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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