such information is privileged, protected by the separation

of powers.

President Richard Nixon tested executive privilege during the Watergate

scandal when Nixon and others were accused of covering up criminal actions

against political rivals. Nixon refused to turn over investigator-subpoenaed

tapes, alleged to reveal the president’s knowledge of the 1972 break-in at the

Watergate Office Building to steal information about the Democratic Party.

Nixon declared his secretly recorded conversations were protected from

congressional inquiry by executive privilege. In U.S. v. Nixon (1974), the

Supreme Court did acknowledge that executive privilege is constitutional and

necessary at times. Yet the Court unanimously agreed the tapes amounted

to evidence in a criminal investigation and therefore were not protected by

executive privilege. Nixon turned over the recordings.

REFLECT ON THE ESSENTIAL QUESTION

Essential Question: How can a president can implement policy agenda?

On separate paper, complete a chart like the one below.

Power Granted to the President

Example in Implementing Policy Agenda

KEY TERMS AND NAMES

bargaining and persuasion

Commander in Chief
formal powers

executive agreement

executive order

executive privilege

informal powers

line-item veto

pocket veto

policy agenda

signing statements

veto

ROLES AND POWERS OF THE PRESIDENT

147

2.5

Checks on the Presidency

“It is important, likewise, that the habits of thinking in a free Country

should inspire caution in those entrusted with its administration, to confine

themselves within their respective Constitutional spheres; avoiding in the

exercise of the Powers of one department to encroach upon another.”

—George Washington, Farewell Address, 1796

Essential Question: How could the president’s agenda contribute to

confrontations with Congress?

The president’s formal powers enable him to appoint a team to execute the

laws and to accomplish his policy agenda. Some of those administrators hold

positions Congress created in 1789. Many more subordinate positions exist

because Congress has since created them or has allotted funds for offices to

support the president. A typical president will appoint thousands of executive

branch officials during their tenure. Atop that list are the Cabinet officials, then

agency directors, military leaders and commissioned officers, and the support

staff that work directly for the president. Most of these employees serve at the
pleasure of the president, and some are kept on when a new president is elected.

Other positions are protected by statute or Supreme Court decisions.

The President’s Team

he president is faced with countless decisions each day and many of those

decisions have exceptionally important consequences to the fate of the nation.

A large team is needed to assist the president in making these decisions.

Article II, Section 2, of the Constitution gives the president the power to

assemble that group and “. . . appoint ambassadors, other public ministers and

consuls . . . and all other officers of the United States whose appointments are

not herein otherwise provided for and which shall be established by law.”

The Vice President

A political party’s presidential nominee, in consultation with the party, selects

a vice president before the election. Many assume the vice president is the

second most powerful governmental officer in the United States, but in reality,

the vice president is an assistant to the president with little influence and a

largely undefined job description. Different presidents have given their vice

presidents differing degrees of authority and assigned them different roles.

148 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

he Constitution names the vice president as the president of the Senate

and declares that in case of presidential removal, death, resignation, or inability,

the president’s duties and powers “shall devolve on the vice president.”

Shaping and Supporting Policy In recent years, the position has been

especially influential on presidential policy. Many believed George W. Bush’s

vice president Dick Cheney, a hawkish former defense secretary, was overly

influential. He promoted a tough stance on terrorists and also toward nations

that harbor them. He pushed for the 2003 invasion of Iraq in search of “weapons

of mass destruction” but none were found.

Vice President Joe Biden, serving under Obama, sustained his high

influence for eight years. Obama assigned several policy goals to the affable

former senator who had served in Washington since the early 1970s. Biden

focused on concluding the mission in Iraq and gained budget deals with

Republican congressional leaders. Biden was the point man on other foreign

policy matters. The president gave “Uncle Joe” a presidential medal of freedom

and called him “the best vice president America has ever had.”

In 2020, after the global coronavirus pandemic upended life around the world

and cost thousands of people their lives, President Trump appointed his vice

president, Mike Pence, to coordinate the nation’s response. Pence called upon the

globally recognized expert on infectious disease Dr. Dorothy Birx to recommend

policy based on scientific predictions of how the disease would spread.

The Cabinet and Bureaucracy

Article II alludes to a Cabinet when it mentions “the principal officers in each of

the executive departments.” Today, 15 Cabinet secretaries, such as the secretary

of defense and secretary of transportation, advise the president, but they spend

even more time running large governmental departments that take care of a

wide range of national concerns. Presidents can add additional members to the

Cabinet. President Trump has included the vice president, his chief of staff, and

seven others beyond the 15 department heads in this formal group.

Secretaries When appointing Cabinet secretaries, modern presidents

create some balance based on geography, gender, ethnicity, and even

partisan ideology. Presidents have found showcasing minority appointments

and stocking their team with a visible, diverse staff to be in the interest of

accomplishing their agendas.

Franklin Roosevelt (1933–1945) appointed the first woman to the Cabinet,

Secretary of Labor Francis Perkins, and Lyndon Johnson (1963–1969) appointed

the first African American, Secretary of Housing and Urban Development Robert

Weaver. This tokenism—or mainly symbolic appointment of a small number of

underrepresented groups to give the impression of diversity—continued until

President Jimmy Carter appointed substantial numbers of African Americans

and women to his senior executive positions—16 percent women and 11 percent

ethnic minorities. The Cabinet has since included Latinos, Asian Americans, and

nontraditional appointees to Cabinet positions, and 53 percent of Obama’s first

term Cabinet appointees were either women or minorities.

CHECKS ON THE PRESIDENCY

149

Source: Lyndon Baines Johnson

Library and Museum

Robert Clifton Weaver,

first Secretary of Housing

and Urban Development

and first African American

Cabinet appointee who

served from 1966–1968

under President Lyndon

Johnson.

State Department The first department Congress created in 1789 was

the Department of State, headed by Thomas Jefferson. Its role is to promote

foreign policy of the United States across the globe. The State Department is

the president’s main diplomatic body. Deputy secretaries oversee U.S. relations

in designated regions or continents. For each nation that the United States

recognizes (nearly every nation in the world), the State Department operates an

embassy in that country and employs an ambassador, a top diplomat appointed

to represent the United States with that foreign nation. That country will likely

have an embassy in Washington. About two-thirds of U.S. ambassadors come

from careers in foreign affairs or are international experts. About one-third

are political appointees—former senators, political friends, or well-known

Americans to impress the host country.

Defense Department The Defense Department is headquartered at the

Pentagon, just outside the nation’s capital. Secretaries of defense are civilian

officers who serve the president and have not served in the uniformed military

service for at least seven years. The Constitution and U.S. tradition dictate that

the military leadership and policymaking apparatus be distinct and separate

from the uniformed divisions that carry out military missions. Ultimately, the

people run the military through their elected and constitutional civil officers,

in contrast to many dictatorships. Dictatorships, lacking constitutional

protections, come into being when a strong military leader takes over the

military first and the government second.

he Defense Department includes the Army, Navy, Air Force, and

Marines—all of the nation’s military branches under one command. The Joint

Chiefs of Staff, a council of the top uniformed officials from each division,

advises the president on military strategy. Defense comprises about one-fifth of

150 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

the overall federal budget and the largest portion of the nation’s discretionary

spending.

Federal Agencies Federal agencies are subcabinet entities that carry

out specific government functions. Many fall under larger departments. The

Federal Bureau of Investigation (FBI)—a crime fighting organization—falls

under the Justice Department. The Coast Guard falls under the Department of

Homeland Security. Other agencies include the Food and Drug Administration

(FDA), the Internal Revenue Service (IRS), the Central Intelligence Agency

(CIA), and the Postal Service. Thousands of people in Washington and across

the country staff these few hundred executive branch agencies. They carry out

laws Congress has passed with funds Congress has allotted.

President’s Immediate Staff

In 2008, 74 separate policy offices and 6,574 total employees worked for the

president (most not working in the White House). Ideally, all of the offices and

agencies play a part in implementing the president’s policy goals.

he Executive Office of the President (EOP) operates within walking

distance of the White House. It coordinates several independent agencies that

carry out presidential duties and handle the budget, the economy, and staffing

across the bureaucracy. Created in 1939 when FDR needed an expanded

presidential staff, the EOP now includes the Office of Management and Budget,

the Central Intelligence Agency, the Council of Economic Advisers, and other

agencies.

White House Staff The president’s immediate staff of specialists make up

the White House Office. These staffers require no Senate approval and tend

to come from the president’s inner circle or campaign team. They generally

operate in the West Wing of the building. Presidents sometimes come to rely

on their White House staffs more than their Cabinet or agency heads because

staff members serve the president directly. Unlike secretaries, they do not have

loyalties to departments or agencies and do not compete for funding. The staff

interacts and travels with the president daily and many staffers have worked

with prior presidents. A staffer’s individual relationship with and access to the

president will determine his or her influence.

In the 1950s, President Eisenhower’s chief of staff became his gatekeeper,

responsible for the smooth operation of the White House and the swift and

accurate flow of business, paper, and information. Though the chief of staff has

no official policymaking power, a president seeks the chief of staff’s opinion on

many issues, giving the position a great deal of influence. Chiefs of staff tend

to be tough, punctual, detail-oriented managers, and these qualities allow the

president to concentrate on big-picture decisions.

T
he remainder of the president’s inner circle includes the top communicator

to the people, the White House press secretary; the president’s chief legal

counsel; and his national security adviser. The national security adviser

coordinates information coming to the president from the CIA, the military,

CHECKS ON THE PRESIDENCY

151

and the State Department to assess any security threat to the United States. This

person heads the National Security Council that includes the president,

secretaries of defense and state, top intelligence and uniformed military leaders,

and a few others.

Selected Cabinet Level Departments and Agencies

Executive Office

of the President

Council on Economic Advisors

Office of Management & Budget

Central Intelligence Agency

National Security Council

Others

State

Regional

offices,

Ecomonic

& Business

Affairs

Ambassadors

United States

Agency for

International

Development
Treasury

IRS,

Comptroller of

Currency,

Engraging

& Printing,

U.S. Mint

Financial

Crimes

Enforcement

Network

President

Vice President

15 cabinet secretaries

Defense

Joint Chiefs

of Staff

Army, Navy,

Air Force,

Marine Corp,

National

Guard,

Defense

Intelligence

Agency

Justice

White House Office

White House Staff

Chief of Staff
Press Secretary

Legal counsel

Labor

Solicitor

General

FBI, DEA,

ATF, Civil

rights

Division,

Bureau of

Prisons, U.S.

Attorneys,

Marshals

Independent Agencies and

Government Corporations

Bureau of

Labor

Statistics

Mine Safety &

Health

Disability

Employment

Homeland

Security

FEMA, TSA,

Customs

& Border

Protection

Coast Guard
Secret

Service

USCIS

Independent Regulatory Agencies

NASA

Post Office

AMTRAK

Corporation for Public Broadcasting

Tennessee Valley Authority

Others

FCC: FederalCommunications Commission

FEC: Federal Elections Commission

FDA: Food & Drug Administration

EPA: Environmental Protection Agency

SEC: Securities & Exchanges Ommission

Interactions with Other Branches

Since Congress writes most law, holds the federal purse, and confirms

presidential appointments, presidents must stay in good graces with

representatives and senators. The president’s agenda is not always Congress’s

agenda, however, and tensions often arise between the branches. As chief

legislator, the president directs the Office of Legislative Affairs to draft bills

and assist the legislative process. (See Topic 2.2.) Sometimes the aides employ

techniques to push public opinion in a lawmaker’s home district in the direction

of a desired presidential policy so that the lawmaker’s constituency can apply

pressure. As the president enforces or administers the law, the courts determine

if laws are broken, misapplied, or unjust. For these reasons, a president regularly

interacts with the legislative and judicial branches.

152 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

Checks on Presidential Powers

T

he framers took seriously the concerns of the Anti-Federalists and included

specific roles and several provisions to limit the powers of the future strong,

singular leader.

he Senate has the power to provide advice and consent on appointments,

for example, and the presidential salary is set by Congress and cannot increase

or decrease during the elected term. The framers also expressly made the

president subject to impeachment. (See Topic 1.6.)

While some presidential powers, such as serving as Commander in Chief,

appointing judges and ambassadors, and vetoing legislation, are explicit,

presidents and scholars have argued about the gray areas of a president’s job

description. Most presidents have claimed inherent powers, those that may not

be explicitly listed but are nonetheless within the jurisdiction of the executive.

his debate has taken place during nearly every administration when an

emergency has arisen or when the Constitution doesn’t specifically address an

emerging issue. Presidents have fought battles for expanded powers, winning

some and losing others. The debate continues today.

The Senate and Presidential Appointees

In addition to the more visible Cabinet appointees, a president will appoint

approximately 65,000 military leaders and about 2,000 civilian officials per

two-year congressional term, most of whom are confirmed routinely, often

approved en bloc, hundreds at a time. Occasionally, high-level appointees are

subjected to Senate investigation and public hearing. Most are still approved,

while a few will receive intense scrutiny and media attention, and some

appointments will fail.

Because the founders did not anticipate that Congress would convene as

frequently as it does in modern times, they provided for recess appointments.

If the Senate is not in session when a vacancy arises, the president can appoint

a replacement who will serve until the Senate reconvenes and votes on that

official. This recess appointment is particularly necessary if the appointee is

to handle urgent or sensitive work. This situation is rare, especially when the

government is divided. Often a pro forma, or “in form only,” session will be

called to ensure the Senate technically remains in session. These sessions often

last only a few minutes.

he Senate invariably accepts presidential Cabinet nominations. The upper

house swiftly confirmed every Cabinet-level secretary until 1834, when it

rejected Andrew Jackson’s appointee, Roger Taney, as secretary of the treasury

over Taney’s opposition to a national bank. The makeup of the Senate changed

with the next election and Jackson appointed Taney as chief justice of the

Supreme Court, who was confirmed for the position by a slim margin. To date,

the Senate has rejected, by vote, only nine department secretaries.

he Senate usually accepts Cabinet appointees based on the reasoning

that since the president won a democratic election, he should therefore have

the prerogative of shaping the administration. Presidents commonly choose

CHECKS ON THE PRESIDENCY

153

senators to move over to the executive branch and serve in their Cabinet. In

recent years, the president has selected one or more members of the opposite

party. President Obama named three Republicans to serve as secretaries

(though one declined the offer). Presidents and their transition teams do a

considerable amount of vetting of potential nominees and connecting with

senators to evaluate their chances before making official nominations. Though

only nine nominations have been rejected by vote, 13 Cabinet appointees

withdrew before the Senate voted. Additional names have been floated among
senators, but they didn’t receive the support to justify the official nomination.

Senate Standoffs The two most recent standoffs on Cabinet appointments

came in 1989 and in 2017. President George H. W. Bush named former Senator

John Tower as secretary of defense, and President Donald J. Trump nominated

Betsy DeVos as secretary of education. Senator Tower had served in the Senate

since Lyndon Johnson vacated the seat to become vice-president. Tower had

the resume and experience to serve as defense secretary. He served in World

War II and later as the chairman of the Senate Armed Services Committee.

Upon his nomination, even Democratic Party leaders anticipated his

nomination would sail through. However, allegations of heavy drinking and

“womanizing” surfaced. Additionally, Tower owned stock in corporations with

potential future defense contracts, an obvious conflict of interest. President

Bush stuck by his former congressional colleague (Bush had represented Texas

in the House). In the end, the Senate voted Tower down 53 to 47.

In 2017, President Trump nominated Betsy DeVos as education secretary.

Like some conservatives, she held interest in privatizing education and, if

confirmed, she would pursue that agenda goal. Despite DeVos advocating for

private schools for many years before her nomination, she had never worked

in public schooling in any capacity, including as a teacher, and along with her

billionaire husband she had invested in for-profit charter schools and pushed

for online education. The educational community was generally against her

nomination, with some exceptions. At her public confirmation hearing, many

senators expressed concern about her priorities, her experience, and her high

dollar donations to Republican candidates. As she fielded questions before the

Senate committee, her competence in the field seemed shaky. Exchanges on

school choice, guns in schools, students with disabilities, and private or online

school accountability raised eyebrows on Capitol Hill and in news reports that

followed. In the end, two Republican senators voted against her, leaving the

Senate in a dead tie. Vice President Pence’s tie-breaking vote made DeVos the
secretary of education.

Ambassador Appointments The Senate is also likely to confirm

ambassador appointments, although those positions are often awarded to people

who helped fund the president’s campaign rather than people well qualified for

the job. On one of the “Nixon Tapes” from 1971, Nixon tells his chief of staff

that “anybody who wants to be an ambassador must at least give $250,000.”

About 30 percent of ambassadors are political appointees. Some may have little

or no experience to qualify them, though they are rarely rejected by the Senate.

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Hotel magnate George Tsunis, appointed by President Obama as ambassador

to Norway, was questioned critically by Senator John McCain (R-AZ) in 2014

and shown to have limited understanding of Norwegian political issues; he

withdrew his nomination after a year when confirmation seemed unlikely.

Trump’s ambassador to the European Union, Gordon Sondland, donated

$1,000,000 to Trump’s inaugural fund.

THINK AS A POLITICAL SCIENTIST: EXPLAIN HOW POLITICAL

PROCESSES APPLY TO DIFFERENT SCENARIOS

A political process enables the creation of public policy when public opinion

and political institutions interact. For example, the Senate is the institution

that ensures the worthiness of presidential appointments to various federal

positions as a check on the executive branch. In addition to their individual

opinions on nominees, senators have to consider the reaction of the public

to those appointees. The approval or disapproval of presidential appointments

can be an indicator of the opinion of the people of the United States on key

issues at a point in the nation’s history.

Practice: Read the summaries of Senate action on presidential nominees and answer

the questions that follow.

Thurgood Marshall: Supreme Court, 1967. After having argued more than 30 cases

before the Supreme Court as an attorney, he was approved by a vote of 69–11. He

became the first African American to serve as a justice on the Court.

Sandra Day O’Connor: Supreme Court, 1981. Republican President Ronald Reagan

nominated the conservative leaning O’Connor. Her confirmation hearing was the first

televised and mostly dealt with the topic of abortion. O’Connor was unanimously

approved and the first female to serve as a justice on the Court.

Robert Bork: Supreme Court, 1987. In one the most lopsided margins for a failed vote,

58–42, Bork was not approved by the Senate. Senators attacked Bork’s belief that the

Constitution had no right to privacy and subsequently was not guaranteed by federal

actions. The American Civil Liberties Union (ACLU) and several women’s groups

expressed strong opposition to Bork’s nomination.

John Tower: Secretary of Defense, 1989. President Bush’s choice of Tower was met

with strong congressional opposition, as he was believed to own stock in defense

companies and therefore had a conflict of interest. There were also questions about

his character as he was seen as a heavy drinker and womanizer. The Senate voted

against Tower 53–47.

1. How would you characterize the approval of Thurgood Marshall, considering the

state of race relations in the 1960s? (See Topic 3.10 for more on civil rights.)

2. How might the Supreme Court case of Roe v. Wade (1973) have influenced the

nomination and approval of O’Connor? (See Topic 3.9 for more on Roe v. Wade.)

3. What can be inferred as a key issue of the 1980s from the failed appointments of

Robert Bork and John Tower?

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Removal The president can remove upper-level executive branch officials

at will, except those that head independent regulatory agencies. (See Topic 2.13.)

A president’s power of removal has been the subject of debate since the writing

of the Constitution. Alexander Hamilton argued that the Senate should, under

its advice and consent power, have a role in the removal of appointed officials.

James Madison, however, argued that to effectively administer the government

the president must retain full control of subordinates. The Article II phrase

that grants the president the power to “take care that the laws be faithfully

executed” suggests the president has a hierarchical authority over secretaries,

ambassadors, and other administrators. This issue brought Congress and

the president to a major conflict in the aftermath of the Civil War. President

Andrew Johnson dismissed Secretary of War Edwin Stanton, congressional

Republicans argued, in violation of the Tenure of Office Act. This action led to

Johnson’s impeachment.

he question of removal resurfaced in 1926. The Supreme Court concluded

that presidential appointees “serve at the pleasure of the president.” The Court

tightened this view a few years later when it looked at a case in which the

president had fired a regulatory agency director. The Court ruled in that case

that a president can dismiss the head of a regulatory bureau or commission

but only upon showing cause, explaining the reason for the dismissal. The

two decisions collectively define the president’s authority: executive branch

appointees serve at the pleasure of the president, except regulatory heads,

whom the president can remove with explanation.

Judicial Interactions

Presidents interact with the judiciary in a few ways. As the head of the

executive branch, presidents enforce judicial orders. For example, when the

Supreme Court ruled in 1957 that Central High had to admit nine African

American students into the school, President Eisenhower ordered the 101st

Airborne Division into Little Rock, Arkansas, to ensure the school followed the

court order. The branches also interact when courts check the executive if they

ind presidential action unconstitutional. For example, in 1952 the Supreme

Court overturned President Truman’s decision to nationalize steel industries

during the Korean War. Truman had taken that step to mobilize resources for
the Korean War and also to prevent a strike by steelworkers. The Court ruled,

however, that the president lacked authority to seize private property.

In 2014, President Obama announced an executive order that would delay

the deportation of millions of illegal immigrants. The order was met with strong

opposition from Republicans. By the end of the year, 26 states, led by Texas,

took legal action to stop Obama’s plan. The case made it to the Supreme Court,

and a 4-4 split affirmed a lower court injunction, ultimately blocking Obama’s

order. It was an eight-member Court due to the death of Justice Antonin Scalia.

Judicial Appointments A more frequent encounter of the two branches

comes when presidents appoint federal judges. All federal judges serve for

life terms, so only a fraction of the federal courts will have openings during

156 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

a president’s time in office. Yet presidents see this opportunity as a way to

put like-minded men and women on federal benches across the country. Of

course, like appointments in the executive branch, the Senate must approve

these nominees.

While standoffs about Cabinet appointees are rare, judicial nominations

are another story. Judges have greater influence of shaping the law and can

serve for life, so there is more at stake. The president appoints scores of federal

judges during each four-year term, because, in addition to the nine justices on

the Supreme Court, nearly 1,000 federal judges serve the other federal courts.

hroughout U.S. history, 30 Supreme Court nominees have been rejected by

a Senate vote. Many other lower court nominees have also been rejected or

delayed to the point of giving up on the job.

he interaction between the branches on these judicial nominees is

complicated and sometimes contentious. Senate rules and traditions govern

the process. Senators, especially those on the Judiciary Committee, expect

to advise presidents on selecting these nominees and are sometimes slow to

consent to the president’s choices. They, too, realize the longevity of a federal

judge’s service. If the president appoints like-minded judges, senators on the

opposite end of the ideological spectrum are unlikely to welcome the judges,

since their future decisions could define controversial or unclear law.

A divided electorate has caused majority control of the Senate to shift

from one party to the other, and the cloture motion has served a somewhat

stabilizing function. (See Topic 2.2.) According to a 2013 decision, if a senator

wants to block a judicial nomination with a filibuster, only a simple majority of

senators would be required to prevent that.

REFLECT ON THE ESSENTIAL QUESTION

Essential Question: How could the president’s agenda cause confrontations with

Congress? On separate paper, complete a chart like the one below.

Areas of Conflict Between the

President and Congress

Examples of Conflict Between the

President and Congress

KEY TERMS AND NAMES

ambassadors

Cabinet

chief of staff

inherent powers

Joint Chiefs of Staff

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2.6

Expansion of Presidential Power

“The imperial presidency, created by wars abroad, has made a bold bid

for power at home.”

—Historian Arthur Schlesinger, The Atlantic Monthly, 1973

Essential Question: How have presidents interpreted and explained

their use of formal and informal powers?

Since the creation of the office, United States citizens have come to expect

more and more from the president. A constant push and pull on the office

ultimately defines what a president can do. The framers set forth specific

guidelines, yet presidents continue to challenge the constitutional framework.

For example, not long after Donald J. Trump was sworn into office in January

2017, the debate about his powers intensified. As he tried to move his policy

agenda forward, he met with resistance and tension from Congress, the courts,

the media, and some protesting citizens. President Trump is not alone in facing

resistance. Other presidents have also had conflicts as they increased the power

of the office in their efforts to accomplish policy goals.

An Enhanced Presidency

he presidency is shaped by Article II, five constitutional amendments, federal

law, Supreme Court decisions, customs, and precedents. This limited executive

office was designed to carry out Congress’s policies. The office, however, has

become a powerful captain’s ship of state, buoyed by support institutions and

American expectation.

FOUNDATIONAL DOCUMENTS: FEDERALIST NO. 70

Critics of the proposed Constitution questioned Article II and the creation of the

presidency. A single person in charge of the administration of government and

the executive branch, the Anti-Federalists argued, would be dangerous. Twenty

ive of the Federalists’ essays address Article II, and 42 different passages across

the collection of these essays make points about the chief executive, presidential

powers, term, relationship to the other branches, and the method of elections.

In Federalist No. 70, Alexander Hamilton, writing as Publius, foreshadows the

“ingredients” of the presidency and mainly focuses on the value of the unity in a

single executive to avoid conflicts and to ensure accountability.

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[The framers] have declared in favour of a single executive, and a numerous

legislature. They have with great propriety, considered energy as the most

necessary qualification of the former, and have regarded this as most applicable

to power in a single hand . . . Wherever two or more persons are engaged in any

common enterprise of pursuit, there is always danger of difference of opinion . . .

And what is still worse, they might split the community into the most violent

and irreconcilable factions, adhering differently to the different individuals who

composed the Magistracy . . .

But the multiplication of the Executive adds to the difficulty of detection in either

case. It often becomes impossible, amidst mutual accusations, to determine on

whom the blame or the punishment of a pernicious measure, or series of pernicious

measures, ought really to fall. It is shifted from one to another with so much

dexterity, and under such plausible appearances, that the public opinion is left in

suspense about the real author . . .

When power, therefore, is placed in the hands of so small a number of men, as to

admit of their interests and views being easily combined in a common enterprise,

by an artful leader, it becomes more liable to abuse, and more dangerous

when abused, than if it be lodged in the hands of one man; who, from the very

circumstance of his being alone, will be more narrowly watched and more readily

suspected, and who cannot unite so great a mass of influence as when he is

associated with others.

Political Science Disciplinary Practices: Analyze and interpret Federalist No. 70

When Publius wrote the Federalist articles, the authors were trying to convince those

in the Anti-Federalist camp to support ratification of the Constitution. For this reason,

the arguments Hamilton presented reflected the concerns of the Anti-Federalists,

those who feared the “fetus of monarchy” because of their recent experience with the
British monarch. With this in mind, consider the perspective of each side of the debate.

Apply: Complete the activities below.

1. Describe the authors’ central claim about a chief executive.

2. Explain how the authors’ argument for that claim ensures a better government.

3. Explain how the implications of the authors’ argument may affect the behavior

of the chief executive.

Presidential Interpretation of Power

he presidential role has been shaped as unforeseen situations and events

occurred during the nation’s history. Several key presidents have had larger

roles in defining the powers of the chief executive.

Washington’s Example For first President George Washington, the

Constitution provided a mere five-paragraph job description. He took on the

role with modesty and accepted being addressed as “Mr. President” as a title,

though some suggested more lofty labels.

Washington had some key accomplishments, primarily instilling public

confidence in the nation’s constitutional experiment. Though he surely would

have won a third term, Washington chose to leave government after his second

EXPANSION OF PRESIDENTIAL POWER

159

term to allow others to serve and to allay any fears of an overbearing executive.

he presidents who followed Washington had moments of questionable

initiative and international confrontation, but most of the early presidents

faithfully carried out congressional acts, exercised the veto minimally, and

followed Washington’s precedent to serve no more than two terms. Thomas

Jefferson purchased the Louisiana Territory without congressional approval.

James Madison marshaled the Congress to a second war against Great Britain.

James Monroe established the Monroe Doctrine, a foreign policy assuring U.S.
dominance in the Western Hemisphere. For the most part, however, these

powerful men let Congress fill its role as the main policymaking institution

while the presidents executed Congress’s laws.

The Imperial Presidency

Yielding to Congress, however, began to fade as stronger presidents came to

office. The president’s strength relative to that of Congress has grown steadily,

with occasional setbacks, to create a kind of imperial presidency, a powerful

executive position guided by a weaker Congress. Webster’s Dictionary defines

an imperial presidency as “a U.S. presidency that is characterized by greater

powers than the Constitution allows.” Historian Arthur Schlesinger Jr.

popularized the term with his 1973 book of the same name. The book was

published at the pinnacle of an overreaching Nixon presidency.

Enlightenment philosopher John Locke argued that legislative bodies are

slow to respond in emergencies, so an executive should be occasionally allowed

expanded powers. War, economic problems, and domestic crises have raised

expectations for strong leadership.

Source: Library of Congress

President Andrew Jackson’s critics often questioned if

he had stepped outside his authority. What symbols

does the cartoonist use to signal this accusation? What

is at Jackson’s feet? What does he hold in his hand?

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Personality and Popularity The dominating personality and popularity

of the headstrong Andrew Jackson (1829–1837) brought about a noticeable

shift in presidential power. Jackson was a successful military general who had

led the southern expedition that forcibly relocated the Native Americans. As

president, he blazed a path of executive dominance. He used the veto 12 times,

more than any president had before. Jackson’s opposition to a national bank,

combined with his forceful demeanor, created a rift between the president and
other branches, while his popularity among farmers and workers in an age of

expanded suffrage and increased political participation enhanced his power

even more.

During the presidencies of chief executives who served after Jackson and

before Abraham Lincoln, the powers of the presidency contracted. None of

these eight presidents served more than one term, and two died in office.

Franklin Pierce and James Buchanan, who preceded Lincoln, are noted for

their lack of presidential leadership and clear policy agenda and for allowing

the nation to drift toward civil war. Historians rank Buchanan and Pierce near

the bottom of the list of effective presidents.

National Crisis After Southern states seceded, Abraham Lincoln (1861

1865) once again expanded the presidency as he assumed sweeping presidential

powers to save the Union and to limit slavery. Lincoln went as far as suspending

habeas corpus, the protection against unlawful imprisonment, over fears that

riots in Maryland might interrupt Union troop movement. Chief Justice Roger

Taney issued an opinion that only Congress could suspend habeas corpus

but had little power to enforce his views during the crisis of the Civil War.

Historian Arthur Schlesinger wrote, “Lincoln ignored one constitutional

provision after another. He assembled the militia, enlarged the Army and Navy

beyond the congressional appropriation, suspended habeas corpus, arrested

‘disloyal’ people, asserted the right to proclaim martial law behind the lines, to

arrest people without warrant, to seize property, and to suppress newspapers.”

Lincoln is generally excused for these constitutional violations because he

stretched the powers of his office in the name of saving the United States and

emancipating slaves.

On the World Stage In the late 1800s, the United States began to compete

on an international stage with the industrial and imperial powers of Europe.

For example, to protect U.S. “open door” trade interest in China, President

William McKinley sent 5,000 American troops to end the Boxer Rebellion.
As the United States became a world military and industrial power,

heodore Roosevelt (1901–1909) and Woodrow Wilson (1913–1921)

stretched presidential power in the name of advancing the nation and serving

the people. Roosevelt’s gallant Rough Rider background from the Spanish

American War and his brash, forward manner gained people’s respect. His

progressive actions for environmental conservation and standing against

corporate giants contributed greatly to both his reputation and his legacy.

He strengthened the Monroe Doctrine with his foreign policy motto that the

United States would “speak softly and carry a big stick.” During his tenure, he

EXPANSION OF PRESIDENTIAL POWER

161

sent troops to Cuba and the Philippines, and he sent the U.S. Navy around the

world. He also acquired property from Panama to build a canal. (See Topic 2.4.)

Roosevelt’s so-called stewardship theory approach to governing presumed

the president had a duty to act in national interests, unless the action was

clearly prohibited by the Constitution. Like a good steward, Roosevelt insisted,

the president should exercise as much authority as possible to take care of the

American people, as Lincoln had done before him. “I have used every ounce of

power there was in the office,” he wrote.

Democrat Woodrow Wilson (1913–1919) became a strong leader with

an international voice. When he delivered his State of the Union report to the

Congress, the first in-person address since John Adams, Wilson created for

himself a platform from which to present and gain popularity for his ideas. His

involvement in international affairs became inevitable as the United States entered

World War I. “We can never hide our president again as a mere domestic officer,”

he wrote. “We can never again see him the mere executive he was in the [past]. He

must stand always at the front of our affairs, and the office will be as big and as

influential as the man who occupies it.”

T

he Turning Point In a discussion of presidents who expanded the reach of

the office, there is perhaps no better example than Theodore Roosevelt’s cousin,

Franklin Delano Roosevelt (FDR) (1933–1945). He became president during the

Great Depression (1929–1941), the most severe economic crisis in history. The

large coalition that rallied behind him included people from nearly every walk of

life who had been harmed by the Depression. His New Deal programs promised

to bring the nation out of despair.

FDR arrived in Washington with revolutionary ideas that fundamentally

changed not only the role of the presidency but also the role of the whole

federal government. He recommended and Congress passed laws that required

employers to pay a minimum wage, created the Social Security system, and

started a series of public works programs to stimulate the economy. In trying

to prevent a conservative Supreme Court from striking down his self-described

liberal legislation, he moved to increase the number of seats on the Court with

plans to place judges favorable to his proposals on the bench (See Topic 2.10.)

his “court packing” plan failed, but it illustrates Roosevelt’s imperial tendencies.

He ran for and won an unprecedented third term, in 1940, as the United States

moved closer to entering World War II.

he foreign policy dilemma that resulted in war with Germany and Japan

only strengthened FDR’s leadership and America’s reliance on him. As Roosevelt

mobilized the nation for an overseas war, he overpowered civil liberties in the

name of national security by authorizing the creation of “military areas” that paved

the way for relocating Japanese Americans to internment camps. At the time,

FDR acted as a wartime Commander in Chief, not as an administrator concerned

about constitutional rights. What would have seemed autocratic in peacetime was

largely accepted as an appropriate security measure during wartime. This action by

Roosevelt was upheld by the Supreme Court in Korematsu v. United States (1944).

Americans rallied behind their Commander in Chief and accepted most of his

measures, electing him to a fourth term, although he died 82 days into it.

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THINK AS A POLITICAL SCIENTIST: DESCRIBE THE AUTHOR’S CLAIM

AND PERSPECTIVE

he author of a speech has a main point, or several points, intended to make an

impression on an audience. In an argument, the main point is called a claim.

President Franklin Roosevelt is considered one of the great persuasive and

inspirational speakers in U.S. history. His messages were clearly delivered and

resonated with many people. He used his exceptional skill in his many radio

speeches as the United States addressed its worst financial crisis, the Great

Depression, and prepared for another crisis, World War II. President Roosevelt

used executive powers to their fullest to get the nation moving toward recovery

from the Depression. He also used his gift for argument and persuasion to

mobilize the nation to face the challenges ahead.

Practice: The following excerpt is from Franklin Roosevelt’s 1941 State of the Union

Address. Read the excerpt and answer the questions that follow.

. . .These are the simple, basic things that must never be lost sight of in the turmoil

and unbelievable complexity of our modern world.

Many subjects connected with our social economy call for immediate

improvement. As examples:

We should bring more citizens under the coverage of old-age pensions and

unemployment insurance.

We should widen the opportunities for adequate medical care.

We should plan a better system by which persons deserving or needing gainful

employment may obtain it.

I have called for personal sacrifice. I am assured of the willingness of almost all
Americans to respond to that call.

If the Congress maintains these principles, the voters, putting patriotism ahead

of pocketbooks, will give you their applause.

In the future days, which we seek to make secure, we look forward to a world

founded upon four essential human freedoms.

The first is freedom of speech and expression—everywhere in the world.

The second is freedom of every person to worship God in his own way—

everywhere in the world.

The third is freedom from want—which, translated into world terms, means

economic understandings which will secure to every nation a healthy peacetime

life for its inhabitants—everywhere in the world.

The fourth is freedom from fear—which, translated into world terms, means a

world-wide reduction of armaments to such a point and in such a thorough fashion

that no nation will be in a position to commit an act of physical aggression against

any neighbor—anywhere in the world.

1. What is one claim Roosevelt makes in this speech?

2. What is FDR asking the American public to do?

3. Does Roosevelt’s speech seem to be from the perspective, or point of view, of

an “imperial president?” Explain your answer.

4. Is FDR acting within powers granted to the president in the Constitution?

EXPANSION OF PRESIDENTIAL POWER

163

he Twenty-second Amendment, however, ratified in 1951, prevents any

president from serving more than two consecutive terms or a total of ten years.

If a person becomes president by filling a vacancy, that person can still serve

two consecutive terms—hence the ten-year limit.

Contemporary Expansion of Powers

In the post-World War II era, the presidency has grown even stronger. Cold
War tensions, military engagements abroad, and greater expectations to protect

Americans in the age of terrorism have further imperialized the American

presidency.

War Powers Act President Johnson mobilized the U.S. Army into Southeast

Asia in 1964. After reports of a naval skirmish off the coast of Vietnam in the

Tonkin Gulf (which were later found to be untrue), Congress delegated power

in times of war to the president with the Tonkin Gulf Resolution, allowing

the president “to take all necessary measures to repel any armed attack against

the forces of the United States to prevent further aggression.” Congressional

leaders rushed through the resolution in a stampede of misinformation and

misunderstanding. This rapid reaction to aggressive Communists led to a long

and unpopular war.

In 1973, Congress decided to fix this political mistake and passed the War

Powers Act. The law maintains the president’s need for urgent action and

defense of the United States while preserving the war-declaring authority of

Congress. The president can order the military into combat 48 hours before

informing Congress. In turn, Congress can vote to approve or disapprove any

presidential military action at any time, with the stipulation that the vote must

take place within 60 days, or within 90 days if the Congress offers an extension.

he Commander in Chief’s authority often shifts with each president. In

the recent war on terrorism, President Obama developed his own policy for

targeting top al-Qaeda enemies and operatives. In certain situations, taking

into account knowledge of their whereabouts and calculations of potential

innocent victims, Obama gave the order as Commander in Chief to kill these

leading terrorists. Scores were eliminated by armed drones.

164 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

Source: Wikimedia Com

mons, Pete Souza

President Obama and

his staff await an update

on the status of the raid

by U.S. Special Forces

on the compound of

terrorist leader Osama

bin Laden.

In 2020 President Trump used his power as Commander in Chief to continue

the war on terror with a drone strike that killed top Iranian general, Qassem

Soleimani. The Trump administration claimed Soleimani was responsible

for the deaths of hundreds of U.S. soldiers and was planning an “imminent”

attack; therefore, the president’s decision was in the interest of the security of

the United States. The president did notify Congress within 48 hours of the

strike in accordance with the War Powers Act. Yet some members of Congress

decried the briefing as lacking in details about the killing and the plans to move

forward, making it clear that any further military escalation with Iran would

require congressional approval.

REFLECT ON THE ESSENTIAL QUESTION

Essential Question: How have presidents interpreted and explained their use

of formal and informal powers? On separate paper, complete a chart like the

one below.

Presidential Expansion of Power

Response to Expansion of Presidential Power

KEY TERMS AND NAMES

Federalist No. 70

imperial presidency

Jackson, Andrew

Lincoln, Abraham

Roosevelt, Franklin D.
Roosevelt, Theodore

stewardship theory

Twenty-second Amendment (1951)

Washington, George

War Powers Act (1973)

Wilson, Woodrow

EXPANSION OF PRESIDENTIAL POWER

165

2.7

Presidential Communication

“By the time he reached the presidency, Reagan had talked before so

many audiences and cameras that they were both his friends.”

—Presidential Aide David Gergen, Eyewitness to Power, 2000

Essential Question: How has communication technology changed the

president’s relationship with the American people and other branches?

The Constitution grants the president the power “to recommend” to Congress

“such measures as he shall judge necessary and expedient,” meaning he can try

to influence the legislative actions of Congress, especially from the perspective

of the manager who would carry out such policies. How a president attempts to

persuade the legislative branch and shape policy has changed dramatically over

the life of the Constitution. In addition, the way the president communicates to

the people of the United States has changed significantly.

Communicator in Chief

In a democracy, the president’s need to communicate with the citizenry and

keep good relations with Americans is essential for success. Citizens must desire

the president’s proposed bills and foreign policy plans. If not, they will pressure

their representative or senator to vote against them. The executive branch must

publicize its reasons and benefits for proposed legislation. Another function the

president assumes, then, is “communicator in chief.” Meanwhile, a free press

entitles citizen-journalists to tell their readers, listeners, and viewers about the

government. Among the government entities they are most interested in is the

executive branch and its head, the president.

Relationship with the Press

In the early 1900s, as national newspapers grew, Theodore Roosevelt developed

a unique relationship with the press. He referred to the presidency as a bully

pulpit—a prominent stage from where he could pitch ideas to the American

people. With “bully,” he meant “excellent,” not aggressive or violent, persuasion.

He could speak to the people using his powers of persuasion, and the people would

in turn persuade Congress. He sometimes spoke with reporters while getting his

morning shave. With his colorful remarks, unique ideas, and vibrant persona,

Roosevelt always provided a good story. He and his Cabinet officials distributed

speeches and photos to journalists to use in their reports, and he saved the richest

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pieces of information for his favorite journalists. The media’s attention on the

president enhanced the power of the bully pulpit. Though he did not mean “bully”

in the modern sense, his actions often had that persuasive effect on Congress.

Later in the 1930s, in efforts to gain support for his New Deal legislation,

heodore Roosevelt’s cousin, Franklin Delano Roosevelt (FDR) used his

informal powers of persuasion to ensure that Congress enacted the measures.

FDR used the popular radio medium to address Americans during his “fireside

chats.” He reassured a worried populace and articulated his solutions in a

persuasive way. After each “chat,” letters from listeners flooded Congress to

support the president’s ideas.

State of the Union Address The Constitution requires the president to

report to Congress from time to time on the state of the Union. The president

explains the economic, military, and social state of the nation, proposes new

policies, and explains how government programs are being administered. George
Washington and John Adams drafted their first reports and delivered these in

person as speeches. Thomas Jefferson broke that pattern, declaring a speech

looked too much like a British monarch opening Parliament, so he delivered his

report on paper only, a practice that endured for a century after that.

In 1913, Woodrow Wilson revived the speech approach, thus redefining

the report as an event. Since then all presidents have followed suit, taking

advantage of the opportunity through the expanding media to reach millions

of Americans who listen on the radio, watch on television, or stream online. In

late January or early February, both houses of Congress convene and receive

the president, Cabinet, and the address. Presidents realize they can command

a large audience and a few news cycles to follow. Carefully crafted speeches

include statistics and sound bites that will help propel presidents’ initiatives.

Source: National Archives and Records

Administration

In this cartoon, Theodore Roosevelt, a

master of communication and manipulating

the bully pulpit, notices that President

Woodrow Wilson’s in-person State of the

Union Address upstaged his use of the bully

pulpit.

PRESIDENTIAL COMMUNICATION

167

THINK AS A POLITICAL SCIENTIST: EXPLAIN HOW POLITICAL

BEHAVIORS APPLY TO DIFFERENT SCENARIOS

Political behavior refers to the broad category of involvement in the political

process by individuals or groups. This behavior can involve such actions

as voting, participating in interest groups, and working for social change.

A president can have a significant effect on the public’s political behavior.

Evolving media throughout the nation’s history have given the president many
more opportunities to communicate with the public. The changing media have

also given citizens much more access to the president.

Practice: Read the excerpts from three presidents’ speeches during various economic

crises the nation experienced. Identify the political behavior the president is trying

to encourage in each excerpt. Also, explain one similarity and one difference among

these messages to the people of the United States.

1.

James Madison, State of the Union, 1819—during the Panic of 1819:

“The great reduction in the price of the principal articles of domestic growth

which has occurred during the present year, and the consequent fall in the price of

labor, apparently so favorable to the success of domestic manufactures, have not

shielded them against other causes adverse to their prosperity. . . . It is deemed of

great importance to give encouragement to our domestic manufacturers. In what

manner the evils which have been adverted to may be remedied, and how far it may

be practicable in other respects to afford to them further encouragement, paying

due regard to the other great interests of the nation, is submitted to the wisdom

of Congress.”

2. Franklin Roosevelt, first Fireside Chat, 1933—during the Great Depression:

“After all, there is an element in the readjustment of our financial system more

important than currency, more important than gold, and that is the confidence of the

people themselves. Confidence and courage are the essentials of success in carrying

out our plan. You people must have faith; you must not be stampeded by rumors or

guesses. Let us unite in banishing fear. We have provided the machinery to restore

our financial system; and it is up to you to support and make it work.”

3. Ronald Reagan, Address to the Nation on Federal Tax Reduction, 1981—during

recession and high inflation of the early 1980s.

“It’s been nearly 6 months since I first reported to you on the state of the nation’s

economy. I’m afraid my message that night was grim and disturbing. I remember

telling you we were in the worst economic mess since the Great Depression. . . .all
because government was too big and spent too much of our money. . . .”

“Our struggle for nationhood, our unrelenting fight for freedom, our very existence. .

. . no one can stop you from reaching higher or take from you the creativity that has

made America the envy of mankind.”

“One road is timid and fearful; the other bold and hopeful. . . .”

“It’s been the power of millions of people like you who have determined that we will

make America great again. You have made the difference up to now. You will make

the difference again. Let us not stop now.”

168 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

Communications Staff The expansion of the media has redefined the

communications office’s role. In the days before television, presidents from

Coolidge to Eisenhower held press conferences before a mix of print journalists

and radio broadcasters. In the 1930s, Franklin Roosevelt pioneered the radio

message with his fireside chats, and John F. Kennedy did the first live televised

press conferences in the early 1960s. The communication office works to control

information coming out of the White House and try to shape the president’s

message that will ultimately define his policy agenda and its success or failure.

he White House press secretary is appointed by the president. The chief

responsibility is to keep the White House press corps aware of important events

in the president’s schedule and knowledgeable about presidential actions.

Spin and Manipulation The press conference is in many ways a staged

event. Press secretaries and presidents anticipate questions and rehearse in

advance with planned answers. President George W. Bush’s critics complained

that his press relations were an affront to the media. Reporter and media expert

Eric Alterman and others reported how the Bush administration was caught

manipulating the news process. The president’s administration distributed

government-prepared “news reports” to local TV stations across the country

to promote his programs, planted a fake reporter in the briefing room to throw
softball questions at the president’s press secretary, and paid large sums of

public money to writers to promote their programs. The most notable example

was a payment of $240,000 that went to conservative columnist and radio host

Armstrong Williams to promote Bush’s No Child Left Behind initiatives.

Modern Technology and a Social Media President

From advances in the printing press to the advent of Twitter, presidents have had

to keep pace with technology. From Eisenhower to Clinton, the president could

cut into the big three television networks with an announced speech. Now,

with the exception of the State of the Union address, many public addresses

are aired only by lesser-watched cable TV channels. The 24-hour news cycle

is always hungry for headlines. The recent explosion of immediate electronic

communication, social media use, push notifications, and the reliance on the

Internet for information has transformed how the president communicates

with the people to accomplish his policy agenda.

Obama Embraces New Media On his way to the White House, President

Obama forecasted his media presence when he hired a 30-year-old “new

media director,” introduced a Twitter feed, and employed a videographer to

upload segments on YouTube and, later, on WhiteHouse.gov. As president,

Obama employed a 14-member staff on the new White House Office of Digital

Strategy, a crew slightly larger than George W. Bush’s press secretary’s office.

By his second term, President Obama had essentially created his own news

service, digitally transmitting a stream of photo images, videos, blog posts,

and interviews for social media sites for his fans and skeptics alike. Twitter,

Facebook, Snapchat, Instagram, and Flickr quickly became standard platforms

to broadcast his message.

PRESIDENTIAL COMMUNICATION

169

he Obama team found this digital bully pulpit useful in a continuing

effort to persuade the citizenry, who could then apply pressure on their

representatives in Congress to accomplish the Obama agenda. During his two

terms, the White House generated close to 300 infographics supplying people

with quick and digestible data. The Obama team worked hard to successfully

compress complex ideas and goals into Twitter bites. They found this strategy

useful and easy to microtarget—that is, to target certain audiences with specific

messages. In his quest for a health care law and amid the GOP’s efforts to stop

it, the White House established a “Reality Check” website which debunked his

opponents’ rumors about the drawbacks of the health care plan.

Image Control Presidents for some decades have employed a taxpayer

funded photographer. Congress has allotted the money for this purpose for the

good of the office, to create a record, and to connect people with government.

Obama’s photographer, Pete Souza, and the new media team used photography

as a way to legitimize his presidency, portray him as a man of the people,

promote policy programs, and generally chronicle his presidency.

Source: Wikimedia Commons, Pete

Souza

President Obama talks with Diego

Diaz through the Make-a-Wish

Foundation.

As photography has become affordable and common among media outlets,

independent photojournalists want to show the presidency with their own

original images and to tell the full story of the president, not the controlled

story. Much like Teddy Roosevelt’s efforts of shaping his image with expensive

photography more than a century ago, Obama’s publicly distributed photos

were carefully curated to show the president in a particular light.

“Obama [took] unprecedented advantage of the digital revolution in

photography,” says expert Cara Finnegan in an Illinois News Bureau interview. By

the end of his administration, his Flickr feed had more than 6,500 quality and well
chosen images. Meanwhile, the White House took steps to prevent independent

journalistic photographs, hoping that a greater share of White House-released

photos would dominate news websites. The press corps’ response revealed a

unique relationship between the president and the press. The president’s press

170 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

secretary, Jay Carney, found himself bombarded with complaints. “Our problem

is access,” said correspondent Ann Compton. “You can put out a million pictures

a day from the White House photographer, but you bar photos [from Air Force

One].” Correspondent Brianna Kieler declared, “Anyone here can tell you, that

there’s less access than under the Bush Administration.” Journalists were chafed

because the practice resembled media strategies of dictators in countries with no

free press and only state-approved images. Obama’s grand attempts to shape his

image and get the citizenry to know him led the New York Times to call him

“Obama the Omnipresent.”

Tweeter in Chief Within his first year in office, President Trump became

well known for the use of his Twitter feed to speak directly to the nation. Shortly

before taking office, Trump tweeted, “I use Social Media not because I like to,

but because it is the only way to fight a VERY dishonest and unfair ‘press,’ now

often referred to as Fake News Media. Phony and non-existent ‘sources’ are

being used more often than ever. Many stories & reports a pure fiction!”

Trump has all but severed the presidency’s relationship with objective

journalists and the mainstream media. Early in his tenure, Trump’s first

press secretary shared misleading information about crowd sizes and photos

from Trump’s inauguration. Daily press briefings were ended by the Trump

administration in March 2019 after many contentious exchanges between the

media and the president’s press secretaries, and Trump has refused to appear at

the White House Correspondents Association annual gala.

All presidents have a somewhat adversarial relationship with the press,

but Trump disparages journalists and refers to any mainstream media outlet
criticism as “fake news.” He has broken established presidential communication

norms repeatedly.

REFLECT ON THE ESSENTIAL QUESTION

Essential Question: How has communication technology changed the president’s

relationship with the American people and other branches? On separate paper, com

plete a chart like the one below.

Communication or Technology

Change

Presidential Use of Communication or

Technology

KEY TERMS AND NAMES

bully pulpit

State of the Union Address

PRESIDENTIAL COMMUNICATION

171

172 CHAPTER 5 REVIEW: LEARNING OBJECTIVES AND KEY TERMS

CHAPTER 5 Review:

Learning Objectives and Key Terms

TOPIC 2.4: Explain how the president can implement a policy agenda. (CON-4.A)

Formal and Informal Powers to Accomplish Policy Agenda (CON-4.A.1 & 2)

bargaining and persuasion informal powers

Commander in Chief line-item veto

formal powers pocket veto

executive agreement policy agenda

executive order signing statements

executive privilege veto

TOPIC 2.5: Explain how the president’s agenda can create tension and frequent

confrontations with Congress. (CON-4.B)

Conflict with Senate Over

Appointments (CON-4.B.1 & 2)

ambassador

Cabinet

chief of staff

Joint Chiefs of Staff

Congressional Conflict Over

Policy (CON-4.B.3)

inherent powers

TOPIC 2.6: Explain how presidents have interpreted and justified their use of formal

and informal powers. (CON-4.C)

Defining the Role and Power of the President (CON-4.C.1, 2, & 3)

Federalist No. 70 stewardship theory

imperial presidency Twenty-second Amendment (1951)

Jackson, Andrew Washington, George

Lincoln, Abraham War Powers Act (1973)

Roosevelt, Franklin D. Wilson, Woodrow

Roosevelt, Theodore

TOPIC 2.7: Explain how communication technology has changed the president’s

relationship with the national constituency and the other branches. (CON-4.D)

Modern Technology and Presidential Communication (CON-4.D.1)

bully pulpit State of the Union Address

CHAPTER 5 Checkpoint:

The Presidency

Topics 2.4–2.7

MULTIPLE-CHOICE QUESTIONS

Questions 1 and 2 refer to the graph below.

Average News Conferences per Year

Average News Conferences per Year

80
70

60

50

40

30

20

10

Source: The American Presidency Project

1. Which of the following statements describes a trend in the data based

on the chart?

(A) Coolidge, Hoover, and Roosevelt were the first to take advantage of

televised news conferences.

(B) The average number of press conferences dropped in the 1970s and

1980s.

(C) The most recent presidents have held the most frequent press

conferences.

(D) Presidents who gave more press conferences had higher approval

ratings.

Coolidge

Hoover

2. Which of the following statements do the data imply?

F. Roosevelt

Truman

(A) As more media platforms have become common, presidents have

steadily increased their number of news conferences.

Eisenhower

Kennedy

Johnson
Nixon

(B) Recent presidents are communicating in various ways and thus

need fewer press conferences.

(C) Presidents who held fewer press conferences were elected to only

one term.

(D) Press conferences are a product of the television era.

CHAPTER 5 CHECKPOINT: THE PRESIDENCY

Ford

Carter

Reagan

Bush

173

Clinton

G. W. Bush

Obama

3. Which of the following may the president do to control the

implementation of a policy agenda?

(A) The president can veto particular items or language in a bill he

disagrees with while enacting the remainder of the bill.

(B) The president can veto a congressional bill that has passed the

House and Senate.

(C) The president can refuse to spend money that Congress has

appropriated.

(D) The president can impeach selected members of Congress.

4. The president receives a bill in the middle of a congressional session

that has recently passed the Democrat-controlled House and Democrat

controlled Senate. This omnibus bill deregulates the food and

agriculture industries, something the president desires. Yet the bill also

funds modern art museums in San Francisco and New York City, which
the president thinks are unnecessary. Which action will the president

likely take?

(A) Exercise a line-item veto to exclude the funding for the art

museums while passing the deregulation part of the bill.

(B) Refuse to sign the bill, allowing it to die with a pocket veto.

(C) Sign the bill to gain the deregulations understanding that Congress

will fund the art museums.

(D) Sign the bill and explain in a signing statement that the

deregulations will be enforced but museum funds will not be

appropriated.

5. Which of the following accurately describes the president’s lawful use of

the War Powers Act?

(A) A president can declare war as long as it ends in 60 days.

(B) A president can engage an enemy abroad but must wait for

congressional approval and funding.

(C) A president can use the military abroad in combat as long as

Congress is informed within 48 hours.

(D) A president cannot act as Commander in Chief without a

congressional declaration of war.

174 CHAPTER 5 CHECKPOINT: THE PRESIDENCY

6. Which of the following is an accurate comparison of the president’s

Cabinet and White House staff?

CABINET

(A)

(B)

(C)

(D)

The Cabinet has more influence on

the president’s decision making than

does the White House staff.

Presidents can remove Cabinet

officials but only with Senate

approval.

The Cabinet includes department

secretaries and others the president

wishes to include.

WHITE HOUSE STAFF

Presidents have continually relied

less on their White House staff for

input in guiding government.

The White House staffers require

Senate approval before taking office.

The president engages with White

House staff more frequently than

with Cabinet secretaries.

The president can create new

Cabinet-level positions and

departments.

FREE-RESPONSE QUESTIONS

The White House staff includes

the attorney general and the FBI

director.

Concept Application

1. “This morning [Homeland Security] Secretary Napolitano announced new

actions my administration will take to mend our Nation’s immigration

policy to make it more fair, more efficient, and more just, specifically for

[young people. These] young people . . . study in our schools, they play in our

neighborhoods, they’re friends with our kids, they pledge allegiance to our
f

lag. They are Americans in their heart, in their minds, in every single way

but one: on paper. They were brought to this country by their parents . . . and

often have no idea that they’re undocumented . . . Over the next few months,

eligible individuals who do not present a risk to national security or public

safety will be able to request temporary relief from deportation proceedings

and apply for work authorization.”

—President Barack Obama, June 15, 2012

After reading the above passage, respond to A, B, and C:

(A) Describe the presidential power exhibited in the announced policy.

(B) In the context of the scenario, explain how the use of the power

described in part A can be affected by interactions between the

president and Congress.

(C) In the context of the scenario, explain how the interaction between

the president and Congress can be affected by the media.

CHAPTER 5 CHECKPOINT: THE PRESIDENCY 175

Quantitative Analysis

Makeup of Recent Presidential Cabinets

WOMEN

Reagan

G.H.W. Bush

Clinton

G.W. Bush

Obama

Trump

10%

14%

29%

18%
NONWHITE

10%

19%

29%

36%

WHITE MEN

27%

41%

27%

Notes

9%

81%

67%

48%

59%

36%

64%

— The 22 Cabinet-level positions in the Obama administration (not counting the Vice President) are

held constant across all five administrations, except for the Department of Homeland Security, which

wasn’t established until 2002. We have counted Tom Ridge, the first DHS secretary, as an initial pick

for George W. Bush.

— Census Bureau classifications were used for race. Hispanics are counted as nonwhite.

Credit: Meg Anderson, Danielle Kurtzleben and Alejandra Salazar/NPR

2. Use the information graphic to answer the following questions.

(A) Identify the demographic most represented in presidential

cabinets.

(B) Describe a difference in the demographic makeup of presidential

cabinets, as illustrated in the information graphic.

(C) Draw a conclusion about the difference you described.

(D) Explain how the makeup of presidential cabinets as shown in the

information graphic demonstrates the principle of presidential

leadership of the executive branch.

176 CHAPTER 5 CHECKPOINT: THE PRESIDENCY

CHAPTER 6

The Judiciary

Topics 2.8–2.11

Topic 2.8 The Judicial Branch

CON-5.A: Explain the principle of judicial review and how it checks the powers

of the other institutions and state governments. – Required Foundational Documents:

• Federalist No. 78

• The Constitution of the United States– Required Supreme Court Case:

• Marbury v. Madison (1803)

Topic 2.9 Legitimacy of the Judicial Branch

CON-5.B: Explain how the exercise of judicial review in conjunction with life

tenure can lead to debate about the legitimacy of the Supreme Court’s power.

Topic 2.10 The Court in Action

CON-5.B: Explain how the exercise of judicial review in conjunction with life

tenure can lead to debate about the legitimacy of the Supreme Court’s power.

Topic 2.11 Checks on the Judicial Branch

CON-5.B: Explain how the exercise of judicial review in conjunction with life

tenure can lead to debate about the legitimacy of the Supreme Court’s power.

CON-5.C: Explain how the other branches in the government can limit the

Supreme Court’s power.

Source: Wikimedia Commons

U.S. Supreme Court Building, Washington, DC

THE JUDICIARY

177

2.8
The Judicial Branch

“It is emphatically the province and duty of the judicial

department to say what the law is.”

—Chief Justice John Marshall, Opinion in

Marbury v. Madison, 1803

Essential Question: How does the principle of judicial review check the

power of the other branches and state government?

Most people have some understanding of trials in which one party sues

another and accused criminals are innocent until proven guilty. Courtroom

drama has been popular since Perry Mason—a 1950s television defense

attorney who lost only one case in a nine-year series. More recently, TV has

stereotyped small claims courts with a feisty, tell-it-like-it-is judge, a beefy

courtroom bailiff, and litigants who rudely yell at each other.

he true picture of the judiciary shows a revered institution shaped by

Article III of the Constitution, the Bill of Rights, and federal and state laws.

he courts handle everything from speeding tickets to death penalty cases.

State courts handle most disputes, whether criminal or civil. Federal courts

handle crimes against the United States, high-dollar lawsuits involving citizens

of different states, and constitutional questions. Federal courts are designed to

protect the judiciary’s independence. The U.S. Supreme Court is the nation’s

highest tribunal, which, through judicial review and its rulings, shapes the law

and how it is carried out.

Constitutional Authority of the Federal Courts

Today’s three-level federal court system consists of the U.S. District Courts

on the lowest tier, the U.S. Circuit Courts of Appeals on the middle tier, and

the U.S. Supreme Court alone on the top. These three types of courts are

known as “constitutional courts” because they are either directly or indirectly

mentioned in the Constitution. All judges serving in these courts are appointed

by presidents and confirmed by the Senate to hold life terms.

No national court system existed under the Articles of Confederation, so

the framers decided to create a national judiciary while empowering Congress

to expand and define it. Because states had existing courts, many delegates saw

no reason to create an entirely new, costly judicial system to serve essentially the

same purpose. Others disagreed and argued that a national judicial system with

178 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

a top court for uniformity was necessary. “Thirteen independent [state] courts

of final jurisdiction over the same cases, arising out of the same laws,” Federalist

No. 80 argued, “will produce nothing but contradiction and confusion.”

Article III

he only court directly mentioned in the Constitution is the Supreme Court,

though Article III empowered Congress to create “inferior” courts. Article III

established the terms for judges, the jurisdiction of the Supreme Court, the

definition of treason, and a defendant’s right to a jury trial.

Judge’s Terms All federal judges “shall hold their offices during good

behavior,” the Constitution states. Although this term of office is now generally

called a “life term,” most U.S. judges retire or go on senior status at age 65, and

a handful have been impeached and removed. This key provision empowers

federal judges to make unpopular but necessary decisions. The life term

assures that judges can operate independently from the other branches, since

the executive and legislative branches have no power to remove justices over

disagreements in ideology. The life term also allows for consistency over time

in interpreting the law. Congress cannot diminish judges’ salaries during their

terms in office. This way, Congress cannot use its power of the purse to leverage

power against this independent branch.

Jurisdiction The Supreme Court has original jurisdiction—the authority

to hear a case for the first time—in cases affecting ambassadors and public

ministers and those in which a state is a party. For the most part, however, the

Supreme Court acts as an appeals court with appellate jurisdiction.

Treason Article III also defined treason as “levying war” or giving “aid

or comfort” to the enemy. Treason is the only crime mentioned or defined in

the Constitution. Because English kings had used the accusation of treason

as a political tool in unfair trials to quiet dissent against the government,

the founders wanted to ensure that the new government could not easily

levy or prosecute that charge just to silence alternative voices. At least two

witnesses must testify in open court to the treasonous act in order to convict

the accused.

Right to Jury Trial Also mentioned in Article III is a criminal defendant’s

right to a jury trial. Many more rights of the accused were included later in the

Bill of Rights, but the framers saw the right to a jury trial as a citizen check on

government accusation and was thus included in the article.

FOUNDATIONAL DOCUMENTS: FEDERALIST NO. 78

Anti-Federalists were concerned about establishing an independent judiciary.

In England, Parliament could vote to remove judges from office, and it could

pass laws overriding judicial decisions. Brutus, the mouthpiece for the Anti

Federalists, expressed concern that there was no similar checking power on the

THE JUDICIAL BRANCH

179

Supreme Court. “Men placed in this situation,” he wrote in Brutus No. 15, “will

generally soon feel themselves independent of heaven itself.”

Alexander Hamilton and other Federalists did not share this concern.

In Federalist No. 78, Hamilton affirmed that the independent judicial branch

has the power of judicial review to examine acts of legislatures to see if they

comport with the proposed Constitution. He also emphasized that as long as

judges are acting properly, they shall remain on the bench. This “permanency”
shall protect them from the other branches when they make unpopular but

constitutional decisions. He believed an independent judiciary posed no threat.

However, the establishment of judicial review was not settled by Hamilton’s

writing. As you will read, the landmark decision in Marbury v. Madison (1803)

established that principle. Nonetheless, it is still debated today.

[The judiciary] will always be the least dangerous to the political rights of the

constitution; because it will be least in a capacity to annoy or injure them. . . .

[since it] has no influence over either the sword or the purse. . . .

[F]rom the natural feebleness of the judiciary, it is in continual jeopardy of being

overpowered, awed, or influenced by its coordinate branches; and that as nothing

can contribute so much to its firmness and independence as permanency in

office . . . No legislative act contrary to the Constitution, can be valid. To deny this,

would be to affirm, that the deputy is greater than his principal; that the servant is

above his master; that the representatives of the people are superior to the people

themselves. . . . A Constitution is, in fact, and must be regarded by the judges, as a

fundamental law. It therefore belongs to them [the judges] to ascertain its meaning,

as well as the meaning of any particular act proceeding from the legislative body. . . .

[T]he independence of the judges may be an essential safeguard against the

effects of occasional ill humors in the society. These sometimes extend no farther

than to the injury of the private rights of particular classes of citizens, by unjust and

partial laws. That inflexible and uniform adherence to the rights of the Constitution,

and of individuals, which we perceive to be indispensable in the courts of justice,

can certainly not be expected from judges who hold their offices by a temporary

commission.

Political Science Disciplinary Practices: Analyze and Interpret Federalist No. 78

When analyzing and interpreting sources, consider the following factors:

• Claims—What statements are asserted to be true?

• Perspective—How does the context (time, place, and circumstance) affect the

author’s viewpoints?
• Evidence—What facts or experiences does the author use to support claims?

• Reasoning—How does the author link the evidence to the claims?

Apply: Complete the following activities.

1. Describe Hamilton’s claim about the power of the judiciary.

2. Describe Hamilton’s perspective in terms of the context in which he argues his

support of the Federalist plan of government.

180 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

3. Describe the evidence Hamilton offers to back up his claim on the relative

power of the judiciary.

4. Describe Hamilton’s reasoning for supporting life terms.

5. Explain how the implications of Hamilton’s argument relate to checks and bal

ances in government.

You can read the full text of Federalist No. 78 online.

A Three-Level System

he first Congress essentially defined the three-tier federal court system

with the Judiciary Act of 1789. Originally, one district court existed in each

state. The law also defined the size of the Supreme Court with six justices, or

judges. President Washington then appointed judges to fill these judgeships. In

addition to the district courts, Congress created three regional circuit courts

designated to take cases on appeal from the district courts. Supreme Court

justices were assigned to oversee the U.S. appeals courts that includes clusters

of states, a “circuit,” and presided over periodic sessions. The justices would

hold one court after another in a circular path, an act that became known as

“riding circuit.”

Federal Court System

U.S. Supreme Court

• The Created by Article III of the Constitution

• Nine justices
• Hears 80–100 cases from October through June

• Has original jurisidiction in unique cases

• Takes appeals from circuits and top state courts

U.S. Circuit Court

• Created by Congress

• 11 regional courts

• 2 courts in Washington (D.C. and Federal)

• Nearly 200 total justices

• Takes appeals from district courts

• Justices sit in panel of three

U.S. District Court

• Trial courts created by Congress

• 94 districts

• Nearly 700 total justices

• Hear federal criminal and civil matters

THE JUDICIAL BRANCH

181

U.S. District Courts

here are 94 district courts in the United States—at least one in each state, and

for many less-populated western states, the district lines are the same as the

state lines. Districts may contain several U.S. courthouses served by several

federal district judges. Nearly 700 district judges preside over trials concerning

federal crimes, lawsuits, and disputes over constitutional issues. Annually, the

district courts receive close to 300,000 case filings, most of a civil nature.

A Trial Court U.S. district courts are trial courts with original jurisdiction

over federal cases. The litigants in a trial court are the plaintiff—the party

initiating the action—and the defendant, the party answering the claim.

In a criminal trial, the government is the plaintiff, usually referred to as the

“prosecution.” In civil trials, a citizen-plaintiff brings a lawsuit against another,

the defendant, who allegedly injured the plaintiff. “Injury” could be physical

injury—as one motorist may have recklessly caused to another—but more

often it is a financial injury, alleging the defendant’s fault, measured in dollars.

At times, it is an accusation that the government has injured a citizen, or a

company, by violating their liberty.

Federal Crimes The U.S. district courts try federal crimes, such as

counterfeiting, mail fraud, or evading federal income taxes—crimes that violate

the enumerated powers in the Constitution, Article I, Section 8. Most violent

crimes, and indeed most crimes overall, are tried in state courts. However,

Congress has outlawed some violent crime and interstate actions, such as drug

trafficking, bank robbery, terrorism, and acts of violence on federal property.

For example, in United States v. Timothy McVeigh (1998), the government

argued that McVeigh was responsible for an explosion in an Oklahoma City

federal building that killed 168 people. A federal court found him guilty and

sentenced him to death.

U.S. Attorneys Each of the 94 districts has a U.S. attorney, appointed by the

president and approved by the Senate, who represents the federal government

in federal courts. These executive branch prosecutors work in the Department

of Justice under the attorney general, assisted by the FBI and other federal

law enforcement agencies. Nationally, they try nearly 80,000 federal crimes

per year. Of those, immigration crimes and drug offenses take up much of the

courts’ criminal docket. Fraud is third.

Civil Cases Citizens can also bring civil disputes to U.S. court to settle a

business or personal conflict. Some plaintiffs sue over torts, or civil wrongs that

have damaged them. In a lawsuit, the plaintiff files a complaint, a brief explaining

the damages and why the defendant should be held liable. The plaintiff must

prove the defendant’s liability or negligence with a “preponderance of evidence”

for the court to award damages. Most civil disputes, even million-dollar lawsuits,
are handled in state courts.

Disputes involving constitutional questions also land in this court. In these

cases, a federal judge, not a jury, determines the outcome because these cases

182 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

183 THE JUDICIAL BRANCH

involve a deeper interpretation of the law. Sometimes a large group of plaintiffs

accuse the same party caused damage to them and will file a class action suit.

After a decision, courts may issue an injunction, or court order, to the losing

party in a civil suit, making them act or refrain from acting to redress a wrong.

Suing the Government Sometimes a citizen or group sues the

government. Technically, the United States operates under the doctrine of

sovereign immunity—the government is protected from suit unless it permits

such a claim. Over the years, Congress has made so many exceptions that it

even established the U.S. Court of Claims to allow citizens to bring complaints

against the United States. Individual citizens and groups also regularly bring

constitutional arguments before the courts. One can sue government officials

acting in a personal capacity. For example, the secretary of defense could be

personally sued for causing a traffic accident that caused thousands of dollars

in damage to another’s car. But the secretary of defense or Congress cannot be

sued for the loss of a loved one in a government-sanctioned military battle.

U.S. Circuit Courts of Appeals

Above the district courts are the U.S. Circuit Courts of Appeals. In 1891, with

U.S. expansion and the increased caseload for the traveling Supreme Court

justices riding circuit, Congress made the U.S. appeals courts permanent, full

time bodies. Appeals courts don’t determine facts; instead, they shape the law.

The losing party from a fact-based trial can appeal based on the concept of

certiorari, Latin for “to make more certain.” The appellant must offer some

AK

1
2

10

11

WA

OR

MT

ID

WY

CA

NV

UT

CO

AZ NM

ND

SD

NE

KS

OK

TX

AR

LA MS

AL
GA

FL

SC

NC

TN

KY MO

IA

MN

WI

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IL IN OH

MD

DC

FED

DE

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CT

RI

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VTNHME

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Eastern district

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Middle district M

Northern district

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Federal Circuits and Districts

WE

violation of established law, procedure, or precedent that led to the incorrect

verdict in a trial court. Appeals courts look and operate differently than trial

courts. Appeals courts have a panel of judges sitting at the bench but no witness

stand and no jury box because such courts do not entertain new facts, but

rather a narrow question or point of law.

he petitioner appeals the case, and the respondent defends the lower

court’s ruling. The public hearing lasts about an hour as each side makes oral

arguments before the judges. Appeals courts don’t declare guilt or innocence

when dealing with criminal matters, and they don’t generally reverse

judgements in civil suits. They rule on procedural matters in which the lower

courts or other parts of government may have erred, not followed precedent,

or violated the Constitution. They periodically establish new principles with

case law. After years of deciding legal principles, appeals courts have shaped

the body of U.S. law.

T

he U.S. Courts of Appeals consist of 11 geographic circuits across

the country. Appeals court rulings stand within their geographic circuits.

In addition to the 11 circuits, two other appeals courts are worthy of note.

he Circuit Court for the Federal Circuit hears appeals dealing with patents,

contracts, and financial claims against the United States. The Circuit Court of

Appeals for the District of Columbia, among other responsibilities, handles

appeals from those fined or punished by executive branch regulatory agencies.

he DC Circuit might be the second most important court in the nation and

has become a feeder for Supreme Court justices.

The United States Supreme Court

Atop this hierarchy is the U.S. Supreme Court, with the chief justice and eight

associate justices. The Supreme Court mostly hears cases on appeal from the

circuit courts and from the state supreme courts. The nine members determine

which appeals to accept, sit en banc (French for “on the bench,” where all judges

sit for the case) for attorneys’ oral arguments, pose questions, and engage in

a discussion with the litigants. They will consider their decision for weeks,

sometimes months, vote whether or not to overturn the lower court’s ruling,

and issue their reasoning. The Court overturns about 70 percent of the cases

it takes. Once the Supreme Court makes a ruling, it becomes the law of the

land. Contrary to what many believe, the Supreme Court doesn’t hear trials of

serial murders or billion-dollar lawsuits. However, it decides on technicalities

of constitutional law that have a national and sometimes historic impact. This

power of judicial review, to check the other branches, was established in the

1803 case of Marbury v. Madison.

MUST-KNOW SUPREME COURT CASE: MARBURY V. MADISON (1803)

The Constitutional Question Before the Court: Can an appointed judge sue for his
appointment, and does the Supreme Court have the authority to hear and implement

this request?

184 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

Decision: Yes and no. Unanimous, 4:0

Facts: This controversy started as a dispute regarding the procedures of appointments

during a presidential transition. Outgoing President John Adams had lost re-election to

Thomas Jefferson and, in one of his final acts as president, appointed several members

of his own Federalist Party to the newly created judgeships. The Senate had confirmed

these “midnight judges,” so-called because their appointment was made so late in

the tenure of President Adams. Secretary of State John Marshall, who had just been

named chief justice of the Supreme Court, had prepared the commissions, the official

notices of appointment, and had most of them delivered. William Marbury was among

17 appointees who did not receive official notice. Marshall simply left these to be

delivered by the next administration.

Once President Thomas Jefferson, a Democratic-Republican, took office, he instructed

his new Secretary of State, James Madison, to hold the commissions. Jefferson did

reappoint several of those appointees, but he refused others on partisan grounds.

Marbury wanted the Supreme Court to issue a court order known as a writ of

mandamus forcing Madison and the executive branch to deliver the appointment to

him and, thus, his job.

Marbury brought the case to the Supreme Court because of language in the relatively

new Judiciary Act of 1789 that defined the Supreme Court’s jurisdiction in cases

like his.

Reasoning: Marshall’s Supreme Court took the case and determined that an

appointed judge with a signed commission could sue if denied the job. (That is the yes

vote.) However, the Court also ruled that the law entitling Marbury to the commission

and the job, Section 13 of the Judiciary Act, ran contrary to Article III of the Constitution

when it decided that the court had original rather than appellate jurisdiction in such

cases. (That is the no vote.) Congress could not, the Marshall Court said, define the
Court’s authority outside the bounds of the Constitution.

The Court unanimously ruled that it had no jurisdiction in the matter, and in so ruling,

cancelled Marbury’s claim. It simultaneously instituted the practice of judicial review.

The Court had asserted its powers and checked Congress.

The Court’s Unanimous Opinion by Mr. Justice John Marshall:

If it had been intended to leave it in the discretion of the legislature to apportion the

judicial power between the supreme and inferior courts according to the will of that

body, it would certainly have been useless to have proceeded further than to have

defined the judicial power, and the tribunals in which it should be vested . . . .

The authority, therefore, given to the Supreme Court, by the act establishing the

judicial courts of the United States [the Judiciary Act of 1789], to issue writs of

mandamus to public officers, appears not to be warranted by the constitution . . . .

The act to establish the judicial courts of the United States authorizes the

Supreme Court “to issue writs of mandamus, in cases warranted by the principles

and usages of law, to any courts appointed, or persons holding office, under the

authority of the United States.” The secretary of state, being a person, holding an

office under the authority of the United States, is precisely within the letter of the

description; and if this court is not authorized to issue a writ of mandamus to such

an officer, it must be because the law is unconstitutional. . . .

It is emphatically the province and duty of the judicial department to say what

THE JUDICIAL BRANCH

185

the law is. Those who apply the rule to particular cases, must of necessity expound

and interpret that rule. If two laws conflict with each other the courts must decide

on the operation of each . . . .

So, if a law be in opposition to the Constitution; if both the law and the

constitution apply to a particular case, so that the court must either decide that

case conformably to the law, disregarding the constitution; or conformably to

the constitution, disregarding the law; the court must determine which of these
conflicting rules governs the case. This is of the very essence of judicial duty . . . .

Since Marbury: Marbury is a landmark case for its initiation of judicial review in

American jurisprudence and in defining common law. Marshall had declared at

the Virginian Ratifying Convention—a Federalist allaying fears of opponents to the

proposed Constitution—that Congress would not have power to make law on any

subject it wanted. A new federal judiciary, he said, “would declare void” any such

congressional act repugnant to the Constitution. Marshall became the first judge to do

just that.

Judicial review or striking down acts of Congress came as a rarity after Marbury. Not

until the infamous Dred Scott case in 1857 did the Court again strike down a law, this

time one that outlawed slavery north of the Missouri Compromise line. During the

Industrial Era (1874–1920) and into the 20th century, the Court used its power of judicial

review to strike down laws with greater frequency.

Political Science Disciplinary Practices: Analyze and Interpret Supreme Court

Decisions

1. Describe the law that led to the Marbury v. Madison case.

2. Explain the Court’s reasoning from the majority opinion.

3. Explain how the Court’s ruling establishes the power of judicial review.

4. Explain how the ruling in Marbury relates to the U.S. Constitution.

5. Explain how the ruling in Marbury relates to Federalist No. 78.

THINK AS A POLITICAL SCIENTIST: EXPLAIN HOW A SUPREME COURT

CASE RELATES TO A FOUNDATIONAL DOCUMENT

As the foundation of the U.S. government, the Constitution defines the powers

and roles of the branches. Yet, the Constitution has over the years needed to be

refined with an amendment or an interpretation by the court system.

For example, Article III of the Constitution defines the judicial branch of

the federal government but does not expressly confirm the power of judicial

review—a power occasionally practiced by courts by this time. The Supreme

Court’s first exercise of judicial review came with Marbury v. Madison (1803).
Practice: Read the excerpts on the next page from Article III and Article VI of the

Constitution and answer the questions that follow.

186 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

Article III

Section 1. Federal Courts The judicial power of the United States shall be vested in

one Supreme Court, and in such inferior [lower] courts as the Congress may from

time to time ordain and establish. The judges, both of the Supreme and inferior

courts, shall hold their offices during good behavior, and shall, at stated times,

receive for their services a compensation, which shall not be diminished during

their continuance in office.

Section 2. Jurisdiction of Federal Court [1] The judicial power shall extend

to all cases in law and equity arising under this Constitution, the laws of the

United States, to controversies to which the United States shall be a party; to

controversies between two or more states, between a state and citizens of another

state, between citizens of different states, between citizens of the same state

claiming lands under grants of different states, and between a state, or the citizens

thereof, and foreign states, citizens, or subjects.

Article VI

Section 2. Federal Supremacy This Constitution, and the laws of the United States

which shall be made in pursuance thereof, and all treaties made, or which shall

be made, under the authority of the United States shall be the supreme law of

the land; and the judges in every state shall be bound thereby, anything in the

Constitution or laws of any state to the contrary notwithstanding.

1. What powers are given to federal courts in these sections?

2. How does the decision in Marbury build on the powers expressed in the articles

above to establish the power of judicial review?

REFLECT ON THE ESSENTIAL QUESTION

Essential Question: How does the principle of judicial review check the power of the other

branches and state government? On separate paper, complete a chart like the one below.
Checks on Other Branches and States

Judicial Review and Marbury v. Madison

KEY TERMS AND NAMES

appellate jurisdiction

Attorney General

certiorari

Federalist No. 78

judicial review

Marbury v. Madison (1803)

original jurisdiction

U.S. District Courts

U.S. Circuit Courts of Appeals

U.S. Supreme Court

THE JUDICIAL BRANCH

187

2.9

Legitimacy of the Judicial Branch

“The Supreme Court, of course, has the responsibility of ensuring that

our government never oversteps its proper bounds or violates the rights

of individuals. But the Court must also recognize the limits on itself and

respect the choices made by the American people.”

—Justice Elena Kagan, Senate Confirmation Hearing, 2010

Essential Question: How has the Supreme Court’s use of judicial

review in conjunction with life tenure led to debates about the legitimacy

of the court?

Supreme Court and lower court rulings can have considerable consequences

for Americans. When those consequences are undesired, critics of courts

express reasons to question its legitimacy. Life tenure, broad federal jurisdiction,

a judge’s ideology, and unfavorable decisions lead some to distrust the power
of the courts.

Common Law and Precedent

Courts follow a judicial tradition begun centuries ago in England. Common

law refers to the body of court decisions that make up part of the law. Court

rulings often establish a precedent—a ruling that firmly establishes a legal

principle. These precedents are generally followed later as subordinate courts

must and other courts will consider following. The concept of stare decisis, or

“let the decision stand,” governs common law.

Lower courts must follow higher court rulings. Following precedent

establishes continuity and consistency in law. Therefore, when a U.S. district

court receives a case that parallels an already decided case from the circuit

level, the district court is obliged to rule the same way, a practice called binding

precedent. Even an independent-minded judge who disagrees with the higher

court’s precedent knows an appeal of a uniquely different decision, based in

similar circumstances, will likely be overruled by the court above. That’s why

all courts in the land are bound by U.S. Supreme Court decisions.

Judges also rely on persuasive precedent. That is, they can consider past

decisions made in other district courts or far away circuit courts as a guiding

basis for a decision. Precedents can of course be overturned. No two cases

are absolutely identical, which is precisely why judges make decisions on a

188 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

case-by-case basis. Also, attitudes and interpretations differ and evolve over

time in different courts.

Supreme Court Precedents Establish Policy

he Supreme Court’s authority of binding precedent combined with its power

of judicial review (see Topic 2.8) has given it a strong hand in establishing

national policy. Early on, it addressed national supremacy and states’ rights.

Later, it defined the relationship between government and industry. Most

recently, the Court’s historic impact has shaped individual rights and liberties.

Source: Library of Congress

The Supreme Court is

the only federal court

named in Article III of

the Constitution, yet it

did not operate in its

own building—shown

here in a drawing before

it was built—until 1935.

Defining Federalism The Supreme Court in its fledgling years was a

nondescript institution held in low esteem. President Washington appointed

Federalist John Jay as the first chief justice. At first, the Court operated in a

second-floor room in a New York building and convened for only a two-hour

session. Several early justices didn’t stay on the Court long. Jay resigned in 1795

after only six years.

he Court’s reputation and role would soon change. Once President John

Adams appointed Federalist John Marshall as chief justice, the Court began

to assert itself under a strong, influential leader. Marshall, a Federalist and

Father of the Supreme Court, remained on the Court from 1801 until his

death in 1835. He helped created a united court that spoke with one voice.

Marshall insisted that this brotherhood of justices agree and unite in their

rulings to shape national law. In virtually every important case during his

time, that one voice was Judge Marshall’s. “He left the Court,” Chief Justice

William Rehnquist wrote years later, “a genuinely coequal branch of a tripartite

national government . . . the final arbiter of the meaning of the United States

Constitution.” He fortified the Union and federal powers with rulings that

strengthened national supremacy and Congress’s commerce power.

During Marshall’s tenure, the McCulloch v. Maryland (1819) and Gibbons v.

Ogden (1824) rulings empowered Congress to create a bank and strengthened

its power to regulate interstate commerce. With the Marbury v. Madison (1803)

decision, the Court struck down part of the Judiciary Act and thereby exercised

judicial review.

LEGITIMACY OF THE JUDICIAL BRANCH

189

Continuity and Change Over Time

he Supreme Court is known more for continuity than for change. Membership

is small, and justices serve long tenures. The Court’s customs are established

through consensus and remain constant over generations. The contemporary

group operates in many ways as earlier Supreme Courts did.

he combination of the lifetime tenure of justices and the Court’s exercise

of judicial review has given rise to debates over the legitimacy of the Supreme

Court. Some people believe, as Anti-Federalist Brutus expressed more than

200 years ago, that with no power to hold them accountable, the justices on

the Supreme Court are too separated from the real sources of power—the

people and the legislature—to be legitimate arbiters of democratic law. Brutus

believed the Supreme Court justices would “be placed in a situation altogether

unprecedented in a free country—totally independent. No errors they may

commit can be corrected by any power above them, if any such power there

be, nor can they be removed from office for making ever so many erroneous

adjudications.”

Furthermore, the composition of the Court changes as seats become

vacant, and the presidential appointments to fill them can lead to shifts in the

ideology of the Court. These changes can result in the overturning of some

precedents, calling into question the reliability and therefore legitimacy of

Supreme Court decisions. Controversial and unpopular decisions can face a

number of challenges.

CURRENT SUPREME COURT JUSTICES

Current Justices

Clarence Thomas

Ruth Bader Ginsburg

Stephen Breyer

President

President’s

Party

G.H.W. Bush Republican

Clinton

Clinton

John Roberts, Chief Justice G.W. Bush

Samuel Alito

Sonia Sotomayor

Elena Kagan

Neil Gorsuch

G.W. Bush

Democrat

Democrat

Senate

vote

52–48

Prior Job

DC Circuit

96–3

87–9

Republican
Republican

Obama

Obama

Trump

Brett Kavanaugh

Trump

Overturning Precedent

Democrat

Democrat

Republican

Republican

78–22

58–42

68–31

63–37

54–45

50–48

DC Circuit

First Circuit

DC Circuit

Third Circuit

Second Circuit

Solicitor

General

Tenth Circuit

DC Circuit

Precedent plays an important role in judicial decision-making. Rulings

by higher courts bind lower courts to the same ruling. However, in 1932

Justice Brandeis wrote in a dissenting opinion in Burnet v. Coronado Oil &

190 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

Gas Co., “Stare decisis is usually the wise policy, because in most matters it

is more important that the applicable law be settled than it be settled right.”

This was especially true about rulings related to legislation, he argued,

because errors in the Court’s decision could be corrected by Congress.

However, on matters related to the application of the Constitution, which

the legislature has no power to change, Brandeis noted that the Court has

often reconsidered and overturned its own previous ruling if an earlier one

was made in error.

Consider the precedents set in two important cases: Plessy v. Ferguson

(1896) that enabled states to provide separate schools for students based on

race, and the later Brown v. Board of Education (1954) ruling that reversed

the same principle. (See Topic 3.11 for more on both cases.) Of course, a half

century had passed and race and education were viewed differently at those

two points.

More telling examples of the Court’s willingness to overturn precedent

are seen in cases dealing with suffrage. The Court had ruled in 1935 in

Grovey v. Townsend that the Democratic Party of Texas, as a private, voluntary

organization, could determine its own membership rules. Even if those rules

banned African Americans from voting in the primary, as the Constitution

didn’t apply to this non-government institution. In the 1944 case of Smith v.

Allwright, Lonnie E. Smith brought suit with a similar argument about his

Fifteenth Amendment voting rights. The Court ruled in his favor and furthered

the discussion of stare decisis versus overturning a precedent. “In reaching this

conclusion, we are not unmindful of the desirability of continuity of decision

in constitutional questions. However, when convinced of former error, this

Court has never felt constrained to follow precedent. . . . Grovey v. Townsend

is overruled.”

Why the dramatic shift in only nine years? By 1944, different justices
occupied the seats on the Court, and, amid World War II, views changed on

democracy, fairness, and equality.

THINK AS A POLITICAL SCIENTIST: DESCRIBE POLITICAL PRINCIPLES IN

DIFFERENT SCENARIOS

Political principles are foundational concepts or ideas of government. Political

scientists examine political principles in different scenarios to try to understand

them as fully as possible. For example, one key principle of the judicial branch

is to establish precedent, and the strength of the Supreme Court comes from

this power. Stare decisis, or following precedent, is what binds lower courts to

similar rulings. However, in different contexts, precedent may have different

value. At times, a superior court can overturn precedent if it believes errors

exist in previous decisions.

Practice: Read the scenarios on the next page and complete the tasks that follow.

LEGITIMACY OF THE JUDICIAL BRANCH

191

Martin v. Hunter’s Lessee (1816). Denny Martin, a British subject, had inherited land

from his Loyalist uncle during the Revolutionary War. Virginia law stated property

could be taken from Loyalists. The state seized the land, and Martin sued based on

a federal treaty that had promised land returned to Loyalists after the war. Virginia’s

Supreme Court upheld the confiscation of land. Relying on the Constitution—Article III,

Section 2, the supremacy clause—the Supreme Court reversed the decision and gave

Martin’s land back based on the idea federal treaties superseded state law.

Brown v. Board of Education (1954). A group of African American students (the Brown

family was first alphabetically) sued because they had been denied access to certain

public schools based on race. The case made it to the Supreme Court, where the

Court ruled that “separate but equal” facilities are inherently unequal. The practice,

established in the Plessy v. Ferguson (1896) case, violated the equal protection clause

of the Fourteenth Amendment.

1. Explain the principle behind why the Supreme Court overturned Virginia’s ruling
in the Martin case.

2. Explain the precedent that was overturned in the Brown case.

The Supreme Court Today

When President George W. Bush replaced Chief Justice Rehnquist after his

death with John Roberts (2005), the Court’s membership had not changed for

about 12 years. President Barack Obama appointed two women, Circuit Justice

Sonia Sotomayor (2009), and U.S. Solicitor General Elena Kagan (2010).

President Trump nominated Neil Gorsuch (2017) and Brett Kavanaugh (2018)

as the Court’s newest members.

Front row, left to right: Associate

Justice Stephen G. Breyer, Associate

Justice Clarence Thomas, Chief

Justice John G. Roberts, Jr.,

Associate Justice Ruth Bader

Ginsburg, Associate Justice Samuel

A. Alito. Back row: Associate Justice

Neil M. Gorsuch, Associate Justice

Sonia Sotomayor, Associate Justice

Elena Kagan, Associate Justice Brett

M. Kavanaugh

Credit: Fred Schilling, Collection of the

Supreme Court of the United States.

Ideology The Rehnquist Court and the current Roberts Court have been

difficult to predict. The conservative and liberal wings had been balanced

by the swing votes of Justices O’Connor and Kennedy. Swing votes are those

often tie-breaking votes cast by justices whose opinions cannot always be

easily predicted. For the past decade or so, most experts have been quick to

characterize the Court as leaning conservative. However, the Court has limited

states’ use of the death penalty and upheld government’s eminent domain
192 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

authority for economic development. With Justice Kavanaugh as Kennedy’s

replacement, the direction of the Court is uncertain.

Chief Justice John Roberts has guided the Court with judicial minimalism.

“Judges and justices are servants of the law, not the other way around. Judges are

like umpires,” he said during his confirmation hearing. “Umpires don’t make rules;

they apply them . . . nobody ever went to a ball game to see the umpire.” Robert’s

operation takes fewer cases, while the conversations and conferences go longer.

He has achieved more unanimity in decisions than some previous chief justices

and has written more narrow opinions to address the questions before the Court.

Supreme Court Job Approval, by Political Party

90

80

80

Democrats

Independents

Republicans

75

70

75

76

68

% Approve

60

60

59

60

54

50
49

40

30

20

10

48

49

38

42

42

29

32

18

Source: Gallup

REFLECT ON THE ESSENTIAL QUESTION

Essential Question: How has the Supreme Court’s use of judicial review in

conjunction with life tenure led to debates about the legitimacy of the court? On

separate paper, complete a chart like the one below.

Continuity or Change of the Supreme

Court

Effect on Legitimacy of the Court

2001

KEY TERMS AND NAMES

binding precedent

persuasive precedent

precedent

2003

2005

Roberts, John
stare decisis

2007

LEGITIMACY OF THE JUDICIAL BRANCH

2009

2011

2013

2015

193

2.10

The Court in Action

“John Marshall has made his decision, now let him enforce it.”

—President Andrew Jackson, on the

Worcester v. Georgia decision, 1832

Essential Question: How have changes in the Supreme Court over time

led to debates about the legitimacy of the court?

President Jackson didn’t believe the Supreme Court had the final interpretation

on matters of national interest, as the quote above attributed to Jackson

suggests. This disagreement was not the only instance when the United States

experienced a conflict between the branches of government. These conflicts

can lead to questions about the legitimacy of the courts. Federal judges are

appointed for life, directly unaccountable to any voter. The Supreme Court is

often challenged when it renders unpopular decisions as well. Yet, it has created

a lasting legacy with precedents it has set and law that it has shaped.

An Evolving Court

Since the Marshall Court, the Supreme Court’s rulings have both caused

and reflected changes in society because of the individual justices who have

come and gone. Yet the Supreme Court has experienced more continuity than

change. The Court’s customs are established through consensus and remain

over generations.
Early Courts to the New Deal

Chief Justice Roger Taney replaced John Marshall. The Court’s operation

changed somewhat with new leadership and new members. In 1837,

Congress increased its membership to nine justices to ease the workload

and created additional circuits. It also took up questions regarding slavery

during the antebellum period. Taney and his fellow justices were determined

to protect slavery as a state’s right and upheld the congressional Fugitive

Slave Act of 1850.

In 1857, as the North and the South grew further apart, the Court decided

the Dred Scott case. The slave Dred Scott had traveled with his master into free

territory and claimed, with the help of abolitionist lawyers, that having lived

in free northern territory, he should have his freedom. Taney and the Court’s

194 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

majority shocked abolitionists with their decision and left one of the Court’s

worst legacies. The Dred Scott v. Sandford ruling held that Scott wasn’t even

a citizen and thus had no legal right to be a party in federal court, much less

the country’s top tribunal. The Court went further, stating that a slave owner’s

constitutional right to due process and property prevented government from

depriving him of that property, regardless of where he traveled. Abolitionists

and anti-slavery advocates in the territories immediately challenged the Court’s

legitimacy.

Corporations and the State

In the late 1800s, the Court examined concerns over business, trade, and

workplace regulations as the nation had experienced vast economic expansion

during the Industrial Revolution. Congress and state legislatures attempted

to address the unfair and unsafe working conditions while facing strong

resistance from business leaders who argued for more of a laissez-faire, or

minimal government regulation, approach. When pressed by corporations to

toss out worker protection laws, the Court had to decide two principles: what
the Constitution permitted government to do and which government—state or

federal—could do it.

he Court began to overturn various state health, safety, and civil rights

laws, and in so doing, it shaped social policy. It threw out a congressional act

that addressed monopolies. It also ruled Congress’s income tax statute null

and void. By the turn of the century, the Court had developed a conservative

reputation as it questioned business regulation and progressive ideas. In

Lochner v. New York (1905), the Court overturned a New York state law that

prevented bakers from working more than 10 hours per day. The law was meant

to counter the long hours required in an era before overtime pay.

During the Progressive Era, the Court made additional exceptions but

quickly returned to a conservative, strict constructionist view of business

regulation. A strict constructionist interprets the Constitution in its original

context, while a liberal constructionist interprets the Constitution as a

living document and takes into account changes and social conditions since

ratification. The Court held that Congress could not use its commerce power to

suppress child labor. The Court’s conservative viewpoint turned further to the

right, taking social policy with it, when former president William Howard Taft

became chief justice. It ruled that minimum wage law for women also violated

liberty of contract.

he New Deal and Roosevelt’s Plan During the Depression, the Court

transformed. Charles Evans Hughes replaced Taft as chief justice in 1929.

Hughes managed a mixed group with four strong conservatives, nicknamed

the “Four Horsemen,” who overturned several New Deal programs. The Court

struck down business regulations, invalidated the National Recovery Act

(1933), and ruled against New York’s minimum wage law.

After his 1936 landslide re-election, Franklin Roosevelt (FDR) responded

to the rebuffs of the conservative Court by devising a plan to “pack the Court.”

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He proposed legislation to add one justice for every justice then over the age

of 70, which would have allowed him to appoint up to six new members.

FDR claimed this would relieve the Court’s overloaded docket, but in reality

he wanted to dilute the power of the conservative majority who had been

unreceptive to his New Deal proposals. The sitting Court denied any need for

more justices. Conservatives and liberals alike believed such a plan amounted

to an attack on the Court’s independence. Members of the Senate Judiciary

Committee said, “The bill is an invasion of judicial power such as has never

before been attempted in this country.”

he Court changed ideologically, however, when one of the conservatives

took an about-face in West Coast Hotel v. Parrish (1937), which sustained a

Washington state minimum wage law. Justice Owen Roberts became “the switch

in time that saved nine,” meaning that there was no longer any need to try to

pack the Court with additional justices. After the West Coast Hotel decision,

the Court upheld every New Deal measure that had come before it. Roosevelt

pressed ahead with more legislation, including a national minimum wage that

has withstood constitutional scrutiny ever since. Winning four elections, he

was able to appoint nine new justices to the Court who were friendly to his

policies before his death in 1944.

A Court Dedicated to Individual Liberties

In the post-World War II years, the Court protected and extended individual

liberties. It delivered mixed messages on civil liberties up to this point—

holding states to First Amendment protections while allowing government

infringements in times of national security threats. For example, it upheld FDR’s

executive order that placed Japanese Americans in internment camps after the
Japanese attack in 1941. (See Topic 2.6 for more about the 1944 Korematsu v.

United States case.) After that, however, the Court followed a fairly consistent

effort to protect individual liberties and the rights of accused criminals. The

trend crested in 1973 when the Court upheld a woman’s right to an abortion in

Roe v. Wade. (See Topic 3.9.)

he Warren Court The Court extended many liberties under Chief Justice

Earl Warren after President Dwight Eisenhower appointed him in 1953. As

attorney general for California during the war, Warren oversaw the internment

of Japanese Americans, and in 1948 he was the Republican’s vice-presidential

nominee. But any expectations that Warren would act as a conservative judge

were lost soon after he took the bench.

Warren’s legacy did not please traditionalists because his Court overturned

state policies created by democratically elected legislatures. The controversial

or unpopular decisions led some people to challenge the Court’s legitimacy.

Several Warren Court decisions seemed to insult states’ political cultures and

threaten to drain state treasuries. Some argued that Earl Warren should be

impeached. The Warren Court had made unpopular decisions, but it had not

committed impeachable acts—such as taking bribes or failing to carry out the

job—so only justices’ retirements or deaths could change the Court’s makeup.

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Warren Court—Civil Rights and Civil Liberties

Brown v. Board of

Education (1954)

Mapp v. Ohio (1961)

Engle v. Vitale (1962)

Gideon v. Wainwright

(1963)

Miranda v. Arizona (1966)

Tinker v. Des Moines

Independent Community

School District (1969)

Overturned the 1896 Plessy v. Ferguson decision, stating

the “separate but equal” standard violated the Fourteenth

Amendment’s equal protection clause. (See Topic 3.11.)

Ruled that evidence illegally obtained would be

inadmissible in court. (See Topic 3.8.)

Upheld the establishment clause of the First Amendment.

Public school-sponsored prayer was unconstitutional.

(See Topic 3.2.)

The court stated that all citizens must be provided a

lawyer, even if they can’t afford one. (See Topic 3.8.)

An arrest suspect had to be formally informed of his or

her rights—sometimes called Miranda rights.

(See Topic 3.8.)

Allowed for students to participate in non-disruptive

symbolic speech in schools. (See Topic 3.3.)

Cases in bold are required Supreme Court cases for this course.

he Burger Court President Richard Nixon won the 1968 election, in

part by painting Warren’s Court as an affront to law enforcement and local

control. When Warren retired, Nixon replaced him with U.S. appeals court

justice Warren Burger. Burger by no means satisfied Nixon’s quest to instill a

conservative philosophy and largely failed in judicial leadership. While lacking

Warren’s leadership skills, Burger kept the Supreme Court on a somewhat

similar path to the one Warren had begun.

In Roe v. Wade, Burger joined six others on the Court to outlaw or modify

state anti-abortion laws as a violation of due process. With this ruling, a woman
could now obtain an abortion, unconditionally, through the first trimester

of pregnancy. He also penned a unanimous opinion to uphold lower-court

ordered school busing for racial enrollment balance.

he chief justice often couldn’t round up enough agreement to get a five

justice majority. Thus, cases went undecided while the Court took on additional

ones. The justices became overworked and took as many as 150 appeals in

a year. Supreme Court historian and former clerk Edward Lazarus refers to

Burger as “an intellectual lightweight” who had “alienated his colleagues and

even his natural allies.” By 1986, Burger had proven pretentious and chafing

to his colleagues, and he had simply become tired. At the press conference

announcing his retirement, a reporter asked him what he would miss most on

the Court. Burger stalled, sighed, and said, “Nothing.”

he Rehnquist Court At the same press conference, President Reagan

elevated Associate Justice William Rehnquist to the chief position. Based

on Rehnquist’s strict constructionist views, President Nixon had nominated

Rehnquist for the High Court. The Senate did not confirm him easily and

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197

accused him of racism, as he had recommended upholding the “separate but

equal” doctrine when clerking for a justice in the early 1950s en route to the

Brown ruling. This same controversy arose in 1986 as he accepted the chief

justice position.

Initially, Rehnquist found himself in dissent and all alone on several

cases, earning him the nickname “the Lone Ranger.” When Rehnquist took

over for Burger, however, additional strict constructionists soon joined him.

He improved the conference procedures and decreased the Court’s caseload.

All the justices, liberals and conservatives alike, welcomed the changes. In the
1990s, the Rehnquist Court upheld states’ rights to place limitations on access

to abortions and limited Congress’s commerce clause authority. In addition to

efficiency, Rehnquist had ushered in another ideological shift.

Legislating after Unfavorable Decisions

Many people believe the Supreme Court’s decision is final, but sometimes it is

not. In many precedent-setting decisions, the High Court interprets language

in the Constitution. That language can be subsequently changed through

constitutional amendments.

he passage and ratification of the obscure Eleventh Amendment, which

further defines court jurisdiction, was in response to the 1794 ruling in

Chisolm v. Georgia. Anti-Federalists and states’ rights advocates had warned

that the new federal courts might overpower the state courts, and they saw

the decision in Chisolm v. Georgia as such an encroachment. South Carolina

residents seeking to recoup war debts from Georgia’s government sued in

federal court. Georgia denied the federal court’s authority and refused to show

up. The Supreme Court ruled in Chisolm that federal courts had jurisdiction

over such cases and opened the door for additional pending suits against

other states. In response, Congress members, especially those from the states

involved in the lawsuits, proposed the Eleventh Amendment. It prohibits the

federal courts from considering certain lawsuits against states and excuses

state courts from hearing some suits against the state, if based on federal law.

he Eleventh Amendment is the only amendment to alter the judicial branch’s

jurisdiction.

However, additional amendments that addressed the substance of law

have been proposed and ratified as reactions to unfavorable Supreme Court

decisions. For example, following the Civil War, the passage of the Fourteenth

Amendment effectively overturned the Dred Scott decision by guaranteeing

citizenship to those born in the United States and requiring states to afford

their citizens “equal protection.”

Later in the 1800s, Congress passed a national tax on individual incomes.

Because the language in Article I, Section 8 is unclear on the types of taxes

Congress can create and the manner in which these are to be applied, the Court

struck down the law. However, later in the Progressive Era, enough support for

such a tax enabled Congress to propose and the states to ratify the Sixteenth

Amendment (1913) to assure this power to create the national income tax.

198 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

Amending the Constitution is the surest way to get around a Supreme Court

decision, but it is a difficult task. In recent years, movements have surfaced

to amend the document to stop abortions, to prevent same-sex marriage, and

to enable legislatures to criminalize flag burning—all attempts to overturn

unpopular Supreme Court decisions— and all failed. A more practical path

is for Congress or state legislatures to pass laws that the Supreme Court has

declared unconstitutional in a slightly different form.

Implementation Courts decide principles and order citizens or

government entities to take action or refrain from action. The executive branch

must then enforce this law. On a basic, local level, a state judge may issue a

restraining order, but the police must do any necessary restraining.

When a court orders, decrees, or enjoins (issues an injunction to) a party,

it can do so only from the courtroom. Putting a decision into effect is another

matter. Judges alone cannot implement the verdicts and opinions made in

their courts. Nine robed justices in Washington simply cannot put their

own decisions into effect. They require at least one of several other potential

governing authorities—the president, U.S. marshals, regulatory agencies,

the military, or other government agencies—to carry out their decisions.

Legislatures may have to rewrite or pass new laws or finance the enforcement

endeavor. The implementing branch, charged with putting a court’s decision

into effect, doesn’t always cooperate with or follow court orders.

When the Supreme Court makes decisions, it assesses potential enforcement

and cooperation. When John Marshall’s Court deemed that Georgia could not

regulate Cherokee Indian lands in its state because such regulation was exclusive

to the federal government, President Andrew Jackson strongly disagreed and

allegedly said, “John Marshall has made his decision, now let him enforce it.”

In the late 1950s, after the Court ruled that a Little Rock high school had to

integrate, the executive branch sent federal troops to escort the claimants into

the formerly all-white school.

THINK AS A POLITICAL SCIENTIST: COMPARE A REQUIRED SUPREME

COURT CASE TO A NON-REQUIRED SUPREME COURT CASE

Louisiana passed the Separate Car Act in 1890, which required all railroads

to have “separate but equal” accommodations for passengers based on race.

Homer Plessy, who was one-eighth African American, challenged the law.

District Court Judge John Ferguson ruled the law to be constitutional. The

Supreme Court upheld his ruling and established the policy of “separate but

equal,” which lasted for more than 50 years. The excerpt is from the majority

opinion of Justice Henry Brown.

Practice: Review the Marbury v. Madison (1803) case in Topic 2.8. Then read the

excerpt on the following page about the 1896 Plessy v. Ferguson case and complete

the tasks that follow.

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The constitutionality of this act [Separate Car Act] is attacked upon the ground

that it conflicts both with the Thirteenth Amendment of the Constitution, abolishing

slavery, and the Fourteenth Amendment, which prohibits certain restrictive

legislation on the part of the States.

That it does not conflict with the Thirteenth Amendment. . . A statute which

implies merely a legal distinction between the white and colored races — a
distinction which is founded in the color of the two races and which must always

exist so long as white men are distinguished from the other race by color — has

no tendency to destroy the legal equality of the two races, or reestablish a state of

involuntary servitude.

By the Fourteenth Amendment. . . The object of the amendment was

undoubtedly to enforce the absolute equality of the two races before the law, but,

in the nature of things, it could not have been intended to abolish distinctions

based upon color, or to enforce social, as distinguished from political, equality, or a

commingling of the two races upon terms unsatisfactory to either. Laws permitting,

and even requiring, their separation in places where they are liable to be brought

into contact do not necessarily imply the inferiority of either race to the other, and

have been generally, if not universally, recognized as within the competency of the

state legislatures in the exercise of their police power.

1. Describe the reasoning in the Plessy case that allowed “separate but equal.”

2. Explain one important similarity and one difference in the circumstances that

led to both cases.

3. Explain how the Supreme Court used judicial review in its decision in each

case.

How Cases Reach the Supreme Court

he Supreme Court is guided by Article III, congressional acts, and its own

rules. Congress is the authority on the Court’s size and funding. The Court

began creating rules in 1790 and now has 48 formal rules, as well as less formal

customs and traditions that guide the Court’s operation. The Court has both

original and appellate jurisdiction. Only in rare situations does the Supreme

Court exercise original jurisdiction and thus serve as a trial court, typically

when one state sues another over a border dispute or to settle some type of

interstate compact.

As the nation’s highest appeals court, the Supreme Court takes cases from
the 13 U.S. circuits and the 50 states. Two-thirds of appeals come through

the federal system, directly from the U.S. circuit courts, because the Supreme

Court has a more direct jurisdiction over cases originating in federal district

courts than in state trial courts.

Like the circuit courts, the Supreme Court accepts appeals each year

from among thousands filed. The petitioner files a petition for certiorari, a

brief arguing why the lower court erred. The Supreme Court reviews this to

determine if the claim is worthy and if it should grant the appeal. If an appeal is

deemed worthy, the justices add the claim to their “discuss list.” They consider

past precedents and the real impact on the petitioner and respondent. The

200 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

Supreme Court does not consider hypothetical or theoretical damages; the

claimant must show actual damage. Finally, the justices consider the wider

national and societal impact if they take and rule on the case. Once four of

the nine justices agree to accept the case, the appeal is granted. This rule of

four, a standard less than a majority, reflects courts’ commitments to claims

by minorities.

Opinions and Caseload

Chief Justice John Marshall’s legacy of unanimity has vanished. The Court comes

to a unanimous decision only about 30 to 40 percent of the time. Therefore, it

issues varying opinions on the law. Once the Court comes to a majority, the

chief justice, or the most senior justice in the majority, either writes the Court’s

opinion or assigns it to another justice in the majority. Typically, those justices

who write the majority opinion—reflecting the Court’s ruling—have expertise

on the topic or are obviously passionate about the issue. Like a statute for

Congress or an executive order for the president, a court ruling is the judicial

branch’s contribution to the nation’s law. The majority opinion sums up the

case, the Court’s decision, and its rationale.

Justices who differ from the majority can draft and issue differing opinions.
Some may agree with the majority and join that vote but have reservations about

the majority’s legal reasoning. They might write a concurring opinion. Those

who vote against the majority often write a dissenting opinion. A dissenting

opinion has no force of law and no immediate legal bearing but allows a justice

to explain his or her disagreements to send a message to the legal community

or to influence later cases. On occasion, the Court will issue a decision without

the full explanation, known as a per curiam opinion.

REFLECT ON THE ESSENTIAL QUESTION

Essential Question: How has the Supreme Court’s use of judicial review in

conjunction with life tenure led to debates about the legitimacy of the court? On

separate paper, complete a chart like the one below.

Controversial or Unpopular Decision

of the Court

Responses to the Decision

KEY TERMS AND NAMES

concurring opinion

dissenting opinion

liberal constructionist

majority opinion

petition for certiorari

rule of four

strict constructionist

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201

2.11

Checks on the Judicial Branch

“These courts will eclipse the dignity, and take away from

the respectability, of the state courts . . . and in the course

of human events it is to be expected, that they will swallow

up all the powers of the courts in the respective states.”

—Brutus No. 1, to the People of New York, 1787

Essential Question: What issues lead to debates about the legitimacy of

the Court, and how can other branches limit Supreme Court power?

The Constitution has granted the executive and legislative branches the ability

to check the power of the Court. This idea directly relates to Enlightenment

philosopher Montesquieu’s beliefs on the need for separation of powers and

the value of a system of checks and balances.

Judicial Activism vs. Judicial Restraint

Ever since the Supreme Court first exercised judicial review in Marbury, it has

reserved the right to rule on government action in violation of constitutional

principles, whether by the legislature or the executive. Judicial review has

seemingly placed the Supreme Court, as Brutus predicted, above the other

branches, making it the final arbiter on many controversies. On many topics,

as Brutus No. 1 warned, it has made the federal government supreme while

defining what states, Congress, and the president can or cannot do. On other

topics, it has restrained the federal government.

When judges strike down laws or reverses public policy, they are exercising

judicial activism. (To remember this concept, think judges acting to create the

law.) Activism can be liberal or conservative, depending on the nature of the

law or executive action that is struck down. When the Court threw out the New

York maximum-hours law in 1905 in Lochner, it acted conservatively because it

rejected an established liberal statute. In Roe v. Wade, the Court acted liberally

to remove a conservative anti-abortion policy in Texas. Courts at multiple

levels in both the state and federal systems have struck down statutes as well as

presidential, departmental, and agency decisions.

he Court’s power to strike down parts of, or entire laws, has encouraged

litigation and changes in policy. For example, gun owners and the National
Rifle Association (NRA) supported an effort to overturn a ban on handguns

in Washington, DC and got a victory in the Heller decision. (See Topics 3.5

202 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

and 3.7.) Several state attorneys general who opposed the Affordable Care Act

sued to overturn it. In a 5:4 decision, in National Federation of Independent

Business v. Sebelius (2012), the Court upheld the key element of the Affordable

Care Act, the individual federal mandate that requires all citizens to purchase

health insurance or pay a penalty. In striking down limits on when a corporation

can advertise during a campaign season, it struck down parts of Congress’s

Bipartisan Campaign Reform Act (2002) in Citizens United v. FEC (2010).

(See Topic 5.4.)

Critics of judicial activism tend to point out that, in a democracy, elected

representative legislatures should create policy. These critics advocate for

judicial restraint. Chief Justice Harlan Fiske Stone first used the term in his

1936 dissent when the majority outlawed a New Deal program. The Court

should not, say these critics, decide a dispute in that manner unless there is a

concrete injury to be relieved by the decision. Strict constructionist Antonin

Scalia once claimed, “A ‘living’ Constitution judge [is] a happy fellow who

comes home at night to his wife and says, ‘The Constitution means exactly what

I think it ought to mean!’” Justices should not declare a law unconstitutional,

strict constructionists say today, when it merely violates their own idea of what

the Constitution means in a contemporary context, but only when the law

clearly and directly contradicts the document. To do otherwise is “legislating

from the bench,” say strict constructionists. This ongoing debate about judicial

activism and restraint has coincided with discussions about the Court’s role in

shaping national policy.

Still other critics argue that judicial policymaking is ineffective as well

as undemocratic. Wise judges have a firm understanding of the Constitution

and citizens’ rights, but they don’t always study issues over time. Most judges
don’t have special expertise on matters of environmental protection, operating

schools, or other administrative matters. They don’t have the support systems

of lawmakers, such as committee staffers and researchers, to fully engage an

issue to find a solution. When courts rule, the outcome is not always practical

or manageable for those meant to implement it. Additionally, many such court

rulings are just unpopular, and with judges’ life tenures, there’s no recourse for

the citizenry.

THINK AS A POLITICAL SCIENTIST: DESCRIBE POLITICAL PRINCIPLES IN

DIFFERENT SCENARIOS

he principle of checks and balances prevents the concentration of too much

power in a single branch of government. Critics of the judicial branch point to

the concept of judicial activism as a way for that institution to gain too much

power. Judicial activism is exercised when judges overlook legal precedents

and follow their own political views in rulings. Conversely, when judges

hesitate to inject their own preferences into legal rulings unless a law is clearly

unconstitutional, they are exercising judicial restraint.

CHECKS ON THE JUDICIAL BRANCH

203

Practice: Read the cases below. Identify in each case whether the Court acted with

judicial restraint or judicial activism and explain your reasoning.

1.

Korematsu v. United States (1944). President Franklin Roosevelt signed Executive

Order 9066 soon after the Japanese attack on Pearl Harbor, requiring Japanese

Americans to relocate to internment camps for the security of the nation. Fred

Korematsu refused to obey the order and was arrested. He sued, claiming his Fifth

Amendment rights were violated. The Ninth Circuit Court affirmed his conviction.

The Supreme Court found that the executive order did not show racial

prejudice and was valid because of the necessity of protecting the nation from
attack. Justice Frankfurter concurred, “. . . martial necessity arising from the danger

of espionage and sabotage” justified the order.

2. Obergefell v. Hodges (2015). Numerous couples sued Ohio, Michigan, Kentucky,

and Tennessee over the states’ refusals to recognize same-sex marriages. The

Sixth Circuit Court of Appeals reversed lower court rulings and upheld that the

states’ position doesn’t violate the couples’ Fourteenth Amendment rights.

The Supreme Court ruled that the due process and the equal protection

clauses guarantee the right to marry as a fundamental liberty and apply to same

sex couples. States may not deny same-sex couples the same right to marry

as opposite-sex couples. Chief Justice John Roberts wrote in his dissent, “Five

lawyers have closed the debate and enacted their own vision of marriage as a

matter of constitutional law.”

Interactions with Other Branches

Congress and the president interact with the judiciary in many ways. From the

creation of various courts to the appointment of judges to implementation of a

judicial decision, the judiciary often crosses paths with the other two branches.

Despite the concern of some Anti-Federalists, the other branches of government

do have ways to limit the power of the Supreme Court. BIG IDEA The U.S.

Constitution establishes a system of checks and balances among branches of

government and allocates power between federal and state governments. This

system is based on the rule of law and the balance between majority rule and

minority rights.

Presidential Appointments and Senate Confirmation

With hundreds of judgeships in the lower courts, presidents will have a chance

to appoint judges to the federal bench over their four or eight years in office.

When a vacancy occurs, or when Congress creates a new seat on an overloaded

court, the president carefully selects a qualified judge because that person can

shape law and will likely do so until late in his or her life.

204 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

Senate’s Advice and Consent The Senate Judiciary Committee reviews

the president’s judicial appointments. Sometimes nominees appear before the

committee to answer senators’ questions about their experience or their views

on the law. Less controversial district judges are confirmed without a hearing

based largely on the recommendation of the senators from the nominee’s state.

he more controversial, polarizing Supreme Court nominees will receive

greater attention during sometimes contentious and dramatic hearings.

he quick determination of an appointee’s political philosophy has become

known as a “litmus test.” Much like quickly testing a solution for its pH in

chemistry class, someone trying to determine a judicial nominee’s ideology on

the political spectrum will ask a pointed question on a controversial issue or

look at one of the nominee’s prior opinions from a lower court. Presidents,

senators, or pundits can conduct such a “test.” The very term has a built-in

criticism, as a judge’s complex judicial philosophy should not be determined as

quickly as a black-and-white scientific measurement.

Senatorial Courtesy The Senate firmly reserves its right of advice and

consent. “In practical terms,” said George W. Bush administration attorney

Rachel Brand, “the home state senators are almost as important as—and

sometimes more important than—the president in determining who will be

nominated to a particular lower-court judgeship.” This practice of senatorial

courtesy is especially routine with district judge appointments, as districts

are entirely within a given state. When vacancies occur, senators typically

recommend judges to the White House.

Senate procedure and tradition give individual senators veto power

over nominees located within their respective states. For U.S. district court

nominations, each of the two senators receives a blue slip—a blue piece of

paper they return to the Judiciary Committee to allow the process to move
forward. To derail the process, a senator can return the slip with a negative

indication or never return it at all. The committee chair will usually not hold

a hearing on the nominee’s confirmation until both senators have consented.

his custom has encouraged presidents to consult with the home-state senators

early in the process.

All senators embrace this influence. They are the guardians and

representatives for their states. The other 98 senators tend to follow the home

state senators’ lead, especially if they are in the same party, and vote accordingly.

his custom is somewhat followed with appeals court judges as well.

Confirmation When a Supreme Court vacancy occurs, a president has a

unique opportunity to shape American jurisprudence. Of the 162 nominations to

the Supreme Court over U.S. history, 36 were not confirmed. Eleven were rejected

by a vote of the full Senate. The others were either never acted on by the Judiciary

Committee or withdrawn by the nominee or by the president. Few confirmations

brought rancor or public spectacle until the Senate rejected two of President

Nixon’s nominees. Since then, the Court’s influence on controversial topics,

intense partisanship, the public nature of the contentious confirmation process,

and contentious hearings have highlighted the divides between the parties.

CHECKS ON THE JUDICIAL BRANCH

205

BY THE NUMBERS

RECENT PRESIDENTS’ JUDICIAL APPOINTMENTS

President

Nixon (1969–1974)

Ford (1974–1977)

Carter (1977–1981)

Reagan (1981–1989)
G.H.W. Bush (1989–1993)

Clinton (1993–2001)

G.W. Bush (2001–2009)

Obama (2009–2017)

Trump (2017–2019)*

Supreme

Court

Appeals

Courts

45

12

56

78

37

62

61

49

51

District

Courts
182

52

206

292

149

306

261

268

137

*President Trump’s appointments are through the first two years of his presidency.

Source: U.S. Courts. Excludes Court of International Trade

Total

231

65

262

373

188

370

324

319

190

What do the numbers show? Which presidents appointed more judges than others? On average,

how many Supreme Court judges does a president appoint? How many lower court judges? Which

president of recent years appointed the most? How do a president’s judicial appointees impact law and

government in the United States?

Interest Groups The increasingly publicized confirmation process has

also involved interest groups. Confirmation hearings were not public until

1929. In recent years, they have become a spectacle and may include a long

list of witnesses testifying about the nominee’s qualifications. The most active
and reputable interest group to testify about judicial nominees is the American

Bar Association (ABA). Since the 1950s, this association of lawyers has been

involved in the process. They rate nominees as “highly qualified,” “qualified,”

and “not qualified.” More recently, additional groups weigh in on the process,

especially when they see their interests threatened or enhanced. Interest

groups also target a senator’s home state with ads urging voters to contact their

senators in support of or in opposition to the nominee. Indeed, interest groups

sometimes suggest or even draft questions for senators to assist them at the

confirmation hearings.

Getting “Borked” The confirmation process began to focus on ideology

during the Reagan administration. President Reagan nominated U.S. Appeals

Court Judge Robert Bork for the Supreme Court in 1987. He was an advocate

of original intent, or “originalism,” seeking to uphold the Constitution as the

framers intended. He made clear that he despised the rulings of the activist

Warren Court. When asked about his nomination, then-Senator Joe Biden,

chair of the Senate Judiciary Committee, warned the White House that

choosing Bork would likely result in a confirmation fight. Senator Edward

Kennedy drew a line in the sand at a Senate press conference. “Robert Bork’s

America,” Kennedy said, “is a land in which women would be forced into back

206 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

alley abortions, blacks would sit at segregated lunch counters, rogue police

could break down citizens’ doors in midnight raids, and schoolchildren could

not be taught evolution.” Kennedy’s warning brought attention to Judge Bork’s

extreme views that threatened to turn back a generation of civil rights and civil

liberties decisions.

Source: Wikimedia Commons

President Ronald Reagan meeting with Supreme Court nominee Robert Bork

After hearings with the committee, the full Senate, which had unanimously

confirmed Bork as an appeals court judge in 1981, rejected him by a vote of

58 to 42. The term “to bork” entered the American political lexicon, defined

more recently by the New York Times: “to destroy a judicial nominee through a

concerted attack on his character, background, and philosophy.”

Clarence Thomas In 1991, President Bush announced his replacement for

retiring Justice Thurgood Marshall, the first African American on the Court.

He nominated conservative U.S. Appeals Court judge Clarence Thomas, who,

as an African American, reflected the left’s desire for diversity and the right’s

desire for a strict constructionist.

Several concerns about Thomas’ appointment arose. Thomas was known

for very conservative views, causing liberals to take issue with his ideology.

He had served as a district appeals judge for only about a year before his

nomination, leading some to question Thomas’ experience.

hen Anita Hill, a former employee of Thomas, came forward with

accusations against him of sexual misconduct. The Judiciary Committee invited

her to testify. In a highly televised carnival atmosphere, Hill testified for seven

hours about the harassing comments Thomas had made and the pornographic

ilms he discussed. Thomas denied all the allegations and called the hearing a

CHECKS ON THE JUDICIAL BRANCH

207

“high-tech lynching.” After a tie vote in an all-white male judiciary committee,

the full Senate barely confirmed Thomas.

“The Nuclear Option” During George W. Bush’s first term, Democrats

did not allow a vote on 10 of the 52 appeals court nominees that had cleared

the Judiciary Committee. Conservative nominees were delayed by Senate

procedure. The Democrats, in the minority at the time, invoked the right to

ilibuster votes on judges. One Bush nominee waited four years.

Bush declared in his State of the Union message, “Every judicial nominee

deserves an up or down vote.” Senate Republicans threatened to change the

rules to disallow the filibuster, which could be done with a simple majority

vote. The threat to the filibuster became known as a drastic “nuclear option.”

he nuclear option was averted when a bipartisan group of senators dubbed the

“Gang of 14” joined forces to create a compromise that kept the Senate rules the

same while confirming most appointees.

Denying Garland In February 2016, Justice Antonin Scalia died.

Republican presidential candidates in the primary race agreed on one thing:

the next president should appoint Scalia’s replacement. With Democratic

President Obama in his final year on the job, Republican Senate Majority

Leader Mitch McConnell announced that the Senate would not hold a vote

on any nominee until the voters elected a new president. A month later, with

ten months remaining until a new president would be sworn in, Obama

nominated Judge Merrick Garland to replace Scalia. Garland was a judicial

selection from the DC Circuit with a unanimous “well-qualified” rating from

the ABA. Senator McConnell’s decision was strategic if unusual, and he kept

his promise to use “the nuclear option,” to the dismay of many. Vacancies on

the Supreme Court do occur, and the Court can operate temporarily with

eight members, but to ensure the vacancy for more than ten months was

unprecedented.

Constitutionally, nothing mandates a timeline on the Senate’s confirmation

process. In the end, Donald Trump won the presidency, Republicans retained

control of the Senate, and Trump nominated Tenth Circuit Judge Neil Gorsuch

within two weeks of his inauguration. The Senate confirmed Gorsuch by a vote

of 54 to 45.

Executive and Legislative Influence on the Courts’ Power

In addition to strategically choosing judicial nominees and selectively

approving them, the president and Congress interact with lower courts and

the Supreme Court in other ways. The other branches have the powers to bring

matters and crimes to court, impeach and remove judges, use the power of the

purse to affect the judiciary and judicial decisions, partially redefine courts’

jurisdiction, and implement court rulings in their own way.

The Justice Department In addition to appointing the judiciary, the The Bureaucracy

“Are you laboring under the impression that I read these

memoranda of yours? I can’t even lift them.”

—attributed to President Franklin Delano Roosevelt

to an appointed bureaucrat

Essential Question: How does the bureaucracy carry out the

responsibilities of the federal government?

The federal government provides many services, such as maintaining

interstate highways, coordinating air traffic at airports and in flight,

protecting borders, enforcing laws, and delivering mail. Congress has

passed a law and created one or more executive branch departments or

agencies to carry out these responsibilities of government. The federal

bureaucracy is the vast, hierarchical organization of executive branch

employees—close to 3 million people ranging from members of the

president’s Cabinet to accountants at the Internal Revenue Service—that

take care of the federal government’s business.

As the nation has grown, so has the government and the bureaucracy.

Federal agencies interpret, administer, and enforce the laws that Congress

has passed. These responsibilities combined with administrative or

bureaucratic discretion have created a powerful institution.

Today’s bureaucracy is a product of 200 years of increased public

expectation and increased federal responsibilities. Government

professionals assure the executive agenda and congressional mandates

are implemented and followed. The bureaucracy is involved in every

issue of the nation and provides countless services to U.S. citizens.

Structure of the Bureaucracy

he executive hierarchy is a vast structure of governing bodies headed

by professional bureaucrats. They include departments, agencies,

commissions, and a handful of private-public organizations known as

government corporations.

Cabinet Secretaries

To help manage the bureaucracy, presidents today appoint more than

2,000 upper-level management positions, deputy secretaries, and bureau

chiefs; many of these appointments require Senate confirmation. Most

218 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

of these people tend to be in the president’s party and have experience in a

relevant field of government or the private sector.

President John F. Kennedy named his brother, Robert, as the nation’s

attorney general. President Barack Obama brought with him the Chicago

superintendent of schools to serve as his secretary of education. President

Donald Trump named fellow New York financiers and Wall Street moguls to

direct economic agencies.

Federal Bureaucracy

President

Congress

Executive

Office

of the

President

Examples: Office

of Management

and Budget,
National Security

Council.

Council of

Economic Advisors

Cabinet

Departments

Examples: Defense,

State, Education,

Health and

Human Services,

Homeland Security

Independent

Executive

Agencies

Examples: Central

Intelligence Agency,

Environmental

Protection Agency,

National Aeronautics

and Space

Administration,

Social Security

Administration

Government Corporations

Independent

Regulatory

Commissions

Examples: Federal

Communications
Commission,

Nuclear Regulatory

Commission,

Federal Trade

Commission

Examples: Amtrak, Tennessee Valley Authority, Postal Service

Departments

he president oversees the executive branch through a structured system of

15 departments. Newer departments include Energy, Veterans Affairs, and

Homeland Security. Departments have been renamed and divided into multiple

departments. The largest department is by far the Department of Defense.

Each Cabinet secretary directs a department. Though different secretaries

handle different areas of jurisdictions, and surely have different pressures and

face different issues, they are all paid the same salary.

Agencies

he departments contain agencies that divide the departments’ goals and

workload. In addition to the term agency, these subunits may be referred

to as divisions, bureaus, offices, services, administrations, and boards. The

Department of Homeland Security houses the Immigration and Customs

Enforcement (ICE), the Coast Guard, and the Transportation Security

Administration (TSA). These agencies deal with protecting the country and its

citizens. There are hundreds of agencies, many of which have headquarters in

Washington, DC, as well as regional offices in large U.S. cities. The president

appoints the head of each agency, typically referred to as the “director.” Most

directors serve under a president during a four- or eight-year term. Some serve

longer terms as defined in the statute that creates the agency.

THE BUREAUCRACY
219

FEDERAL DEPARTMENTS

Department

Department of State

Department of Treasury

Department of Defense

Department of Interior

Department of Agriculture

Department of Justice

Department of Commerce

Department of Labor

Department of Veterans Affairs

Department of Health and Human Services

Department of Housing and Urban Development

Department of Transportation

Department of Energy

Department of Homeland Security

Originally

Established

1789

1789

1789

1849

1862

1870

1903

1913

1930

1953
1965

1967

1979

2002

he FBI is a law enforcement agency. Additional agencies fill the

bureaucracy—embassies and ambassadors work within the State Department

and tax collectors at the Internal Revenue Service work under the umbrella

of the Treasury Department. Independent agencies, such as the National

Aeronautics and Space Administration (NASA), are also in the executive

branch bureaucracy, but they are not connected to a department. Congress

has structured these in this way to avoid undue influence from a department.

he much more complicated independent regulatory agencies can create

policies with the enforcement of law for unique industries or jurisdictions.

(See Topic 2.13.)

Commissions and Government Corporations

Cabinet agencies and executive agencies have one head. Independent

commissions have a body (board) that consists of five to seven members.

Members of these boards and commissions have staggered terms to ensure that

a president cannot completely replace them with his own cronies. For example,

if the Federal Reserve Board was composed of members appointed by one

president, they could boost re-election chances by manipulating the interest

rate and artificially stimulating the economy as an election nears. Such an

action would make the agencies and commissions political rather than neutral.

Government corporations are a hybrid of a government agency and a

private company. These started to appear in the 1930s, and they are usually

created when the government wants to overlap with the private sector.

220 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

THINK AS A POLITICAL SCIENTIST: EXPLAIN HOW AN ARGUMENT

RELATES TO POLITICAL INSTITUTIONS AND POLICIES

An argument, or claim, is a statement that can be supported by facts or evidence.

he more evidence that can be presented, the stronger the argument. For

example, a common claim made about the bureaucracy is that it is an inefficient

and ineffective organization. The Transportation Safety Administration (TSA)

especially, as a part of the bureaucracy, has experienced considerable criticism

since its inception in 2001. The TSA safeguards air travel but has recently come

under increased scrutiny for the problems that plague its security checkpoints

at airports—weapons making it through screenings and long lines leading to

missed flights, to name a few.

Practice: Read the excerpt about the TSA, written by Remington Tonar and Ellis

Talton, business and leadership consultants and contributors to Forbes, a business

publication. Then answer the questions that follow.

In 2017, Homeland Security inspectors were able to transport facsimile firearms,

explosives and knives through TSA checkpoints an appalling 70 percent of the

time. This is not only unacceptable, but calls into question the effectiveness of the

TSA. Many experts, in fact, have long criticized the TSA as “security theater,” noting

that body scanners are largely ineffective at detecting common explosive materials.

Further, there’s been very little evidence that measures such as the liquid ban are

in any way essential or effective, and even the European Union has been trying to

eliminate liquid restrictions for years. Numerous studies have found that the TSA

has consistently mismanaged security investments and that private screeners

perform as good or better than TSA screeners.

With a nearly $8 billion annual budget, the TSA hardly seems like a good

investment, especially when 10 percent of its workforce can call in sick without

dramatically impacting efficiency or security (at least thus far). While we shouldn’t

put a price on human life, there’s also an opportunity cost that needs to be
considered. . . . There are more effective ways to deter, prevent and impede

would-be hijackers and terrorists.

1. What is the author’s main argument, or thesis, about how the TSA implements

policy?

2. What evidence does the author provide to back up that argument?

3. What biases do the authors show related to the TSA or the bureaucracy in

general?

THE BUREAUCRACY

221

Tasks Performed by the Bureaucracy

When Congress creates departments and agencies, it defines the organization’s

mission and empowers it to carry out the mission. The legislature gives the

departments broad goals, as they administer several agencies and a large

number of bureaucrats within those departments. Agencies have more specific

goals, and independent regulatory agencies have even more specialized

responsibilities in their administrative mission.

Writing and Enforcing Regulations

he legislation that creates and defines the departments and agencies often gives

wide latitude as to how bureaucrats administer the law. Though all executive

branch organizations have a degree of discretion in how they carry out the law,

the independent regulatory agencies and commissions have greater leeway and

power to shape and enforce national policies than the others.

Take, for example, the chief passage from the 1970 Clean Water Act that

charged the Environmental Protection Agency (EPA) to enforce it, “The

nation’s waters should be free of pollutants in order to protect the health of

our citizens and preserve natural habitats. Individuals or companies shall not

pollute the nation’s water. If they do, they will be fined or jailed in accordance

with the law. The EPA shall set pollution standards and shall have the authority
to make rules necessary to carry out this Act.”

Few of the 535 legislators who helped pass this act are experts in the

environmental sciences. So they delegated this authority to the EPA and keep

in contact with the agency to assure that this mission is accomplished.

Enforcement and Fines

Like a court, the regulatory agencies, commission, and boards within the

bureaucracy can impose fines or other punishments. This administrative

adjudication targets industries or companies, not individual citizens. For

example, the federal government collected civil penalties paid in connection

with the 2010 Deepwater Horizon oil spill ranging from about $400 million in

iscal year 2013 to about $160 million in fiscal year 2016.

One key aspect of enforcement is compliance monitoring, making sure

the firms and companies that are subject to industry regulations are following

those standards and provisions. (See Topic 2.14 for more on compliance

monitoring.)

Testifying Before Congress

Cabinet secretaries and agency directors are often experts in their field. For

this reason, they frequently appear before congressional committees to provide

expert testimony. For example, former FBI Director James Comey testified

before the Senate Intelligence Committee in June 2017 about matters related to

his bureau’s investigation into Russian interference in the presidential election

of 2016. In September 2017, Deputy Secretary of State John L. Sullivan testified

222 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

before the House Committee on Foreign Affairs to discuss a redesign of the

State Department. The Secretary of Veterans Affairs, the Honorable David J.

Shulkin, M.D., testified before the Senate Veterans Affairs Committee in the

same month to address the problem of suicide among veterans.

Iron Triangles and Issue Networks

Over time, congressional committees and agencies become well acquainted.

Members of Congress and their staffs work with and rely upon the expert

advice and information provided by the bureaucracy. In addition, lawmakers

and leadership in the executive branch may have worked together in the past.

At the same time, interest groups press their agendas with relevant federal

agencies. Industry can also create political action committees (PACs) to impact

policy and its success. These special interests meet with and make donations to

members of Congress as elections near. (See Topic 5.6.) They also meet with

bureaucrats during the rule-making process (see Topic 2.13) in an ongoing

effort to shape rules that affect them.

he relationship among these three entities—an agency, a congressional

committee, and an interest group—is called an iron triangle because the three

way interdependent relationships are so strong. The three points of the triangle

join forces to create policy. Iron triangles establish tight relationships that are

often collectively beneficial. Bureaucrats have an incentive to cooperate with

congressional members who fund and oversee their agencies. Committee

members have an incentive to pay attention to interest groups that can provide

policy information and reward them with PAC donations. Interest groups and

agencies generally are out to advance similar goals from the start. However, at

times iron triangles are criticized for those goals when they are exclusively for

the benefit of special interest and not for the common good.

Recently, scholars have observed the power and influence of issue networks.

Issue networks include committee staffers (often the experts and real authors of

legislation), academics, advocates, leaders of think tanks, interest groups, and/

or the media. These experts and stakeholders—sometimes at odds with one

another on matters unrelated to the issue they are addressing—collaborate to

create specific policy on one issue. The policymaking web has grown because

of so many overlapping issues, the proliferation of interest groups, and the

influence of industry. BIG IDEA Multiple actors and institutions interact to

produce and implement possible policies.

THE BUREAUCRACY

223

Iron Triangle

Congress

funding & statutory guidance

policy choices

& execution

Interest Group

input on regulations

regulatory consideration

Follow the arrows in the above graphic so you can explain how the stages of the give-and-take

process in an iron triangle relate to one other. How does the interest group benefit? How does the

congressional committee benefit? How does the bureaucracy benefit?

From Patronage to Merit

For the bureaucracy to do its job well, federal employees need to be professional,

specialized, and politically neutral. Reforms over the years have helped create

an environment in which those goals can be achieved.

The Spoils System

In the early days of the nation, the bureaucracy became a place to reward

loyal party leaders with federal jobs, a practice known as patronage. Jefferson

illed every vacancy with members of his party. As presidents of different

parties came and went, this “rotation system” continued regardless of merit

or performance of appointees. On Andrew Jackson’s Inauguration Day in

1829, job-hungry mobs pushed into the White House, aggressively seeking

patronage jobs. Congressmen began recommending fellow party members,

and senators—with advice and consent power— asserted their influence on

the process.

Presidents appointed regional and local postmasters in the many branch

offices across the nation expecting loyalty in return. This type of patronage

system, which came to be known as the spoils system, made the U.S. Post

Office one of the main agencies to run party machinery.

electoral support,

expert testimony

friendly legislation

Bureaucracy

224 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

By the end of the Civil War, the spoils system, with ample opportunities

for government corruption, was thoroughly entrenched in state and federal

politics.

Civil Service Reform

he desire for the best government rather than a government of friends and

family became a chief concern among certain groups and associations. Moral

based movements such as emancipation, temperance, and women’s suffrage

also encouraged taming or dismantling the spoils system. Reformers called for

candidate appointments based on merit, skill, and experience.

In 1870, Congress passed a law that authorized the president to create

rules and regulations for a civil service. Support for this reform gradually

faded, however, until a murder of national consequence brought attention

back to the issue. Soon after James Garfield was sworn in as president

in 1881, an eccentric named Charles Guiteau began insisting Garfield

appoint him to a political office. Garfield denied his requests. On July 2,

only three months into the president’s term, Guiteau shot Garfield twice

as he was about to board a train. Garfield lay wounded for months before

he finally died.
Garfield’s assassination brought attention to the extreme cases of patronage

and encouraged more comprehensive legislation. Congress passed the

Pendleton Civil Service Act in 1883 to prevent the constant reward to loyal

party members. The law ultimately created the merit system, which included

competitive, written exams for many job applicants. The law also created a

bipartisan Civil Service Commission to oversee the process and prevented

officials from requiring federal employees to contribute to political campaigns.

Source: Wikimedia Commons. A. Berghaus and C. Upham, published in Frank Leslie’s Illustrated
Newspaper

An engraving of President Garfield’s assassination by Charles Guiteau

THE BUREAUCRACY

225

he establishment of the civil service and an attempt by the U.S. government

during the Industrial Era (1876–1900) to regulate the economy and care for the

needy brought about the modern administrative state. The bureaucratic system

became stocked with qualified experts dedicated to their federal jobs.

In 1887, the government created its first regulatory commission, the

Interstate Commerce Commission, to enforce federal law regarding train

travel and products traveling across state lines. The Pure Food and Drug

Act (1906) brought attention to the meatpacking industry and other food

industries, and thus, agencies were created to address these concerns. The

Sixteenth Amendment (1913), which gave Congress the power to collect taxes

on income, put more money into Treasury coffers, which helped the federal

bureaucracy expand.

Improving the Effectiveness of the Bureaucracy

Efforts to make the bureaucracy a more professional and efficient institution

of the government continued into the 20th century. President Carter promised,

and delivered, reforms to the federal bureaucracy. The Civil Service Reform
Act (1978) altered how a bureaucrat is dismissed, limited preferences for

veterans in hopes of balancing the genders in federal employment and put

upper-level appointments back into the president’s hands. It also promoted

merit and performance among bureaucrats while giving the president more

power to move those not performing their jobs successfully.

he Civil Service Commission established by the Pendleton Act operated until

the 1978 reforms replaced it with the Office of Personnel Management (OPM).

he OPM runs the merit system and coordinates the federal application process

for jobs and hiring. The OPM’s goals include promoting the ideals of public service,

inding the best people for federal jobs, and preserving merit system principles.

Many of the larger, more established agencies do their own hiring.

In 1993, President Clinton announced a six-month review of the federal

government. The National Performance Review (NPR) became Clinton’s key

document in assessing the federal bureaucracy. The review was organized to

identify problems and offer solutions and ideas for government savings. The group

focused on diminishing the paperwork burden and placing more discretionary

responsibility with the agencies. The report made almost 400 recommendations

designed to cut inefficiency, put customers first, empower employees, and produce

better and less-expensive government. One report, “From Red Tape to Results,”

characterized the federal government as an industrial-era structure operating in

an information age. The bureaucracy had become so inundated with rules and

procedures that it could not perform the way Congress had intended.

226 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

REFLECT ON THE ESSENTIAL QUESTION

Essential Question: How does the bureaucracy carry out the responsibilities of the

federal government? On separate paper, complete a chart like the one below.
Bureaucratic Tasks

How Tasks are Completed

KEY TERMS AND NAMES

bureaucracy

Civil Service Commission

Civil Service Reform Act (1978)

compliance monitoring

iron triangle

issue networks

merit system

National Performance Review

Office of Personnel Management

patronage

Pendleton Civil Service Act (1883)

spoils system

Source: Getty Images

After the Affordable Care Act was passed in 2010, the Center for Consumer Information and

Insurance Oversight (CCIIO) was created to oversee and implement health insurance provisions.

What does the cartoon suggest about such bureaucratic offices and their ability to do their jobs well?

THE BUREAUCRACY

227

2.13

Discretionary and Rule-

Making Authority

“It is an inevitable defect, that bureaucrats will care more

for routine than for results.”

—A. Walter Bagehot, The English Constitution, 1867

Essential Question: How does the federal bureaucracy use delegated

discretionary authority to make and implement rules?

There are 15 executive departments functioning in the United States and

many more agencies and commissions working below those departments to

implement policy. These departments and agencies administer laws that were

created and shaped by Congress, the executive branch, and the courts. The

process starts when Congress passes the initial law to create and define the

mission and jurisdiction of the executive branch department, commission,

or board. The president appoints and often directs the heads of these

departments. He or she will issue executive orders and directives that shape

how the agencies carries out their mission. Significant agency decisions and

procedures can be contested in court. So every court opinion on an agency’s

power or the fairness of its procedures can have an impact on how the

department or agency operates.

Delegated Discretionary Authority

he constitutional basis for bureaucratic departments or agencies stems

from Congress’s authority to create and empower them. Congress also

guides and funds them. However, Congress leaves the specific regulations for

implementing the policy up to the members of the bureaucracy. They allow

delegated discretionary authority—the power to interpret legislation and

create rules—to executive departments and agencies.

Congress has granted departments, agencies, bureaus, and commissions—

staffed with experts in their field—varying degrees of discretion in developing

their own rules and regulations required to implement sometimes vague

legislation.

Sometimes the laws are so vague that it is not even clear that authority has

been delegated to an agency. In some cases, the agency can simply claim broad

authority. Interpreting the vagueness of the Clean Air Act, for example, the

228 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

Environmental Protection Agency has claimed vast authority over regulation

of greenhouse gases. The Act provides no detail of EPA authority over these

pollutants and contains no mention of greenhouse gases. Yet the EPA asserted

its discretionary authority to develop regulations.

Rule-Making Process

Bureaucratic agencies continually survey their responsibilities and periodically

create new rules and refine old ones. However, an outcry of support from the

citizenry to handle an issue or address a societal danger could cause an agency

to take action on devising new rules. New technologies also affect the way an

agency must enforce a rule, and new technologies can bring about new rules

entirely. For example, the Federal Elections Commission is in the process of

addressing Facebook and other political advertising on the Internet much as

it has addressed television advertising in the past. Occasionally, agencies with

overlapping jurisdictions might suggest or request that a related organization

craft rules to encourage efficiency or improve communication to better enforce

their common area of law.

A Transparent and Public Process

If an agency determines new rules are needed, it would closely study the issue

and the basics of the rule to some degree before seeking public response.

Agency officials meet with experts, research the problem themselves, and may

even engage industry officials, lobbyists, or citizens who might be subjects of

the proposed regulations.

he Administrative Procedures Act The bureaucratic rule-making

process has been formalized to make it fair and transparent. It is largely governed

by the Administrative Procedures Act (APA), which Congress passed in 1946.

he law guides agencies in developing their rules and procedures and assures

that those citizens and industries affected by a policy can have input into

shaping it, providing one of many access points for stakeholders to promote
their interests.

Some congressional statutes require agencies to hold rule-making hearings.

Others choose to hold public meetings to collect more information or to help

inform the stakeholders or the affected groups of the proposed rule. Some

agencies use webcasts and interactive Internet sessions to acquire more diverse

input, a procedure many regard as democratic.

Congressional Responsibility in Rule Making

How responsible is Congress once the agency is operational and how much do

they leave to the executive branch? To what extent does the process of handing

off this responsibility undermine accountability to citizen-voters’ desires on

these issues? Scholars Justin Fox and Stuart Jordan have examined the degree to

which politically elected Congress members choose to delegate authority to the

DISCRETIONARY AND RULE-MAKING AUTHORITY

229

bureaucracy. They found that for elected Congress members, three conditions

must exist for a noticeable increase of this delegation of authority.

• Politicians must have access to much more information, and more

technical information, than voters about the issue and bureaucratic

actions.

• The bureaucrats must be policy experts, highly reliable and

knowledgeable so they can support decisions presumed to be

harmful to politicians’ constituents.

• Politicians’ electoral motives must be circumscribed to their policy

motives. In other words, they care about fixing the problem more

than they care about their personal approval rating.

Scholars differ, however, on how much Congress delegates discretionary

authority to the bureaucracy and what effects this has. Politicians see pros

and cons to the level of discretionary authority they might extend. Congress

members may see a need to enact unpopular regulations, while they do not
want the blame for the particulars of that regulation. For example, they might

prefer bureaucrats to determine and administer fines to citizens for unpaid

back taxes or closing a local factory for one too many safety violations. Being

able to point to the bureaucracy for such a harsh policy might divert some

resentment at election time.

Implementing the Law

Depending on its discretionary authority, any executive branch agency may have

the power to make decisions and to take, or not take, a course of action. Congress

has given the executive branch significant authority in three ways, by (1) creating

agencies to pay subsidies to groups, such as farmers or Social Security recipients;

(2) creating a system to distribute federal dollars going to the states, such as grant

programs (see Topic 1.7); (3) and giving many federal offices the ability to devise

and enforce regulations for various industries or issues. This quasi-legislative

power enables departments and agencies to determine law. For example, the

Federal Communications Commission can identify what is indecent for televised

broadcasts and the EPA can define factory emission standards.

Due to the complexity of final rules or regulations, agencies are required to

publish information about what is being implemented. This information will

often consist of an introduction and official summary of the societal problem(s)

and the regulatory goal that justifies the rule is required. The agency must

identify its legal authority to create and enforce such a rule and publish the

regulatory text in full. All new regulations must also list an effective date. Most

inalized regulations must allow for a grace period, usually 30 days, sometimes

as long as 180, before they can go into effect. A final printing of the law is placed

in the U.S. Code of Federal Regulations. The Federal Register prints the record

of how the regulation started, how it was developed, and how it landed in its

inal form. The Code more cleanly arranges the final regulation or law.
230 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

Independent Regulatory Agencies

Independent regulatory agencies and commissions have unique charges from

Congress to enforce or regulate industry-specific law. These entities can create

industry-specific regulations and issue fines and other punishments. Some are

structured with a director and assistants, and some are headed by a board or

commission led by a chairperson, such as the Federal Elections Commission.

Members of these boards and commissions have staggered terms to ensure that

a president cannot completely replace them with his own chosen appointees.

Directors of such groups are appointed by a president but cannot be easily removed.

In fact, a president can only remove these executives if the president shows cause.

he president might recommend or work with a regulatory agency in

designing new rules but probably has less influence on them than other

departments and agencies. He would certainly have less influence on the

implementation and enforcement of such rules.

EXAMPLES OF DISCRETIONARY AUTHORITY IN

SELECT DEPARTMENTS AND AGENCIES

Homeland Security

Transportation

Veterans Affairs

Education

Environmental Protection

Agency

Federal Election

Commission

Allowing certain exemptions for immigrants

Determining which highway projects get special grants

Deciding how to administer a health program for veterans

Cancelling or lowering student debt

Intervening in state environmental issues

Administering and enforcing federal campaign finance

laws

Securities and Exchange

Commission

Determining if financial firms should be disqualified from

raising money because of illegal conduct

Perhaps more familiar are the rules established by the Transportation

Security Administration, the agency in the Department of Homeland Security

that monitors passengers boarding airplanes. Who will be searched and how?

hese procedures change from time to time as the government finds new

reasons to ban certain items from flights or to soften an overly strict list. The

chief lawmaking body, Congress, with its complex lawmaking procedures and

necessary debates, cannot keep up with the day-to-day changes in policies and

procedures so it entrusts the TSA to monitor the airlines and empowers it to

make rules to keep passengers safe.

he powers delegated to these regulatory agencies can change over time.

he powers of the Federal Election Commission have been under fire recently.

he authority of the FEC has been in question since the Citizens United v.

FEC (2010) and McCutcheon v. FEC (2014) decisions opened up campaign

contributions. Many argue that the agency still has the rule-making power to

DISCRETIONARY AND RULE-MAKING AUTHORITY

231

tighten up the regulations on campaign finance even after the Court’s decisions,
but weak leadership has stymied any efforts. Additionally, the 2019 resignation

of another member of the Commission has left the agency short of the required

four-person quorum. Until a new appointee is approved, the Federal Election

Commission cannot perform some important functions, such as issuing fines

for violations, conducting audits, or initiating investigations.

THINK AS A POLITICAL SCIENTIST: DESCRIBE POLITICAL INSTITUTIONS

IN CONTEXT

he bureaucracy is an institution that is often considered the fourth branch

of government. It has grown to become a very large and vital part of the

government, yet the word “bureaucracy” doesn’t appear in the Constitution.

he ability for Congress to create bureaucratic agencies comes from Article I

of the Constitution. Congress delegates the authority to these agencies to make

and implement rules and policy.

Practice: Read the mission statements of these bureaucratic agencies found on their

websites and answer the questions that follow.

Department of Transportation (1966): Ensure our nation has the safest, most efficient

and modern transportation system in the world; that improves the quality of life for all

American people and communities, from rural to urban, and increases the productivity

and competitiveness of American workers and businesses.

Department of Veterans Affairs (1989): To fulfill President Lincoln’s promise “To care

for him who shall have borne the battle, and for his widow, and his orphan” by serving

and honoring the men and women who are America’s Veterans.

Environmental Protection Agency (1970): The mission of EPA is to protect human

health and the environment.

Federal Election Commission (1974): The Federal Election Commission (FEC) is the

independent regulatory agency charged with administering and enforcing the federal

campaign finance law. The FEC has jurisdiction over the financing of campaigns for
the U.S. House, Senate, Presidency and the Vice Presidency.

1. Based on the mission statements, explain which of the bureaucratic agencies

would seem to wield the most rule-making authority.

2. According to the Administrative Procedures Act, the public has the opportunity

to give input in creating bureaucratic regulations. What historical context might

have prompted public interest in the creation of these regulations?

232 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

233 DISCRETIONARY AND RULE-MAKING AUTHORITY

REFLECT ON THE ESSENTIAL QUESTION

Essential Question: How does the federal bureaucracy use delegated discretionary

authority to make and implement rules? On separate paper, complete a chart like the

one below.

Name of the Department,

Agency, or Commission

Authority Delegated to the Body

KEY TERMS AND NAMES

Administrative Procedures Act (1946)

Code of Federal Regulations

Department of Education

delegated discretionary authority

Department of Homeland Security

Department of Transportation

Environmental Protection Agency

Federal Election Commission

Federal Register

independent regulatory agencies

notice-and-comment opportunity

Department of Veterans Affairs

Securities and Exchange Commission

2.14

Holding the Bureaucracy

Accountable

“Government organizations are especially risk averse because

they are caught up in a web of constraints so complex that any

change is likely to rouse the ire of some important constituency.”

—James Q. Wilson, What Government Agencies

Do and Why They Do It, 1990

Essential Question: How is the bureaucracy held accountable by

congressional oversight and by the president in carrying out goals of the

administration?

Congress can legislate federal agencies into existence when they see a need.

he legislative branch can also define the organization’s role and sets the budget

for federal departments. The president is tasked with appointing a leader and

ensuring the organization executes its responsibilities. Bureaucratic agencies

have to answer to both the executive and legislative branches, a requirement

which should lead to an efficiently functioning federal bureaucracy. However,

the oversight, or supervision, of two branches, especially during a time of divided

government, can cause inefficiency in the bureaucracy. The bureaucracy can, at

times, struggle to effectively handle their responsibilities. Nonetheless, despite

the popular perception that the bureaucracy is an incompetent, oversized

system, most federal functions are completed in an efficient manner through

the bureaucracy.

Accountability for the Bureaucracy

Determining who is ultimately responsible for any bureaucratic decision is not

always clear. Congress creates the big-picture laws and some of the regulations.

he president shapes the departments and agencies when appointing Cabinet

secretaries and agency directors who have discretionary authority. Challenges

to department directives and agency rulings come in the courts, which may

uphold or overrule the executive branch body while interest groups and

industry try to influence regulations and their enforcement. With so many

players interacting with these executive branch sub-units, it is difficult to tell to

whom the bureaus, administrations, and offices are beholden.

234 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

Also, in trying to follow prescribed law, these executive branch bodies still

face political constraints and challenges despite their discretionary latitude.

Cabinet secretaries serve at the pleasure of the president but have to please

many people, including, to some degree, their subordinates and staff in the

ield carrying out the law. These secretaries and their employees report to

Congress and thus must please legislative members, especially when it comes

to funding.

Congressional Oversight

he bureaucracy’s discretion in rule-making authority raises many questions.

Does it violate the separation of powers doctrine? How democratic is it for a

handful of un-elected experts to create rules that entire industries must follow?

Is due process followed when an agency fines an individual or company for

violating a policy that no elected representative voted for and on which no

American court ruled?

Committee Hearings

Congress has a responsibility to assure that the agencies and departments

charged with carrying out the law are in fact doing so and doing so fairly.

Congressional oversight is essentially a check and balance on the agencies

themselves and competes with the president for influence over them. With

some regularity, House and Senate committees hold oversight hearings to

address agency action, inaction, or their relationship with the agency.

he list of standing House and Senate committees parallels a list of

notable agencies. For example, the House Committee on Homeland Security

has jurisdiction over the department with the same name. The Senate

Committee on Agriculture, Nutrition, and Forestry oversees the National

Parks Service, which is part of the Department of the Interior. Committees and

subcommittees receive reports from directors and call the directors to testify.

Cabinet secretaries, agency directors, and other ranking bureaucrats testify

before the relevant committee. Sometimes these are routine and collegial

encounters that allow for the agency or department to update Congress on

how it is doing, what goals it has accomplished, or what plans it may have. At

other times, the committee with oversight jurisdiction will call a hearing to get

to the bottom of a thorny issue.

HOLDING THE BUREAUCRACY ACCOUNTABLE

235

Source: Wikimedia Commons

Nuclear Regulatory

Commission (NRC) Chair

Allison Macfarlane, far

left, and (left to right)

Commissioners Kristine

Svinicki, William Magwood

and William Ostendorf appear

before the joint House Energy

and Commerce subcommittees

on July 24, 2012, to answer

questions ranging from

commission voting procedures

to various aspects of safe

disposal of nuclear waste.

Power of the Purse

In addition to general oversight, Congress determines how much funding these

organizations receive, asks top-level bureaucrats how they can improve their

goals, and sometimes tries to constrain agencies. With the power of the purse,

Congress can determine the financial state of an agency and its success when

it allocates money. The agency cannot spend public funds until a committee or

subcommittee first passes authorization of spending measures. These measures

state the maximum amount the agency can spend on certain programs. The

distribution of money defined in such an authorization may be a one-time

allotment of funds, or it could be a recurring annual allotment. The agency

will not receive the actual funds until each house’s appropriations committee

and the full chamber also approve the spending. These appropriations—funds

set aside for a certain purpose—are typically made annually as part of the

federal budget.

THINK AS A POLITICAL SCIENTIST: EXPLAIN TRENDS IN DATA TO DRAW

CONCLUSIONS

Bureaucratic agencies are accountable to the executive branch and legislative

branch to carry out their responsibilities. Congress appropriates funds to

all the bureaucratic agencies, and by so doing exercises oversight power. If

agencies aren’t functioning in acceptable ways, Congress can (and the president

can propose) lower budgetary allowances. Additionally, Congress and the

president can propose to increase an agency’s budget in order to meet new

or unexpected occurrences. For these reasons, the spending of bureaucratic

agencies is carefully monitored. The graph on the next page shows the changing

budget for the Environmental Protection Agency (EPA) over a 40-year period.

236 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

Practice: Use information in the graph to complete the tasks below.

EPA’s Budgetary Authority

FY 1977-FY 2016 and 2017 estimated; FY 2018 proposed

$16

$14

$12

Billions of Dollars

$10

$8

$6

$4

$2

Adjusted for Inflation (FY 2009=$1)

Nominal Dollars

Proposed,

FY 2018

$0

1977 1981 1985 1989 1993 1997 2001 2005 2009 2013 2017

Source: The Environmental Data & Governance Initiative

estimate

1. What conclusions can you draw about environmental concerns from the spikes

in the EPA’s budget in the late 1970s and again around 2010?

2. Regarding the budget for the EPA in the 1980s, what conclusion can you draw

from the trend of that decade?

The President and the Bureaucracy

Departments and agencies must compete with others for funding and for the

president’s ear. Similar departments and agencies have overlapping goals. They

all contend that with more money they could better complete their missions.

At the same time, the president exerts authority and influence to make sure

their executive ideology is delivered in policy. Through the regulatory review

process, administered through the Office of Information and Regulatory

Affairs (OIRA), all regulations that have a significant effect on the economy,

public health, and other major aspects of policy undergo close review. Any

regulations that conflict with the president’s agenda may be questioned,

revised, and even eliminated. This office is part of the Office of Management

and Budget, which prepares the president’s annual budget proposal and reviews

the budget and programs of the executive departments.

In 2017, during the Trump administration, the Federal Communications

Commission rolled back the regulations covering oversight of Internet providers,

often referred to as “net neutrality.” This rollback lifted regulations from the

Obama administration that required cable and telecommunications companies to

treat all web traffic equally. The deregulation followed part of President Trump’s

ideology—as in other areas, he called for the government to reduce regulation on

business so that businesses could grow and prosper in a freer marketplace.

HOLDING THE BUREAUCRACY ACCOUNTABLE

237

Policy Goals and Streamlining The bureaucracy can be either an

impediment or a vehicle for fulfilling presidential goals. When the bureaucracy

works against or impedes the administration’s ideas and goals, presidents are

encouraged to shake up or restructure the system. Presidents have used both

their formal powers, such as the power to appoint officials, and their informal

powers, such as executive orders and persuasion, to make the bureaucracy

work for their executive agenda.

Presidents have also tried to curb bureaucratic waste. President Ronald

Reagan, who arrived in Washington in 1981, stated in his inaugural address,

“Government is not the solution to our problem; government is the problem.”

To gain greater control over departments and agencies, he put people who

agreed with the Reagan agenda into top positions. He sought officials who

would show loyalty to the White House and reduce administrative personnel.
Policy Challenges

One key aspect of enforcement for government agencies is compliance

monitoring, making sure the firms and companies that are subject to industry

regulations are following those standards and provisions. The Environmental

Protection Agency, for example, monitors for compliance in several ways. It

assesses and documents compliance, requiring permits for certain activities.

It collects measurable scientific evidence by taking water or air samples near

a factory to measure the amount of pollutants or emissions coming from the

factory. After an EPA decision or ruling, the agency checks whether those

subject to the ruling are following it. Officials and regulators of the EPA also

go back to the rule writers about the successes or failures of the rules and

procedures to either assure fairness in future rules or to tighten them up.

REFLECT ON THE ESSENTIAL QUESTION

Essential Question: How is the bureaucracy held accountable by congressional

oversight and by the president in carrying out goals of the administration? On

separate paper, complete a chart like the one below.

Congressional Oversight

of Executive Agencies

Presidential Oversight of Executive

Agencies to Ensure Policy Goals

KEY TERMS AND NAMES

appropriations

authorization of spending

compliance monitoring

congressional oversight

Office of Information and Regulatory Affairs

(OIRA)

power of the purse

238 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

2.15

Policy and the Branches

of Government

“An efficient bureaucracy is the greatest threat to liberty.”

—Eugene McCarthy, 1979

Essential Question: To what extent do the branches of government

hold the bureaucracy accountable, given the competing interests of

Congress, the president, and the federal courts?

“The only thing that saves us from the bureaucracy is inefficiency,” Senator

Eugene McCarthy (D-MN) continued his statement from above suggesting that

if they operated more efficiently, bureaucratic agencies would end up wielding

too much power. The branches have to rein in the bureaucracy to maintain

accountability, while still attempting to fulfill their responsibilities.

Competing Interests

he federal bureaucracy is enormous, and its day-to-day functions involve

thousands of people among hundreds of agencies. Keeping the “fourth branch”

working properly and with accountability takes a concerted effort from the

other branches.

Congress and the Final Say

Congress and regulatory agencies share a good deal of authority. This

sharing has created an unclear area of jurisdiction. One procedure that has

developed to sort out any overlap is committee clearance. Some congressional

committees have secured the authority to review and approve certain agency

actions in advance. Few executive branch leaders will ignore the actions the

congressional committee requests, knowing the same committee determines

its funding.

Congress established the legislative veto in the 1930s to control executive

agencies. The legislative veto is a requirement that certain agency decisions

must wait for a defined period of either 30 or 90 days. During the conflict in

Vietnam, for example, Congress used the legislative veto to put some limits

on the deployment of military activity. But the public interest groups that had

fought to create regulatory agencies in the 1960s watched agencies’ lawful

decisions being stopped by one or the other house of Congress.

POLICY AND THE BRANCHES OF GOVERNMENT 239

So when the opportunity arose for a case challenging the constitutionality

of the legislative veto, Public Citizen, a group advocating for citizen protections

and the separation of powers, used its litigation services to eventually bring

it before the Supreme Court. The case centered on Jagdish Chadha, born in

British-controlled Kenya, who immigrated to the United States in the 1960s

to study. When his U.S. visa expired, neither Britain nor Kenya, which had

gained independence from Britain in 1963, would accept him, so he applied for

permanent residency in the United States. The Immigration and Naturalization

Service (INS) approved his application. Two years later, the House rejected it

through a legislative veto.

Chadha sued to retain his U.S. residency. Chadha’s fight to remain in the

United States became a power play between the president and Congress over the

constitutionality of the legislative veto. In INS v. Chadha (1983), the Supreme

Court sided with Chadha and against Congress’s use of this procedure. The

veto was intended only for the president, not the legislative branch. The Court

stated that when the House rejected Chadha’s application, it exercised a judicial

function by expressing its opinion on the application of a law, something

reserved for the courts. The Court ruled against Congress’s use of the legislative

veto as a violation of separation of powers.

CONGRESSIONAL ACTS AND THE BUREAUCRACY

• Freedom of Information Act (1966): Gives the public the right to request access to

records or information

• Sunshine Act (1976): Requires most federal agencies to hold their meetings in
publicly accessible places

• Whistleblower Protection Act (1989): Protects federal workers who report or

disclose evidence of illegal or improper government action

Competition in the Executive Branch

he different beliefs or approaches of executive departments can create

friction between them when the United States must state a position or make

a decision. The Departments of State and Defense, for example, have had

differences on foreign policy. The Department of State is the diplomatic wing

of the government; the Department of Defense trains the military and prepares

the country for armed conflict. These differing perspectives can make the

development of coherent goals challenging.

Law enforcement agencies sometimes cooperate to find criminals, but they

are also protective of their methods and desire recognition for their success

in a way that breeds dissension across agencies. The lack of information

sharing among the government’s many intelligence organizations before the

September 11, 2001, terrorist attacks likely increased the terrorists’ chances of

a successful and unexpected attack.

Sometimes upper-level bureaucrats get caught between their boss and the

many people who work for them. The president’s policy goals may not take into

account some of the practical constraints of the bureaucracy and as a result

240 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

may be too difficult to achieve. An appointed bureaucrat may therefore “go

native” by siding with his or her own department or agency instead of with

the president. Going native is a risky proposition, and many who have publicly

disagreed with the president have been replaced.

Federal employees sometimes see corruption or inefficiency in their

offices but are tempted to keep quiet. Exposing illegal or improper government

activities can lead to reprisals from those in the organization or retaliation

that can lead to their termination. However, citizens in a democracy want

transparency in government and often encourage such exposure. That is why

Congress passed the Whistleblower Protection Act in 1989, which prohibits a

federal agency from retaliating or threatening an employee for disclosing acts

that he or she believes were illegal or dishonest.

THINK AS A POLITICAL SCIENTIST: EXPLAIN WHAT THE DATA IMPLIES

ABOUT POLITICAL PROCESSES

he size of the federal bureaucracy could allow for inefficiency or even

corruption. To protect individuals who are willing to expose such problems and

create a more transparent process, the government passed the Whistleblower

Protection Act. To protect against problems in the Veterans Administration

specifically, the Office of Accountability and Whistleblower Protection (OAWP)

was formed. OAWP was created by executive order in 2017.

Practice: Analyze the graphic below and answer the questions that follow.

Complaints fielded by the VA Office of

Accountability and Whistleblower Protection

Source: U.S. Dept of Veteran's Affairs.

1% Gross waste of funds

1% Substantial and specific

danger to public health

2% Substantial and specific

danger to safety

4% Gross Mismanagement

6% Abuse of authority

20% Violation of any law,

rule or regulation

22% Whistleblower retaliation

44% Not a whistleblower

disclosure

1. What do the data imply about the complaints that the Office of Accountability

and Whistleblower Protection receives?

2. What inferences can you make about either the Veterans Administration (VA) or

the Office of Accountability and Whistleblower Protection based on the data in

the graphic?

3. What additional information in the graphic would help make inferences in

question 2?

POLICY AND THE BRANCHES OF GOVERNMENT

241

The Courts and the Bureaucracy

Bureaucratic agencies interact with courts in a variety of ways. The

implementation of some rules can result in a prosecution of an offender in

a criminal trial. Agency fines and punishments can be appealed in federal

court. And the U.S. Supreme Court has shaped how Congress can interact with

agencies and has generally empowered the agencies with wider latitude to enact

their missions—some would say at the expense of democratically developed

policy and the rights of industry.

Courts and Accountability The courts are involved when citizens

challenge federal bureaucratic decisions. Because agency actions are not always

constitutional, fair, or practical, individuals have the right of due process and

review of the law. This judicial review, writes one scholar, serves as a “check

on lawlessness, a check on administrative agents making choices based on

convenient personal or political preferences without substantial concern for

matters of inconvenient principle.”

U.S. Circuit Courts of Appeals Most judicial hearings challenging

agency decisions and regulatory punishments are looking for a complicated

interpretation of a law, its application, or its constitutionality. These are

concerns for appeals courts.

For example, when Justin Timberlake accidentally exposed Janet Jackson’s

breast during the 2004 Super Bowl halftime show on a live CBS television

broadcast, the Federal Communications Commission took action because of

concerns that broadcast decency rules had been violated. The FCC punished

Viacom, the CBS parent company, the standard fine for indecency of this type,

$27,500, multiplied by the number of affiliates that broadcast the Super Bowl

halftime show. It added up to $550,000. The network’s lawyers challenged the

ruling in the Third Circuit Court of Appeals. The federal court overruled the

FCC and sided with CBS-Viacom.

he Supreme Court simply doesn’t take many cases when appealed from the

circuit courts, so the Courts of Appeals have largely become the final arbiter of

agency decisions. These court decisions, and most of the rare cases the Supreme

Court hears, tend to uphold the idea that unless agency discretion is blatantly

unlawful or abusive, deference should go to the agency. The fundamental

support for this approach is that the people’s branch—Congress—has enabled

the agency and that the bureaucrats making the decisions are experts in the in

the field. And when federal courts examine these disputes, they focus

more on the decision-making procedures than the substance of the rules

or decisions.

Trends in Bureaucratic Authority Appeals courts are more likely to

protect and uphold independent commission’s decisions than general executive

branch department and agency decisions. One study found that lower federal

courts uphold the commission’s decisions and punishments about 76 percent

of the time. Another found the Supreme Court upheld challenges to these

executive branch decisions 91 percent of the time.

242 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

When Congress bestows power on an entity it creates but has perhaps

failed to explicitly define scenarios or rulings that the agency might make, the
Court recommends erring on the side of the bureaucracy. The preeminent case

that governs this approach is Chevron v. National Resources Defense Council

(NRDC), decided in 1984. The case pitted Chevron Oil against an environmental

protection group. But the real question was to what degree an agency can set

industry standards when the law governing that power is incomplete or vague.

he Clean Air Act of 1970 required states to create permit programs for

any new or modified plants that might affect air pollution. The EPA passed

a regulation that grouped these plants into a geographic bubble-area for

pollution measurement, creating the possibility that some plants would not

need a permit if the modification would not affect their overall impact on the

defined bubble. The NRDC challenged the EPA procedure in order to protect

the air. The District of Columbia Circuit Court of Appeals set aside the EPA

regulation, and Chevron appealed.

he Supreme Court overruled the DC Circuit Court and established the

Chevron doctrine under which courts are supposed to defer to agencies when

laws defining their responsibilities are vague or ambiguous. Under the Chevron

concept, called the Chevron deference, agencies can not only determine what

the law is, but they can also change that interpretation at any time

executive branch enters the federal courts to enforce criminal law and to

weigh in on legal questions. The president’s Department of Justice, headed

208 UNITED STATES GOVERNMENT & POLITICS: AP® EDITION

by the attorney general, investigates federal crimes with the Federal Bureau

of Investigation (FBI) or the Drug Enforcement Administration (DEA),

and U.S. attorneys prosecute the accused criminals. These attorneys are

also the legal authority for federal civil law on a more local basis. When a

party sues the federal government, U.S. attorneys defend the United States.

In appealed criminal cases, these attorneys present the oral arguments in

the circuit courts.

Another high-ranking figure in the Department of Justice is the solicitor

general, who works in the Washington, DC office. Appointed by the president

and approved by the Senate, the solicitor general determines which cases to

appeal to the U.S. Supreme Court and represents the United States in Supreme

Court cases. When you see a Supreme Court case entitled the “United States v.

John Doe,” it means that the United States lost in one of the circuit courts and

the solicitor general sought an appeal.

he solicitor general may also submit an amicus curiae brief (friend of

the court brief) to the Supreme Court in cases in which the United States is

not a party. An amicus brief argues for a particular ruling in the case. Several

solicitors general have later been appointed to the High Court, notably Stanley

Reed, Thurgood Marshall, and Elena Kagan.

Impeachment Federal judges who act criminally or perhaps unethically

can be impeached and removed. In 1804, John Pickering, a Federalist, became

the first judge to be impeached. Pickering refused to resign, so the House

impeached him, and the Senate convicted him on the charges of drunkenness

and unlawful rulings.

Almost immediately after Pickering’s impeachment, Thomas Jefferson’s

party, the Democratic-Republicans, moved to impeach Supreme Court Justice

Samuel Chase to weaken the Federalist presence on the Court. However,

Jefferson wanted to avoid making the impeachment process a political tool

to rid the third branch of opponents, so he withdrew his support, and Chase

survived the Senate vote. Impeachment has served as Congress’s check on the

judges’ life terms, and the House has impeached 15 federal judges.

Congressional Oversight and Influence Congress sets and pays judges’

salaries. Congress budgets for the construction and maintenance of federal

courthouses. It has passed an entire body of law that helps govern the judiciary.
T

his includes regulations about courtroom procedures to judicial recusal—

judges withdrawing from a case if they have a conflict of interest. Occasionally

Congress creates new seats in the 94 district courts and on the 13 appeals

courts. Congress has more than doubled the number of circuit and district

judges over the last 50 years.

Defining Jurisdiction

Article III includes the power to consider all cases arising under the Constitution,

federal law or treaty, and admiralty or maritime jurisdiction. It also addresses the

CHECKS ON THE JUDICIAL BRANCH

209

types of cases that the judicial branch and specifically the “Supreme Court shall

have . . . under such Regulations as the Congress shall make.”

Since the initial Judiciary Act of 1789, Congress has periodically defined

and reshaped the courts’ jurisdiction. The most convenient and unquestioned

power involves the legislature’s power to define what types of cases are heard

by which federal courts and which types of cases are left to the state courts.

Article III also empowers Congress to define the types of parties that can go to

the various courts, thereby defining standing, the requirements for bringing a

case to court. Congress cannot create state courts, but it can endow them with

concurrent power to hear certain cases concerning federal law.

Congress occasionally delves into “court-stripping,” or jurisdiction

stripping, when it wants to limit the judicial branch’s power in hearing cases

on particular topics. For example, in the 108th Congress of 2003–2005, in an

effort to protect the Pledge of Allegiance, which was under fire for its “under

God” phrase, the House voted to take away the courts’ power to hear such

cases. It also voted to deny funds in order to implement any such decisions.

T he same House voted to prevent federal courts from hearing cases regarding

the Defense of Marriage Act. Conservative representatives were reacting to

court filings, lower federal court decisions, and the coming strategy of using

the courts to legalize same-sex marriage. The Senate failed to vote for the law,

and thus courts have ruled on these matters.