American History / Structure Of American And California Governments
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Autor: anton 04 December 2010
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The United States of America is one of the most powerful nation-states in the world today. The framers of the American Constitution spent a great deal of time and effort into making sure this power wasnâ€™t too centralized in one aspect of the government. They created three branches of government to help maintain a checks and balance system. In this paper I will discuss these three branches, the legislative, the executive, and the judicial, for both the state and federal level.
The legislative branch of America helps create the laws or legislation. Ideally, it works to create a society that is safe for all members. The State of California like the federal government has a bicameral legislature, in other words, composed of two chambers. The upper chamber is called the senate, while the lower is called the assembly. A unique process for the state level is that it allows for the initiative. This process circumvents the state congress and can create laws without their aide. In the state of California, every ten years, following a US census, which collects demographic information, state legislators draw redistricting plans for itself, California seats in the US House of Representatives, and the State Board of Equalization. There have been attempts to create a â€œnon-partisanâ€ redistricting commission, but this has been turned down by voters numerous times. Proposition 14, 39, 118, and 119 were all turned down by voters to create a non-partisan districting commission. Every decade a large portion of the state congressâ€™s energy is spent on redistricting. In fact, two of the last four censuses, Supreme Court has had to step in to break a deadlock. In 1970, Ronald Reagan, a Republican, vetoed all together the Democratic redistricting plan. The Supreme Court had to step in and created its own plans for California to follow. Then in 1981, Democrats proposed redistricting as well as congressional delegation redistricting. The Republicans stopped this by adding referendums to the state ballot. Because it was too close to elections though, Supreme Court overturned these referendums in 1982. In 1984, they officially passed the new redistricting plan which was very similar to the original plans.
In 1990, Governor Pete Wilson, a Republican, could not agree with a predominantly Democratic state legislature. The United States Supreme Court again had to step in and make independent plans. They created a system that moved two assembly districts into each senate district, otherwise known as a â€œnestedâ€ system.
The Republicans tried again to create a commission through Proposition 26. But this prop was turned down by the Supreme Court as it did not adhere to the single subject rule. It talked about both creating a districting commission and lowering legislature salaries. A lot of this desire to create a districting commission stems from the fear of the Democrats creating a partisan gerrymander, a division of districts that is unlawful and unrepresentative of the demographics. Already Democrats win less than 55% of the vote, but hold 60% of the congress seats. These results are in a large part due to districting.
To understand the power of the Democratic Party in California it is also essential to understand the basic building blocks of the state legislative process. Senate has 40 members, half of which will be in the election since they serve staggered 4 year terms. A staggered senate allows for half of the senators to be up for trial, therefore minimizing special interest bills, because the senators are not in office as long. Assembly members serve 2 year terms and currently there are 80 members. While senators serve a maximum of two terms, the assembly members serve a maximum three terms. These term limits set by Proposition 140, which not only set the limits, but also limited retirement benefits and how much could be spent to operate the state legislature.
The speaker in the assembly is the presiding officer. An important figure to change the structure of this position was Jesse Marvin Unruh. Elected in 1961, he brought the speakerâ€™s position to be almost as powerful as the governors. Then in 1980, another figure emerged, William Lewis Brown, Jr. He served the longest tenure in California history, from 1980 till 1995. The Speaker is powerful due to three reasons. First, the legislature was becoming more professional due to the passage of Proposition 1A in 1966. This proposition boosted pay, and provided long term benefits to legislators. The speaker thus controlled this activity and appointed a large part of the staff. Second, the united majority and minority parties helped to make Californiaâ€™s political system very polarized. This helped the speaker since he had party support behind him. Thirdly, due to the rising campaign costs, speakers could raise large amounts of money and could then share this money with other members, thus creating loyal members. Proposition 34 put limits on how much contribution could come from another member, but then again, the speaker may always sway an outside organizationâ€™s will to donate to a member.
The speaker now has power for a short time due to term limits, but they can still can do an array of tasks while in office. The speaker can appoint members to all standing committees except the Rules Committee; they can only appoint five of the eight members there. He can appoint the chairs for all committees. He can even change committee assignments even for just a day to push or fight a bill.
Senate on the other side of the spectrum has a lieutenant governor as a president. This position doesnâ€™t have nearly as much power as the speaker does. The lieutenant only votes in case of a tie, and usually doesnâ€™t even appear for senate proceedings. The more important position in the senate is the president pro tempore (tem). He acts as the active president. He chairs his Rules Committee with five members, three from the majority party and two from the minority party. The Rules Committee of the Senate then appoints all other committee members and chairs.
Together these two organizations can create state legislation. Before it can become a law, a bill is proposed in one chamber. It is given to a specific standing committee, or permanent committee, that has to do with the said subject matter. A bill may be presented straight to the floor of one chamber but only after it has been given a full inspection in the other chamber. If passed by both chambers, but in different forms, a resolution must be found. If one cannot be found, a resolutions committee is created for the bill. This committee works out a compromise and then re-issues it to both chambers for a new vote. If accepted, it is then sent to the governor. The governor may veto the bill, and then it would require two-thirds of all votes in each chamber to be enacted. Bill then becomes a law Jan 1st of the next year. A bill in California may pass immediately if it has an urgency clause and is approved by two-thirds of the vote in each chamber. In the federal level though, laws become laws immediately or when the bill states so. Also, California needs a majority of all members of congress, while the US Congress only requires the votes of those present. Also, in California, the author of a bill follows it all the way through its legislative process, while at the federal level an entire committee of party leaders is in charge. In California, the governor can veto certain lines, but at the federal level cannot because of a Supreme Court ruling in 1996 during Bill Clintonâ€™s administration.
California didnâ€™t always follow partisan voting though. In the 1950â€™s, there was a clear bi-partisan agreement under Republican rule. Cross-filling allowed member to win both partiesâ€™ primaries. In 1952, voters approved a referendum that made them state their party affiliation and by 1959, cross-filling was over with. Then in 1960, Supreme Court ruled for a â€œone person, one vote,â€ mandate. This allowed for metropolitan areas of large democrats to win a proportionate strength in the state congress.
At the federal level, the US Congress is the first branch of the US government under Article I of the US Constitution. It was designed to be the strongest institution, a legislative government. But through the years, power has waned, giving more power to the executive branch.
Today, legislators receive inputs from various sources, including but not limited to, other congressional leaders, special legislative task forces, the president, national chairs of the two major parties, public interest lobbyists, the news media, and the mass public. All of these and more affect the voting attitudes of congress members.
The policy-making process is a very complex order, sometimes almost a miracle that a bill can even pass. In order for Congress to be a worthy institution, it must develop a division of labor, set an agenda, maintain order through rules and procedures, and place limits to discussion. Also equality of members should give way to seniority of ranking people.
Like the state, the US Congress is bicameral also. It has a senate and a House of Representatives. Each chamber serves separate constituencies and was originally elected by state legislators for six year terms. The framers had anticipated the congress members to represent property more than the people, but today, because of the 17th amendment, itâ€™s the people who elect the members of congress. 435 members of the House are voted by districts apportioned by population. 100 members of the senate are elected by each state. Senators serve longer terms than house members and serve more diverse population; senators serve six year terms, while house members serve two year terms. Also, there are no term limits for congress members. The house initiates all money bills while the senate confirms Supreme Court justices, ambassadors, heads of the executive departments, and treaties.
The house members normally vote more partisan due to the fact that they represent a smaller constituency. Since they want to be re-elected, they at times will be loyal to their constituency rather than the overall good of the nation. Senate members vote more bi-partisan due to the fact their constituency is diverse and spread out. Also, because the senate members are in office longer, they are able to spend more time formulation new legislation and following it through.
Article I defines each chamber a presiding officer. The senate has a president seat. This is held by the vice president of the United States. He then elects a president pro tempore. The House of Representatives has a speaker which is elected by the house itself. Every two years the two parties meet to choose their party leaders. This is called a caucus by democrats and a conference by the republicans. The elected leader of the majority party is proposed to the House and is automatically elected speaker of the house. Both parties also elect whips who line up members on a partyâ€™s side. They take polls before a bill is presented for a vote to learn the attitudes of various members. This allows party leaders to see if they need to sway a vote or if the bill will pass favorably in the House. Underneath the whips are the House chairs. Then the Committee on Committees (democrats call this the Steering and Policy Committee). Their job is to rearrange incumbents if the incumbents wish to be transferred and to assign new members to committee seats. The Speaker of the House is also the chair of the Committee on Committees. The minority party leader sits on the opposite committee, such as the Steering and Policy Committee.
The majority leader usually picks a member with highest seniority to serve as the senateâ€™s pro tempore. As like with the House, the two parties choose their leaders, whips and chairs. One of the biggest rights of a party leader is the ability to set the agenda.
Congress was slightly restructured in 1994, when the Republican Party created the Contract with America, which cut congress spending and put committee hearings in the public eye. This somewhat was in the favor of congress members. They raised their powers by using the media to catch attention to a certain subject or use the Political Action Committee to raise contributions for select members. Because voters elect the members, the leaders have little legislative power over their chamber.
There are also six characteristics of the congressional committee system. First, each standing committee is given official rules that are recognized by all other committees and leaders. Second, the jurisdiction of each permanent committee is defined according to the subject matter. The House Rules Committee decides which bills will be presented and in what order. Third, the committees usually parallel the executive branch jurisdictions. Fourth, the subject matter of the bill dictates where the bill will go. The Speaker of the House and the senate president have some discretion in this matter. Fifth, each committee is unique and it is not necessary to have a committee be representative of the House or senate. Members also do not have fixed terms on committees; they may stay as long as they are in congress. Sixth, the seniority is based on the length of time a member has been a part of a particular committee. Chairs schedule hearings, select sub-committee members, and appoint committee staff.
Underneath the committee system is the staff system. Each member of congress is able to staff their own members. These members carry most of the burden of actually formulating and writing proposals, organizing hearings, dealing with administrative agencies, and negotiating with lobbyists.
Congress also hires its own staff and this staff stays regardless of congress turnover. Approximately 2000 employees are staffed by congress. They are responsible for organizing and administering the committees work, including research, scheduling, organizing hearings, and drafting legislation. An example of the staffâ€™s importance is the Gephardt Health Care Reform Bill of 1994, largely created by Gephardtâ€™s staff. The staff listened to lobbyists and in turn created this bill after long research. This bill created cost control, service delivery, and defined the role of the insurance industry and the needs of patients.
Aside from the general staff, Congress employs three separate staff agencies. First is the Congressional Research Service. They are responsible for providing in-depth research on a particular policy to legislators. Second is the General Accounting Office which gives administrative and financial information for any government agency of program. Third is the congressional budget office which researches the effects of any proposed federal program to our economy.
The makings of a bill are slightly different for the Senate and the House. In the House, a bill is passed through a committee and if passed will go the House of Rules Committee. The Rules Committee will then decide if the bill will be open ruled or closed rule. Open ruled will allow significant amount of leeway for amending the bill. It will also allow for more time for debates which may stop the bill from ever becoming law. A powerful tool for the House leader is the power to recognize. During a debate a leader has the choice to allow a member to speak by recognizing him. In the House, the time allotted is scheduled by the billâ€™s sponsor and the billâ€™s opponent. By tradition and rule, these two members will control who will speak and for how long. The priority is given of course to those who serve on related committees.
In the Senate, the only power the leadership has is recognition. Once recognized, a member may speak as long as he/she wants, which is called a filibuster. A filibuster can be ended using a cloture, which requires three-fifths of the senateâ€™s votes, 60. This came about due to the Filibuster Reform of 1975. Prior to then, it required two-thirds of the votes to end a filibuster. The filibuster was used frequently during the 50â€™s and the 60â€™s to stop civil rights bills. The filibuster is another reason why the senate is much more bi-partisan than the House. If different bills are presented, a Conference Committee is created to work out the differences. The Conference Committee is headed by the senior members of each chamberâ€™s related committee. Once a compromise is met and the bill is approved through a congress vote, it is sent to the president. The president has the ability to veto the bill within ten days. If he does, congress must gather two-thirds of the votes in each chamber to overcome the veto. If congress adjourns and the president does not come up with a decision, the bill is automatically vetoed, called a pocket veto. Normally though, if no action is taken in ten days and Congress is still in session, the bill is automatically approved. In the past, Congress has pushed bills the president was knowingly going to veto to hurt the presidentâ€™s image.
Although a memberâ€™s own constituency will affect their voting attitudes, interest groups may also have a large role. In the past, lobbyists have started â€œAstroturf lobbying,â€ to garner support for a bill. This is a grassroots campaign to show a congress member the constituencyâ€™s support.
Party discipline also plays a large role. This is basically voting along your party lines. Typically a roll call vote, where all members are called by their alphabetical name and asked for their vote, will create a party vote. A party vote is where more than 50% of one partyâ€™s vote leans on one side and more than 50% of the opposite party leans on the other side.
Logrolling is another system of gathering votes for a particular bill. This is an agreement between two members to exchange votes on two bills of their choosing.
A presidentâ€™s will is also considered as it will affect national image of the white house and of course creates a smoother relationship between the two branches of government.
Congress has many balancing powers. One of these powers is the ability of oversight. They can oversee the executive branchâ€™s action on a bill. They can change funding for a program or agency and essentially stop an agency they donâ€™t like by not funding it. They can hold hearings on a specific matter or an investigation on a larger problem.
They also are required for the presidentâ€™s action on a treaty. Without two-thirds of the approval of congress, a treaty cannot be signed. The president may use executive agreement though, but this will be discussed later in the paper.
The president can appoint top executive officials, ambassadors, and Supreme Court judges, but only with the Senateâ€™s approval. Sometimes this has been used to force the president to adhere to senateâ€™s desires.
The Constitution also grants congress the ability to impeach members of the executive, with a charge of treason, bribery, or other high crime and misdemeanor. More common understanding of what a high crime is the president can be impeached for what the House of Representative seems to be grounds of impeachment. Only two presidents have been impeached, Andrew Johnson and Bill Clinton.
Patronage is another power granted to members of congress. They use bills to help their constituents, sometimes called pork barreling. If the bill has added lines to help constituents, then it is called an earmark. Another form of patronage is the private bill. These bills will aide a particular individual.
The framers of the constitution tried to pit congress against the president but for a long time the balance favored congress. The war of 1817 and the civil war were congressâ€™s doing. Johnson was impeached because he tried to overstep his boundaries and meddle with congress affairs. The New Deal changed all of this and shifted balance to the president, which turned legislative government into presidential government. This also will be discussed further in the paper.
The legislative branch has much power still to decide on the legislation of the nation and state. Moving on in the checks and balance system is the executive branch, both state and federal.
California has plural executives, meaning most positions are elected by people and not dependent on the governor. In CA there are a dozen elected executives: the governor, the lieutenant governor, the attorney general, the treasurer, the controller, and the Board of Equalization which consists of the controller and four other members. Each is elected on a non-presidential year for a four year term, two term maximum. Proposition 140 was the proposition that limited terms for executive officials. Governors have an upper hand because they deal with inexperienced legislators, although the public may perceive governors as lame ducks if theyâ€™re in their second term, since they will soon be out of office. Californiaâ€™s governorâ€™s power to appoint and remove is limited by the plural executive and the few state officials who head their own departments. Also the governor cannot appoint or remove civil service employees which most state employees are. He also cannot remove members who were appointed in the past and cannot nominate new appointees until the current has stepped down or been impeached. Governor among all of this is still a strong political figure. He nominates or appoints members of various boards of commissions, appellate courts, and state agencies. Unless otherwise stated by a county charter, he also appoints the countyâ€™s Board of Supervisors. Most trial court judges reach appoint through the gubernatorial system. Appellate court justices are not hired until approved by a commission and eventually by voters, but most are approved as incumbents.
The lieutenant governor is like a vice president. He serves as president on the state senate and he only votes if there is a tie. While the vice president of the United States has responsibilities set by the president, the Lieutenant Governor has responsibilities outside of what is given to him by the governor. He serves on a Board of Regents of the University of California, and by statute on various other boards and commissions. Vice president and the president of the US run together on the same ticket during elections. The Lieutenant governor runs on a separate ticket and is only nominated by the governor. Another difference is the president is active president even off US soil, but when a governor leaves the state, he is not active and the lieutenant governor may step in.
The Attorney General heads the California Department of Justice. He is also the chief legal officer for the state of California. He supervises the Department of Justice attorneys who serve as the prosecution during appeals. The attorneys also serve as legal representative during civil cases in which the state is involved. State and local authorities may go to the attorney general to get his opinion on legal matters and often this is enough to hold up in court, but not all the time. The Attorney General is also one of the three members who sit on the Commission on Judicial Appointments, which approve the governorâ€™s nominations to the state Supreme Court and district court of appeals.
The Secretary of Stateâ€™s primary job is to serve as the stateâ€™s chief elections officer. He/she also oversees the voter registration programs and voting systems maintained by county registrars of voters, certifies candidates, signature petitions for statewide initiatives, petition referendums, and recalls. The voter information guide is also the responsibility of the Secretary of State. After an election the results are kept with the Secretary of State. This is also a position without fixed terms, usually a career position.
The Insurance Commissioner oversees the insurance industry of California. This was an appointee office until 1988, when voters passed Proposition 103 which turned the position into an elected position.
Superintendent of Public instruction is a nonpartisan elected position, but this is still highly partisan at times, as was such the case with Senator Marian Bergeson. A democrat mainly rejected her nomination because she was republican. Superintendent heads the Department of Education and serves as a secretary and executive officer of the Board of Education. This entire board sets policies, not just the Superintendent. The board in large is appointed by the governor.
Treasurer has one of the most important positions in California. He/she is responsible for both borrowing and investing billions of dollars annually, and is also a member of Boards of Public Employee Pension Funds, the largest such funds in the world.
The Controller acts as final sign off on state payments. He/she determines if the expenditures are legal and if the state has enough money to make payments. When the state runs out of money, the controller may pay with scrips, temporary money. The controller issues regular reports on the receipts and expenditures of state and local governments, serves as chair for the Franchise Tax Board, which collects personal and corporate income taxes, and is one of the five members of the Board of Equalization.
The Board of Equalization is especially important because it is responsible for collecting various taxes and assessing if property assessment is being completed in a uniform manner. Although property taxes account for very little revenue for California, the amounts are used for calculations that formulate decisions on how much money will be dispersed to various regions of California. The Board is housed by the controller and four other members. The other four members are drawn from four districts which are drawn after each census.
The governorâ€™s staff does everything from scheduling appointments to interviewing potential candidates, to formulating foreign trade policy. The governor currently staffs eighty-six of these employees.
In 1959, Pat Brown to augment departmental structural problems, created the Organization of State Government, also called the Little Hoover Commission. This Commission created the â€œAgency Plan.â€ This plan organized departments into agencies headed by a secretary. These secretaries and other governor appointees form the governorâ€™s cabinet. Some units today operate outside the agency plan, such as the Military Department and the Office of Planning and Research. Secretaries try to implement governorâ€™s plans, but they administer programs authorized by the legislation and implement by civil servants, which can cause competing interests. Each governor tries to change this a little and Proposition 1A gave the governor more power to do this. Changes by the governor to the executive branch become law immediately except if either chamber vetoes the change.
Some Boards and commissions are created by the state constitution and are independent of the governor.
The Civil Service system promotes based on merit, not on who you know. You also donâ€™t lose your job, because a different party came into office. Bills to protect the civil service from party changes were created in 1883. This same year the Pendleton act created the federal civil service system. In 1913, California became the ninth state to adopt a civil service system and the present form was created in 1934. The civil service system is headed by the State Personnel Board. Five members for a staggered 10 year period serve on this board. They are appointed by the governor and must be approved by the senate. This covers most employees; exceptions are the University of California which maintains their own personnel system. The largest number of state employees is the CSEA, one of the most important interest groups in California. CSEA created in 1930 to push adoption of a retirement system for civil employees. SB 839, pushed by the CSEA, also allowed state workers to collective bargaining. Political appointees are not safe guarded by the CSEA as they are important figures and should be held accountable for their actions. The civil service employees could argue against political appointees as well. To overcome this, during the 1960â€™s, the Career Executive Assignment was created. Member had to be a civil servant first before becoming a member of the CEA. Like an appointee, CEA members could be removed but still had some of the benefits of the CSEA.
Certain CEA positions today are very important in state politics, such as those housed in state budget.
At the federal level the executive branch has changed a significant amount since its creation. Since the 1930â€™s the presidency has become increasingly important and powerful. People today pay more attention to the work of the president than the president himself.
Article 2, Section 1 says the executive power will be given to the president. In Section 3, executive power is defined as the president shall take care that laws be faithfully executed. Constitution defines all powers of the national government to be in congress and the executive power is the power to execute those laws. Congress though has through the years given up its own powers to the president, but the president cannot find his own ways. In fact in 1890, the case of In re Neagle, the Supreme Court said president could only use the inherent powers inferred from the constitution. So the powers cannot be expansive, but with reasonable thought can be derived from the constitution as they were used to protect Neagle from a murder charge, since he was protecting a federal judge under the presidentâ€™s executive order.
The second sentence of Article 2, Section 1, speaks about how the president is to be elected. The framers agreed on an electoral college that would make the president strong, but would still make him responsible to both the people and congress.
The president can then be defined in two different ways, head of state and head of government.
There are three powers vest in a head of state, military, judicial, and diplomatic powers. Military wise, the president is the Commander in Chief, the highest military position the US has. This is complete control of the entire military establishment. He also heads many secret intelligence agencies. Judicial wise, the president may pardon, reprieve, or provide amnesty to individuals or large groups. Diplomacy wise, the president may receive ambassadors of other nations and in turn recognize that nation state as indeed a body of government. If the nation is not recognized, no treaties or resolutions can be made with the â€œnation.â€
There have been three cases that empowered the president. In re Neagle, gave the president the ability to infer powers from the constitution. In 1936, US v. Curtiss-Write Export Corp. the Supreme Court ruled that congress could delegate a degree of discretion to the president in foreign affairs. The president was able to prosecute a company for dealing with nations the president saw as a threat. This was a power given in small amounts by congress. The third case is US v. Pink, where Supreme Court gave the president the power of the executive agreement. An executive agreement allows the president to make treaties without congressâ€™s approval. This has led to â€œwarsâ€ without congressâ€™s approval. This also led to the approval of the Soviet Union in 1933.
As head of government, the president also has three more powers, executive, military, and legislative. Executive wise, Article 2 delegates the responsibility of the president to see that all laws are faithfully executed. HE also has the power to appoint all executive officers, and all federal judges, although president appoints and senate approves. The Constitution didnâ€™t speak of the presidentâ€™s power to remove, but this was clarified by the Supreme Court in various rulings such as, Myers v. US, Humphreyâ€™s Executor V. US, Wiener v. US, Bowsher v. Synar, and Morrison v. Olson.
Military wise, the president has been given the power by congress to be chiefly responsible in protecting states from invasion or domestic violence. Article 4 says the US as a whole would be responsible, but congress passed statutes 331, 332, and 333 to redistribute power. President can enter a state with military power if he deems it necessary for protection or to fulfill federal orders. Legislative wise, the president submits recommendations to Congress, creates executive orders and has the power to veto. Franklin D. Roosevelt was the first to initiate these proposals. Since his term, the proposals have been the top priority of the legislation. The president has the power of executive orders, this is a management tool, as it allows the president to reorganize the executive branch as he sees fit. The executive orders can also be seen as legislation such as Clintonâ€™s â€œDonâ€™t ask, donâ€™t tell,â€ executive order for Gays and Lesbians in the US army.
The president has the constitutional power to veto any act passed by congress. As with state, the president has the ability to create a pocket veto, but unlike the states, cannot omit lines from a bill, he must veto the entire thing. Until 1974, the president also had the opportunity to choose not to fund a congressâ€™s agency or department, essentially ruining the effects of a bill. The Impoundment Control Act of 74â€™ made it necessary for the president to fulfill congressâ€™s legislation.
Until 1933, these powers were very small. In fact, Jackson and Lincoln were the only two notable presidents. Federalism, the separation of national and state level government, allowed state government to control most of the important matters and required little government intervention. One small change that empowered the president was the creation of the National Convention to nominate candidates for president. This took away congressâ€™s power to choose the president by allowing all states no matter their size to appropriate congressional delegates for the nomination of candidates. The bigger impact on presidential power was The Great Depression which brought about the New Deal in FDRâ€™s term. FDR was able to change from just executing law into shaping law. An important case was the National Labor Relations Board v. Jones & Laughlin Steel Corporation. The NLRB, a federal organization ordered J&L Steel to hire back the employees they had fired on grounds of union activity. This sent a strong statement to the nation. The president could step into daily lives when related to commerce. Also during the New Deal Era, congress passed many laws relating to commerce and left the amount of power to be used to be the discretion of the executive branch or independent bodies. This created the â€œdelegation of power.â€ When congress does not have the expertise to deal with a known problem, they create a basic answer and leave the details to another agency. This in turn gives those agency legislative powers. The president has powers outside direct congress control. The ability to choose high level appointees is called patronage. A president may use patronage to appoint staff that will fulfill the presidentâ€™s agenda or have strong connections to constituencies or congress members.
The cabinet is a collection of all departmental heads and is not an official body of government. The job of the cabinet is to raise party and popular support.
Presidents normally trust their White House staff more than they do the cabinet, since the cabinet might not always be loyal to the president. Cabinet members may represent personal constituencies before the presidentâ€™s wishes or try to gain loyalty of their department before giving their loyalty to the president.
The White House staff if composed mainly of analysts and advisors. How the president organizes this staff is how responsive they are to the presidentâ€™s desire of information. Unlike the Executive Office of the Presidency, typically, the White House staff deals with political advice. Tasks are performed by the larger Executive office of the president. Currently the White House staffs 1500-2000 employees to carry out certain tasks.
A very important department in the Executive Office of the president is the Office of Management and Budget. Because of 1974â€™s Budget and Impoundment Act, the OMB is a large player in formulating the presidentâ€™s budget plans with congress. The OMB actually formulates the budget for other agencies and congress.
The vice president only has two roles given by the constitution. First the vice president is to succeed the president in the case of a vacancy and second to preside over the Senate, casting the tie-breaking vote when necessary. Many times the president will team up with a vice president to bring along a state the president may have not won before. The president may give some of their management power to the vice president, but this has been a different amount for every elected president.
Another way presidents are granted power is in the way they win the elections. If the president wins by a landslide, he may have a â€œmandate,â€ which in reality is nothing more than popular opinion, to force congress to agree with the president.
The president also has the power of initiative, which means he can act almost by himself to create decisive action, where as Congress must meet and deliberate. Congress gave the president the power of legislative clearance, which enabled the president to require budget outlooks for any agency looking for legislative reform. This was created in part of the 1974 Budget Act which gave power to the OMB.
Media also empowers or sometimes strips power from the president. If used well, the president along with Congress can get popular support for legislation and overall government action. Eisenhower started the presidential press conferences and Kennedy formulated the system which we use today.
Groups also help the power of the president. Groups who receive patronage are especially loyal and will battle against the oppositionâ€™s political party. Party themselves can be considered groups. Sometimes creating partisanship can help an election, it will join party members, but at the same time can also solidify the opposition. Presidents will run in the area they seem weakest in and need the most.
Public opinion of course shapes the ability of the president to push legislation through congress. This ties into the media discussion earlier. Frequently, changes in foreign policy or international trade will have a positive effect on the popular opinion of the president; this is called the rallying effect. The rallying effect is only short lived though. All presidents try to build popular support in some shape or form and much of their energy and finances are dedicated to this sole area.
The last branch of government is the judicial branch, which deals with the interpretation of law. In the state of California there are two types of cases, the criminal and the civil. The first is the criminal, the second is the civil. A criminal case has to do with the accused and the people which is the government. In criminal cases, a felony verdict can place the accused in jail or put them to death, a misdemeanor can put an accused in jail or fine, and an infraction can only fine. In civil law, itâ€™s between two people; state can also be classified as a person. There are three levels of courts where these cases are tried, the trial court, the courts of appeal, and the Supreme Court.
There is one trial court, or superior court, for each county. The county can have anywhere from two judges to 429 as in Los Angeles, it all depends on the necessity of that county. Courts also employ subordinate judicial officers such as commissioners and referees. These people carry out the duties of the judges.
There used to be courts underneath the superior courts, these were called municipal courts. In small counties they had justice courts. These lesser courts dealt with misdemeanors, infractions, and civil cases dealing with $25,000 or less. In 1994, voters agreed to turn all justice courts in to municipal courts. Then in 1998, the voters again agreed to consolidate municipal courts into superior courts. In felony cases sufficient evidence must be present.
Sufficient evidence can be determined two ways. The first is through a grand jury. There is a grand jury in each county. Most counties appoint nineteen members, but some counties have more, some have less, some have an extra grand jury all together. In closed doors the grand jury listens to the prosecution side, if they feel enough evidence is available they issue an indictment to force the defendant to a trial. A more common way than the grand jury is the pre-trial hearing, where the evidence is presented to a judge, and the judge then issues an indictment if necessary.
In criminal cases, â€œthe people,â€ are represented by the District Attorneyâ€™s office. The District Attorney is an elected position. Defendants who cannot afford an attorney are provided one by the state. Aside form infractions and some civil proceedings, all cases have a trial by jury (petit jury, this is not the same as a grand jury). The trial will have twelve jurors unless both sides agree this number can be reduced. If a jury is not wanted all together, the judge rules in the case.
The jury system allows for a defendant to be tried by a jury of their peers. Originally this was created to protect commoners from the nobility. Today we define peers to be a make-up of the public at large. In a criminal case, the jury must find guilt to be beyond a reasonable doubt. If it cannot, then defendant is innocent. If there is a disagreement between jurors, then there is a mistrial. In a civil case, the jury finds for the plaintiff or the defendant and for how much if any.
If either side believes their rights have been violated, they may file an appeal. But because of the double jeopardy clause in the state and federal constitution, which states an accused cannot be tried a second time if found innocent the first, the prosecution cannot appeal an innocent verdict. Counties are grouped into six different appellate district courts of appeal. In criminal cases, the Office of the State Attorney General represents the prosecution. Non-profit appellate projects have been created to aide lawyers representing low-income defendants. Lawyers of each side may submit written briefs. Also interested parties may submit amicus curiae (friend of the court) briefs if both sides agree or one side and the court aggress. After briefs are submitted, a panel of three justices looks at the case. Hearing is not for looking at the facts of the trial, but to see if the manner in which the trial had gone was constitutional and correct. If a majority finds that the trial was unconstitutional, it is sent back to the original trial court for reconsideration.
Californiaâ€™s highest court is the Supreme Court. It must look at all appeal cases which have to do with the death penalty. Of choice though, the Court usually only looks at cases that raise severe questions about law or were found to have different rulings in different appellate courts. The Supreme Court has a chief justice and six associate judges. Although personal party ties do not come into play, inherent ideological differences create dissent at times when ruling.
Judicial council is an administrative body for Californiaâ€™s courts. This council is headed by the chief justice. He also appoints an Associate Supreme Court Justice, two appellate court justices, and ten superior court judges as voting members. Four members are appointed by the state bar. One is appointed by the senate and one from the assembly. The Judicial council sets rules for court proceedings and makes recommendations to the governor and to the legislation on how to improve. This council is also the authority in transferring judges and filling vacancies until an election period.
Superior court judges server six year terms. They are elected in a non-partisan election, but most are placed by gubernatorial appointment as most incumbents win elections this way anyways.
Supreme Court justices and district court of appeals justices serve twelve year terms. The governor nominates replacements in case of a vacancy and is then approved by the Commission on Judicial Appointments. This commission consists of the chief justice of the Supreme Court, a presiding justice of a District Court of Appeals, and the attorney general.
At the next election for governor, voters must choose to keep the justiceâ€™s appointees, if so they will serve the remainder of their twelve years. This is the same process to appoint incumbents for another twelve years.
Judges may be removed by impeachment or by the Commission on Judicial Performance for misconduct. Removal is mandatory for a judge committed for a felony. The Commission consists of eleven members, three appointed by the Supreme Court, two appointed by the State Bar Board of Governors, and six public (non-lawyers) members appointed by the state governor with the approval of the state senate. Until 1994, the commission had to give recommendations to the Supreme Court and was not able to do much independently. Proposition 190 changed this and also allowed for public hearings.
To have a successful justice system, you need independence and accountability. Independence is the ability of the judge to vote based on facts and along the lines of popular opinions. James Madison, in Federalist Paper No. 10, spoke of a healthy system having majority rule but safety from majority tyranny. Alexander Hamilton spoke about the checks and balances in the Federalist Paper No. 78. He said without a justice system that could check independently, the check system was worthless.
Accountability is important because justices interpret laws. They are a part of the policy-making system and in a democracy, public policy should be driven by the people.
The federal system stresses independence more, and the state because judges can be removed relatively easily, stresses accountability.
The supremacy clause of Article 6 establishes federal law over state law, such as the due process and equal protection clauses of the 14th Amendment of the US Constitution. Stats though can provide their citizens with more rights than given by the federal level. States also sometimes interpret the State constitution differently than the US Constitution, even though the words are identical. In the case of Pruneyard Shipping Center v. Robbins a group of students had gone to a shopping mall to obtain signatures for a petition. The mall asked the students to leave. The students then filed a case saying their rights to free speech were infringed upon. The shopping mall said it was private property and it would be an infringement of their free speech if they couldnâ€™t squelch the students on their premises. The state Supreme Court interpreted the 14th amendment to be included even on someone elseâ€™s private property and so the students won, although the federal constitution is not interpreted that way.
The jail system in California has become a large problem due to over crowding. Two laws that affected jail sentence times were the Determinate sentencing law and the Three-Strikes Laws. In the 70â€™s, the determinate sentencing law came into play. This reduced discrimination within corrections officers and the judiciary, but lengthened overall sentencing times by mandating 25-life for a third time felon.
In the federal level, just like in the state level, the judges are given their authority to rule by the constitution. And like the state judicial system, there is the criminal law and the civil law, but there is a third in the federal system, called the public law. Criminal law in the federal system has to do with statutes that been violated that were supposed to protect the public health, safety, morals, or welfare. The US government always acts as the plaintiff in criminal cases and will bring their charges against the defendant. The defendant, if found guilty, can go to prison or be force to pay fines. In civil law, cases have to do with individuals or individuals and the government, but donâ€™t have criminal offenses. The defendant cannot be imprisoned or fined, but may be mandated to pay some monetary payments to the plaintiff for misconduct. The court applies statutes and legal precedents during civil cases. The use of previous cases is called â€œstare decis,â€ which is Latin for let the decision stand. The third law is the public law. In public law, the US government is the defendant and the plaintiff seeks to show the government has infringed the rights of citizens in some way. An example would be where farmers used the Fifth Amendment to argue that land use regulation was an infraction of the inability of the government to confiscate private property. The federal court only has jurisdiction when the case has to do with federal laws, treaties with other nations, or the US Constitution. Although civil cases at the state level which have to do with more than one state and in which more than fifty thousand dollars is at stake, may be brought to the federal courts if the plaintiff chooses so.
Citizens may also appeal to the federal level if they feel their rights have been infringed upon at the state level. The federal courts are not obliged to listen to the appellantâ€™s case, but will do so if serious concerns are raised and it seems all other resources at the state level have been exhausted.
Lately the number of federal cases has gone up substantially due to Congress passing laws that are federal crimes, such as drug possession laws
Most original federal jurisdiction cases are handled by the federal district courts. There are eighty-nine district courts in the fifty states, one in the District of Columbia, one in Puerto Rico, and three territorial courts. In 1978 Congress increased the judgeships from 400 to 517 to deal with increased loads. Unlike the state level, the federal courts are required to have a grand jury, a twelve member trial jury, and a unanimous jury verdict.
The country is divided into twelve judicial circuits, each of which has a U.S. Court of Appeals. The cases that are not proposed by the Supreme Court have final decisions at the Court of Appeals. To safeguard this procedure, more than one judge is appointed to each case. Each court of appeals has from three to fifteen judgeships, depending on the size of the workload. The second safeguard is with the assignment of a Supreme Court Justice to each of the eleven circuits.
Article 3 states the highest court in the United States is the Supreme Court. The chief justice presides over the Courtâ€™s public sessions and conferences. He has no more authority though, he may sway the Supreme Court justices by his position, but his vote is equal to the other votes. Congress sets the number of Supreme Court justices. In 1869, Congress expanded it to nine, which is the current amount today.
The president nominates a Supreme Court Justice, and then is reviewed by the Senate Judiciary Committee and confirmed by a majority vote in the Senate. Senatorial courtesy, although not a law, provides that the state which the nominated justice comes from will automatically give the vote to that justice.
The Courts authority in matters of congress is fairly strong as well. The Supreme Court has the power of judicial review. It can review any lower court decision where a substantial issue of public law is involved. In Marbury v. Madison, Chief Justice Marshall argued that the constitution was the superior law and that Congress could not create unconstitutional legislation. It was therefore up to the Supreme Court to rule on the constitutionality of legislative acts and treaties. This made the Court a legislative body in its own right.
Judicial review also extends to state authority due to the supremacy clause which appears in Article 6. This allows the Supreme Courtâ€™s ruling and the federal law to overcome any state and local laws. This was further strengthened by the Judiciary Act of 1789.
Judicial review of original jurisdiction cases in which previous cases are used is called common law. This is important because essentially the appellate federal courts communicate two things when finding a verdict. They choose who has won, they also provide a basis for all future cases like that particular case.
The Supreme Court specifically can hear cases between the United States and one of the fifty states, cases between states, cases involving foreign ambassadors, and cases brought by one state against citizens of another state or country. Normally to control the work load, the Supreme Court appoints a â€œspecial masterâ€ to hear the case and then give his opinion to the Supreme Court. The states involved can then provide arguments for or against the masterâ€™s opinion.
The way of governing which cases fall into the correct jurisdiction are based on three categories, case or controversy, standing and mootness. Article 3 explains that a case must be a case or controversy involving two true parties. The government cannot propose its own opinions on proposed legislation and even legislation that has passed cannot be argued until brought before the court. Standing is the second rule which says that there must be something of great stake in the outcome of the case, such as personal injury or economic injury. The third governing rule for a case is mootness. This speaks about the length of time cannot be too long after the relevant face have changed or if the problem has been resolved by other means.
Ultimately a case is under the authority of the Supreme Court justices. Recently Supreme Court justices have accepted cases that had to do with affirmative action such as Adarand Constructors v. Pena, Missouri v. Jenkins, and Miller v. Johnson, to push their own agendas in legislation.
Decisions in the lower courts can reach the Supreme Court through writs, which are court documents conveying an order. The three types of writs are, writ of certiorari, writ of heabeas corupus, or a writ of appeal. A writ of certiorari is granted whenever four of the nine justices agree to review a case. A writ of habeas corpus is used whenever it involves a convict, although limited in 1996. A writ of appeal is open to anyone who wants to appeal a court decision.
A determining position is that given to the solicitor general. The solicitor general is the third in rank in the Justice Department. The solicitor general acts as a defense lawyer in all cases before the appellate courts where the government is a party. This position is not managed by anyone above and the solicitor general alone can turn down a case to the Supreme Court. There are ways to circumvent the solicitor general, but most of these fail due to per curiam rejection which is a rejection through a complete unsigned opinion of the Court. The solicitor general may also step in and help in cases where the government is not a direct litigant by using amicus curiae and writing a brief on behalf of the party.
Before the case can be tried, both parties must write their briefs. By using interest groups to also file briefs, they can show the court the importance of the case and where the support lies. After the briefs, a oral section takes place. Both sides have thirty minutes to explain their arguments and may at that time answer any questions from the Court. After the oral arguments the justices make their final decision.
Justices meet alone and no other outside party may listen in on the conference. A majority rule will decide the final outcome, if not majority can be found, a compromise can be made, as was the case with 1973â€™s Roe v. Wade case. The Supreme Court could not come to a decision and so compromised, saying that some states could restrict abortions, but does not outlaw abortion altogether.
Once a decision or compromise is made, a member is chosen to write an opinion. This is chosen by the senior position on the majority side. This is extremely important because the interpretation can be used for future cases. Those on the losing
side may choose to write a dissenting opinion. The dissenting opinion may funnel more cases of the same type to the Supreme Court. The case is only a decision of the majority, and that that might change creating a different decision in the future.
Decision making is affected largely by other justice members and of congress. There is a balancing of judicial activism and restraint. Those who restrain are called â€œstrict constructionists,â€ because they look solely at the constitution. The activists will interpret the Constitution and previous laws in new ways, changing the shape of their ability to rationalize their decision.
The courts are limited in five ways though. The first way is that the court cannot hear cases in which there is no infringement of citizen rights by the government. Second, the Supreme Court can provide aide for an individual, not for large groups of people. Thirdly, even if the courts overturn a law, they must depend on the executive branch to enforce the new ruling. Fourth, the appointees to become Supreme Court Justices are approved by the Senate. Therefore, congress can shape the form of the Supreme Court as they deem fit. Fifth, Congress can change the number of justices and the jurisdiction that the Supreme Court works under. Only rare occasions as the Court challenged Congress of the executive branch.
Recently the judicial system has somewhat grown. Because of an enormous amount of social reform policies, the Supreme Court has become increasingly important to the lives of everyday citizens. Because these were more general, it created a second revolution. The Class action suit allowed for groups of people to be represented in a Supreme Court case and not just an individual. The third revolution came from Judge Garrityâ€™s effort to operate a desegregation plan between 1974 and 1985. This led to the ability of the Supreme Court to levy taxes to benefit the ruling of a federal mandate.
After all that we have our American government. Itâ€™s taken generations to come to where we are and itâ€™s nowhere near perfect, but it takes a miracle to create such calmness in a society filled with so many different people. The framers with great foresight created the Constitution which has only been amended twenty-seven times in 219 years.
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