Distinctiveness of the American Bureaucracy
political authority over
bureaucracy is shared among several institutions
both Congress and the
president have authority over the bureaucracy
federal agencies share
functions with local and state agencies
institutions contribute to “adversary culture” (defense of rights)
United States government
regulates private enterprises, but not the economy
The Growth of Bureaucracy
not specifically addressed
by the Constitution
department members “to be
removable by the president”
Congress nonetheless has
some control of bureaucracy
government in Washington was
at first miniscule
The Appointment of Officials
appointment one of the most
difficult tasks of the president
Congress often controlled
appointment - patronage
patronage insures subordinates are basically supportive of presidential policy
1816-1861- number of federal
jobs increased eightfold
Civil War a watershed in
bureaucratic development
industrialization, economic
development, administrative weakness
A Service Role
1861-1901- deal with sectors
of society and economy to serve, not regulate
strong Constitutional
values, laissez-faire economy
Congress cannot regulate
everything on a day-to-day basis
restrictions on bureaucracy
are set aside during war time
after the wars, the number
of civilian employees rose sharply
all bureaucracy claims to be
related to the war effort
A Change in Role
result of depression and
World War II (changes in Constitutional interpretation)
World War II- federal income
tax usage
The Federal Bureaucracy Today
many work indirectly for
Washington
power of bureaucracy depends
upon discretionary authority
substantial authority has
been granted by Congress
paying subsidies to
organizations in society
transferring money from
federal to state and local
devising and enforcing
regulations for various sectors of society
behavior determined by four
factors
manner of recruiting and
reward
personal attributes-
socioeconomic background, political attitudes
nature of their jobs
constraints imposed by
outside agencies
Recruitment and Retention
competitive service (2/3 of all officials)
written exam by Office of Personnel Management, or
other criteria
expected service (1/3)- qualifications approved by OPM
less than 3% have special
qualifications
presidential appointments
authorized by stature
Schedule C jobs- confidential or policy-determining
noncareer executive assignments- high ranking, involved in policy making
1883 Pendleton Act- required merit selection (outrage over spoils)
by increasing merit, current
employees were “blanketed in”
The Buddy System- name-request- create a job
for a specific person
Firing a bureaucrat- hard to
do, other methods developed
Civil Service Reform Act of 1978- Senior
Executive Service
easier to hire and fire
individuals, but not very successful
The Agency’s Point of View
most officials have been so
for most of their life
consistent agency behavior
ability of discreet sabotage
(since hard to fire)
Personal Attributes
social class, education,
personal political beliefs
more liberal than the
average American, but less liberal than the media
those in “activist” agencies
are most liberal
views reflect the type of
work done
Do Bureaucrats Sabotage
Their Political Bosses
difficult to fire
bureaucrats, so they get away with a lot
most bureaucrats try to
carry out policies of their superiors
tend to be loyal to
superiors, cooperatively and constructively
Whistleblower Protection Act of 1989
protect those who report
waste and abuse in agencies
different “roles”- attitudes
have more effect in loosely structured roles
lawyers measure value by how
easily the case is won
economists measure value by
how much a case is worth
Culture and Careers
jobs very clearly spelled
out
“career enhancing”- part of culture; NCE- not part of culture
strong culture motivates
employees to work hard
Constraints
many procedures set in law
“fair proportion” of
contracts to small businesses
Administrative Procedure Act 1966
must give notice of plans,
hold hearings, etc.
Freedom of Information Act 1966
citizens have the right to
inspect government records
National Environmental Protection Act 1969
must issue an environmental
impact statement before instituting major action
Privacy Act 1974
Social security, tax
records, etc. must be kept confidential
Open Meeting Law 1976
Agency meetings must be open
to the public
Congress rarely gives any
jobs to a single agency
effects of constraints
government acts slowly (more
constraints -> takes longer)
government acts
inconsistently
easier to block action than
to take action
lower employees are
reluctant to make decisions of their own
citizens complain of red tape
Why So Many Constraints
rules and concerns come from
the people
give something up for
something we want more (sacrifice to reach the goal)
Agency Allies
constraints build a useful
relationship
iron triangle- agency, committee, interest group
organizations in the private
sector
sometimes allies are
stronger than the president
iron triangles much less
common today
agencies face many competing
groups
issue networks- interest groups, congressional staff, think tanks, media
Congressional Oversight
authorization legislation
funds cannot be spent unless
appropriated
The Appropriations Committee
and Legislative Committees
agencies serve several
Congressional masters
“marking up” an agency’s
proposal gives influence over agency policy
recent loss of power
trust funds- pays for benefits (instead of Congress)
annual authorizations- new limits every year
deficits-> worry about
spending limit instead of appropriations
committee clearance- pass on agency decisions
not legally binding but few
agency heads ignore such decisions
The Legislative Veto
requirement that executive
decision must lie for a period of time before effective
Chadha case in 1983 declared
the legislative veto unconstitutional
has been used since then
anyhow
Congressional Investigations
inferred from the power to
legislate, upheld by the Supreme Court
president and principal
subordinates can claim “executive
privilege”
ensures bureaucratic
discretion, as well as freedom from control
Bureaucratic “Pathologies”
difficult to speak of
bureaucracy “in general”
problems with bureaucracy
red tape- complex rules and procedures
conflict- agencies working at cross purposes
duplication- two agencies doing the same thing
imperialism- agencies grow without regard to benefits or costs
waste-
spending more than necessary (biggest complaint)
“problems” are in the nature
of government
red tape- insures that different departments are in synch
conflict- congressmen have inconsistent goals
imperialism- agencies seek very vague goals
waste-
no incentives to keep costs down
most results are unusual occurrences
red tape insures that the most different interests will be served
to remedy some of the
problems would only make others worse
The Development of the Federal Courts
founders expected judicial
review, but not the power of federal courts
judicial activism / application of existing law
judiciary the “least
dangerous” branch of government
presently, there are high
levels of activism and influence
National Supremacy and
Slavery
Marbury v. Madison /
McCulloch v. Maryland - national law is dominant
control commerce to an
extent and review state decisions
Jackson- “Marshall has made
his decision; now let him enforce it!”
Dred Scott- Negroes not
citizens, prohibiting slavery is unconstitutional
Government and the Economy
under what circumstances can
the government regulate the economy
property / regulation of
enterprises
activism established in the
late 1800s
court’s desire to protect
private property
authorize various kinds of
regulation
reasonable vs. Unreasonable
blacks given only very
limited benefits of decisions
Government and Political
Liberty
after 1936, economic
regulation was generally permissible
Roosevelt proposal- one new
justice for each over age of 72 who wouldn’t retire
“court-packing” bill failed, but was no longer useful or necessary
The Structure of the Federal Courts
Constitution only creates
the Supreme Court with no specific number of justices
Constitutional court- judicial powers found in Article III
district courts- 94- at least one per state
court of appeals- one in each of eleven regions, and one in DC
legislative court- set up by Congress for some special purpose
Selecting Judges- nominated by president,
confirmed by Senate
party background has some
effect, though ideology does not determine behavior
facts, precedent and
arguments determine decisions
justices do not always act
as presidents expect
Senatorial Courtesy- listen to views of the Senators from the state of the nominee
The “Litmus Test”- get justice department to scrutinize candidates
-reflects party and ideology
The Jurisdiction of the Federal Courts
Federal courts- all
questions under Constitution, US laws, treaties
some cases can be either
state or federal
state court cases can be
appeals to Supreme Court [sometimes]
federal criminal law ->
federal district court
federal appeals -> courts
of appeal
most federal cases begin in
federal district courts
writ of certiorari- Supreme Court doesn’t have to hear appeals it doesn’t want to
hears appeals if four
justices agree
usually hears cases of
significant federal or constitutional question
if two courts decide the
same issue in different ways
if involving a law thought
to be unconstitutional
of 5000 petitions, accepts
200 cases
due to multiple federal
courts, laws are interpreted differently in different places
Getting to Court
all parties are
theoretically equal
high costs for court fees,
etc.
in forma pauperis- request for case to be free
interest groups may take the
case if it is important
interest groups and those on
consumer behalf organize cases
Fee Shifting- plaintiff collects for costs if the defendant loses
Standing- entitlement to bring a case
actual controversy between
real adversaries
someone must have been
harmed (by what is addressed in the complaint)
cannot challenge government
actions just for being a taxpayer
sovereign immunity- cannot
sue government without its consent
recently, these rules have
been relaxed
Class Action Suits- brought on behalf of all in similar circumstance
example: Brown v. Board of Education
more stringent rules for
class-action suits
getting into court at all
requires both standing and resources
The Supreme Court in Action
briefs-
set forth facts, summarize lower court decisions, make arguments, discuss
related cases
solicitor general- top lawyer of the federal government; at Supreme Court often
amicus curiae- “friend of the court”- interested party, but not involved in the case
Harvard Law Review and Yale
Law Journal are frequently consulted
on Friday, the Supreme Court
justices debate and vote
Supreme Court usually issues
a written opinion as well as a decision
opinion of the court- majority
concurring- agree with the majority, but different reasoning
dissenting- on the losing side
Voting Patterns of the Court
justices differ with respect
to civil liberties and economic issues
blocs of voting patterns
(though not totally clear)
The liberal bloc- Brennan
and Marshall
voted together 94%, and against the conservatives 2/3 of the time
The conservative bloc-
Rehnquist, O’Connor, Scalia, Kennedy
voted on the same side over 80%
The swing bloc- Blackmun,
Stevens, White
Blackmun liberal ~70%, White conservative over 70%, Stevens in middle
justices have strong views,
but too many factors to predict their decisions