Presidential Unilateral Powers

Expansion of Presidential Powers

• Presidents have increasingly used unilateral powers, including executive orders, which have the force of law unless overturned by the courts.
• Presidents have also used signing statements to offer their own interpretation of legislation as they sign it, directing them to the bureaucratic entity responsible for implementation.

Executive Agreements and War Powers

• Congress has allowed the widespread use of executive agreements to formalize international relations, as long as significant matters are still addressed through the Senate in the form of treaties.
• Recent presidents have relied on an expansive definition of war powers to act unilaterally at home and abroad.

Budget and Policy Control

• Presidents have taken the lead in framing budgets, negotiating budget compromises, and at times impounding funds to prevail in policy matters.
• Congress has often granted presidents formal delegation of authority, enabling them to exercise control over budget and policy decisions.

Executive Agreements in Foreign Policy

• Congress allowed the extensive use of executive agreements to establish international relations.
• Important matters were still required to go through the Senate in the form of treaties.

Executive Privilege

• Executive privilege is the right of the President and high-level executive branch officers to withhold information from Congress, the courts, and the public.
• This power can be used in two circumstances:
  • Certain national security needs
  • Protecting the privacy of White House deliberations when it is in the public interest to do so

Historical Use of Executive Privilege

• Every President to date has used executive privilege in some way

President Obama's Use of Executive Privilege

• One notable example was during the "Fast and Furious" scandal
• The Bureau of Alcohol, Tobacco, and Firearms (ATF) ran an operation to sell guns to Mexico to track and apprehend major drug cartels
• Out of 2,000 guns, hundreds were unable to be tracked
• Two guns traced to Fast and Furious were later found at the scene of a December 2010 shootout near Rio Rico that killed Border Patrol Agent Brian Terry
• The House Oversight and Government Reform Committee conducted a years-long investigation into ATF, seeking documentation related to the scandal
• The documentation was eventually released

Presidential Appointments

• New presidents quickly fill non-cabinet positions with their preferred candidates when possible.
• Most senior cabinet agency positions and Executive Office of the President nominees are appointed at the start of a presidency or when vacancies arise.
• Thousands of new appointments are made by a new president in their first two years in office.
• Ambassadors are nominated by the president and require Senate confirmation.

Federal Judicial Appointments

• Federal judges serve for life.
• Vacancies in federal courts and the U.S. Supreme Court occur gradually as judges retire.

The Executive Office of the President (EOP)

• Created in 1939 by President Franklin D. Roosevelt to support the President in governing effectively.
• Responsible for various tasks, including:
  • Communicating the President's message to the American people.
  • Promoting the country's trade interests abroad.

Characteristics of the EOP

• Members serve at the will of the President.
• Most members do not require Senate approval.
• The President can fire EOP members at will.
• Headed by the Chief of Staff, who:
  • Oversees the operations of all White House staff.
  • Controls access to the President.
• Members of the EOP are largely loyal to the President.

The Cabinet

• The president-elect's important task is selecting a cabinet, which currently consists of 15 members.
• The original cabinet, established by George Washington, had only four members: the attorney general and the secretaries of War, State, and the Treasury.
• The most important cabinet members, the heads of Defense, Justice, State, and the Treasury, receive the most attention from the president, Congress, and the media.
• They are referred to as the inner cabinet, while the others are called the outer cabinet.

Cabinet Selection

• Presidents consider ability, expertise, influence, and reputation when selecting a cabinet.
• They also aim to balance political and demographic representation (gender, race, religion, and other considerations) to create a capable and descriptively representative cabinet.
• Bill Clinton's "E.G.G. strategy" for senior-level appointments prioritized ethnicity, gender, and geography.

Cabinet Confirmation

• The Senate confirms or rejects presidential nominations for cabinet positions.
• Cabinet nominations are rarely rejected, but can be withdrawn due to concerns about the nominee's past behavior.
• Examples of failed nominations include Senator John Tower for defense secretary and Zoe Baird for attorney general.

Other Executive Branch Appointments

• The Senate also approves non-cabinet subordinate administrators, agency heads, and commission leaders, including the Internal Revenue Service, Central Intelligence Agency, and Federal Reserve.
• The Office of Management and Budget (OMB) is the president's budget department, responsible for preparing the executive budget proposal and overseeing budgetary affairs.

Cabinet Departments

• There are currently 15 cabinet departments in the federal government, which are major executive offices directly accountable to the president.

Characteristics of Cabinet Departments

• Each department has a head called a secretary, appointed by the president and confirmed by the Senate.
• Secretaries report directly to the president and oversee a huge network of offices and agencies that make up the department.
• They also work in different capacities to achieve each department’s mission-oriented functions.

Hierarchy of Cabinet Departments

• Each department has a hierarchical structure with various levels of bureaucracy, descending from the department head.
• These levels consist of essential staff, smaller offices, and bureaus, allowing large bureaucracies to address many different issues by deploying dedicated and specialized officers.

Example of Hierarchical Structure: Department of State

• Below the Secretary of State are several undersecretaries, including those for political affairs, management, economic growth, energy, and the environment, and many others.
• Each undersecretary controls a number of bureaus and offices, which in turn oversee a more focused aspect of the undersecretary’s field of specialization.

Example of Bureau Structure: Undersecretary for Public Diplomacy and Public Affairs

• Below the undersecretary for public diplomacy and public affairs are three bureaus: educational and cultural affairs, public affairs, and international information programs.
• These bureaus have even more specialized departments under them, such as the spokesperson for the Department of State and that spokesperson's staff, the Office of the Historian, and the United States Diplomacy Center.

Exception: Department of Justice

• The Department of Justice is structured differently, with an attorney general, an associate attorney general, and a host of different bureau and division heads, rather than a secretary and undersecretaries.

Cabinet Departments

• There are 15 cabinet departments in the federal government, which are major executive offices directly accountable to the President.
• Each department has a head called a Secretary, appointed by the President and confirmed by the Senate.
• Secretaries report directly to the President and oversee a network of offices and agencies within the department.
• The Department of Justice is structured differently, with an Attorney General, Associate Attorney General, and bureau and division heads.

Department Structure

• Cabinet departments have a hierarchical structure with multiple levels of bureaucracy.
• The department head is at the top, followed by undersecretaries, assistant secretaries, deputy secretaries, and other officials.
• Each level of bureaucracy addresses different issues by deploying specialized officers.
• For example, the Secretary of State has undersecretaries for political affairs, management, economic growth, energy, and the environment, among others.

Independent Executive Agencies

• Independent executive agencies report directly to the President, with heads appointed by the President.
• These agencies are assigned focused tasks and are not subject to the regulatory authority of any specific department.
• Examples of independent agencies include the Central Intelligence Agency (CIA), National Aeronautics and Space Administration (NASA), and Environmental Protection Agency (EPA).

Regulatory Agencies

• Regulatory agencies emerged in the late 19th century to control the benefits and costs of industrialization.
• The first regulatory agency was the Interstate Commerce Commission (ICC), which regulated the railroad industry.
• Other regulatory agencies include the Commodity Futures Trading Commission, Federal Communications Commission, and Securities and Exchange Commission (SEC).

Government Corporations

• Government corporations are agencies formed by the federal government to administer a quasi-business enterprise.
• They exist to provide services that are partly subject to market forces and generate enough profit to be self-sustaining.
• Government corporations have a board of directors and managers, but do not have stockholders and are exempt from taxes.
• Examples of government corporations include the U.S. Postal Service and the National Railroad Passenger Corporation (Amtrak).

Government Reforms and Whistleblower Protection

• In the 1970s, government officials sought solutions to address inefficiency and corruption in the government.
• The Civil Service Reform Act of 1978 was drafted by Congress, providing rights for federal whistleblowers and setting up protection from reprisals.
• The act established the Merit Systems Protection Board, a quasi-judicial institutional board headed by three members appointed by the president and confirmed by the Senate.
• The Merit Systems Protection Board hears complaints, conducts investigations into possible abuses, and institutes protections for bureaucrats who speak out.
• Over time, Congress and the president strengthened whistleblower protections through additional acts.
• The Whistleblower Protection Act of 1989 and the Whistleblower Protection Enhancement Act of 2012 were passed to further protect whistleblowers.
• The Whistleblower Protection Enhancement Act of 2012 compelled federal agencies to protect whistleblowers who reasonably perceive that an institution or the people in the institution are acting inappropriately.

The Federal Court System

• There are 94 US district courts in the 50 states and US territories, with at least one in each state.
• The remaining district courts are located in Washington, DC; Puerto Rico; Guam; the US Virgin Islands; and the Northern Mariana Islands.
• These courts are the trial courts of the national system, where federal cases are tried, witness testimony is heard, and evidence is presented.
• No district court crosses state lines, and a single judge oversees each one.

The US Courts of Appeals

• There are 13 US courts of appeals, also known as circuit courts, with 11 across the nation and 2 in Washington, DC.
• Each court is overseen by a rotating panel of 3 judges who review the rulings of the trial courts within their geographic circuit.
• There are currently 179 judges serving on the circuit courts.
• The circuit courts are often referred to as the intermediate appellate courts of the federal system.

Evolution of the Federal Court System

• The federal court system was not created overnight, but has evolved over 200 years through various acts of Congress.
• The district courts were established by Congress and initially had limited jurisdiction.
• Over time, Congress expanded their jurisdiction, particularly over federal questions, enabling them to review constitutional issues and matters of federal law.

The Circuit Courts

• The circuit courts started as the trial courts for most federal criminal cases and some civil suits.
• They did not have their own judges initially, but instead used a local district judge and 2 Supreme Court justices.
• The circuit courts also exercised appellate jurisdiction over most civil suits that originated in the district courts until 1891.
• The original circuit courts were abolished in 1911 and replaced by the US courts of appeals.

Specialized Federal Courts

• There are other federal trial courts with specialized jurisdictions, such as the Court of International Trade, Court of Federal Claims, and US Tax Court.
• Specialized federal appeals courts include the Court of Appeals for the Armed Forces and the Court of Appeals for Veterans Claims.
• Cases from these courts may be appealed to the Supreme Court, although this is rare.

The US Supreme Court

• The US Supreme Court has 9 justices, with 1 chief justice and 8 associate justices.
• The Supreme Court plays a vital role in setting the standards of interpretation that the lower courts follow.
• The Supreme Court's decisions are binding across the nation and establish the precedent by which future cases are resolved.

Stare Decisis

• The US court system operates on the principle of stare decisis, meaning that today's decisions are based largely on rulings from the past.
• Stare decisis ensures greater certainty and stability in law and constitutional interpretation, and contributes to the solidity and legitimacy of the court system.
• Judges are reluctant to disregard precedent without justification, but new precedents or rulings can be created as times and circumstances change.

The Supreme Court's Annual Session

• The Supreme Court begins its annual session on the first Monday in October and ends late the following June.
• Thousands of cases are appealed to the Supreme Court every year, but only a handful are selected to be placed on the docket.

Case Selection Process

• The Supreme Court exercises discretion in the cases it chooses to hear, but four of the nine justices must vote to accept a case, known as the Rule of Four.
• The Court is more likely to grant certiorari when there is a conflict on an issue between or among the lower courts.
• The amount of interest-group activity surrounding a case before it is granted cert has a significant impact on whether the Supreme Court puts the case on its agenda.

The Solicitor General's Role

• The solicitor general is the lawyer who represents the federal government before the Supreme Court.
• The solicitor general determines the position the government will take on a case and prepares and files the petitions and briefs.
• The solicitor general may also recommend that the justices decline to hear a case.
• The solicitor general has significant influence on the Court, but the justices do not always agree with the solicitor general's recommendations.

Supreme Court Procedures

• Once a case has been placed on the docket, briefs must be submitted by both parties explaining their view of the case.
• Oral arguments are held in cases from October through April, where each side's lawyers have thirty minutes to make their legal case.
• The justices consider oral arguments as an opportunity to get answers to any questions they may have.

Judicial Decision-Making

• When oral arguments have been concluded, the justices have to decide the case in conference, which is held in private twice a week when the Court is in session and once a week when it is not.
• The chief justice speaks first about a case, then each justice speaks in turn, in descending order of seniority, ending with the most recently appointed justice.
• The judges take an initial vote in private before the official announcement of their decisions is made public.

Judicial Opinions

• Every Court opinion sets precedent for the future.
• The Supreme Court's decisions are not always unanimous, and a majority opinion is the one with which a majority of the nine justices agree.
• A tied vote is rare, but in the event of a tied vote, the decision of the lower court stands.
• Court decisions are released at different times throughout the Court's term, but all opinions are announced publicly before the Court adjourns for the summer.

Influences on Supreme Court Decision-Making

• Law clerks, the solicitor general, interest groups, and the mass media play a role in the Supreme Court's decision-making process
• Additional legal, personal, ideological, and political influences also weigh on the Court

Legal Influences

• Courts, including the Supreme Court, cannot make a ruling unless they have a case before them
• Courts are constrained by the facts of the case, the Constitution, relevant laws, and their own precedent
• Justices' decisions are influenced by their definition of their role as a jurist, with some believing in judicial activism and others in judicial restraint

Judicial Activism vs. Judicial Restraint

• Judicial activism involves defending individual rights and liberties, and stopping actions and laws by other branches of government that infringe on these rights
• Justices who believe in judicial activism are more likely to use judicial power to broaden personal liberty, justice, and equality
• Judicial restraint involves deferring decisions to the elected branches of government and staying focused on a narrower interpretation of the Bill of Rights
• Justices who believe in judicial restraint are less likely to strike down actions or laws as unconstitutional and are less likely to focus on the expansion of individual liberties

Personal and Political Influences

• Justices' personal beliefs and political attitudes influence their decision-making
• Liberal-thinking judges tend to make more liberal decisions, while conservative-leaning judges tend towards more conservative ones
• Presidents often aim for nominees who mirror their own political or ideological image

Public Opinion and Special Interest Pressure

• The courts are affected by the court of public opinion, special-interest pressure, and the leverage of elected or other public officials
• The mass media and general public can sway the courts' decisions
• As times change and public opinion changes, the court's interpretation is likely to adapt to avoid losing relevance

Supreme Court Nominations

• In March 2016, President Barack Obama nominated Merrick Garland to replace Justice Antonin Scalia after Scalia's sudden death.
• Senate Majority Leader Mitch McConnell refused to hold hearings on Garland's nomination, hoping to keep the seat open for a Republican president to fill.
• The strategy paid off when Neil Gorsuch was confirmed by the Senate in 2017, shortly after Donald Trump's inauguration.

The "Nuclear Option"

• The Republicans used the "nuclear option" to bypass Democratic filibustering and ensure Gorsuch's approval.
• The "nuclear option" is a parliamentary procedure that allows the Senate to override a standing rule with a simple majority.
• Normally, a two-thirds supermajority is required to invoke cloture on a measure amending the Standing Rules.

Brett Kavanaugh's Supreme Court Appointment

• In 2018, President Trump appointed Brett Kavanaugh to the Supreme Court.

Confirmation Hearings and Allegations

• Christine Blasey Ford accused Kavanaugh of assaulting her in the 1980s during the confirmation hearings.
• The allegations led to an FBI investigation into the matter.

Outcome

• Despite the allegations and investigation, Kavanaugh was confirmed by the Senate.