Unit 4: Institutions of National Government

Unit 4: Institutions of National Government

To Do List

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  Drill 1
  
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  Drill 2
  
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  Drill 3
  
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  Read
  

DRILLS!

An institution is where you may end up if you stop visiting Shmoop, disastrously bomb the AP Government exam, wander out of the testing room and across several lanes of traffic in a near-catatonic state of shock, and end up locking yourself in your basement and listening obsessively to Taylor Swift songs on repeat.

An institution is also a pattern of behavior or social organization that shapes our society over time and often outlives the individuals who participate in it.

In this unit, we'll be dealing with the second kind of institution. In particular, we'll discuss the institutions that make the federal government run: Congress, the presidency, the courts, and the federal bureaucracy. But remember: if you stop reading now, you're statistically more likely to end up in the first kind of institution. Don't say you weren't warned.

"These hardy knaves and stupid fools,

Wow, that's a pretty harsh jingle there. Know when it's from? 1776.

Yep—Americans have been complaining about Congress as long as there's been a Congress. And the reputation of the legislative branch hasn't gotten any better over the centuries. In 2011, Congress's approval rating reached an all-time record low of 9%. Great job, guys—single digits!

Another poll, from 2008, suggested that the American public held less confidence in Congress than in any other institution. Only 12% of Americans held either a "great deal" or "quite a lot" of confidence in America's legislative branch. In comparison, 26% of Americans expressed confidence in the presidency and 32% expressed confidence in the Supreme Court.

That's one the framers got wrong. They expected the legislative branch, and the House of Representatives in particular, to be the "people's branch" of government. An executive was needed to give "energy" and direction to government. A judiciary was needed to provide a sobering check on legislative whim. But the legislature was to be the people's voice.

There are lots of reasons for the public's disconnect with Congress. But the changes within the structure of America's bicameral legislature are partially responsible. The Constitution's framers envisioned a "lower" House in which representatives were highly responsive to the voters because of their short terms (two years) and the small scale of representation (1/30,000).

Turnover in the House, they believed, would be high as a vigilant electorate turned out representatives who were unresponsive to their demands. But today, the scale of representation in the House is closer to 1/700,000, and incumbents are rarely turned out of office.

The Constitution's framers also expected the Senate to earn the respect of the public through its elite membership and deliberate processing of the issues. But by the end of the nineteenth century, the Senate was perceived as corrupt and elitist—controlled by corporations and trusts.

While you don't often learn this in civics class, the reason we have two chambers of Congress is actually quite simple. It's so that we can have an awesome miniature subway that runs underneath the Capitol. Seeing the look on a little tourist's face when he says, "Look, Daddy, there's a train that goes under the Capitol!" is totally worth the salaries and upkeep of 100 senators.

In the more "official" explanation, however, America's bicameral legislative branch was inspired by a combination of history, theory, and practicality. Great Britain's Parliament, divided into a House of Commons and a House of Lords, was bicameral. Most of the colonial legislatures, in which American revolutionaries cut their political teeth, were also bicameral. Political theorists argued that a unitary legislature was dangerous—consolidating too much power in any single body threatened liberty.

Finally, as we saw in Unit 1, the dispute between large and small states over representation in the national legislature—whether all states should be represented equally or on the basis of population—forced constitution-makers to adopt a bicameral legislature that incorporated both schemes of representation. Population-based and state-based representation: two great tastes that taste great together!

The House of Representatives, of course, is the legislative body that gave us this gem.

And this.

And this.

Perhaps that's because the founders intended the House to be the chamber of Congress most responsive to the public (because, let's face it, most of us also consider "kick them in the crotch" an outstanding problem-solving technique). To ensure this responsiveness, members serve only two-year terms, and the scale of representation was to be no greater than one representative for every 30,000 persons. But America's rapidly growing population forced Congress to eliminate the 1/30,000 ratio and limit the House to 435 members in 1929. Today, each member of the House represents closer to 700,000 people.

In addition, House membership is far more stable than the framers anticipated. While the federal census bureau allocates congressional seats every ten years on the basis of population, the states are allowed to carve their own congressional districts. As a result, the political party dominating the state legislature has historically created districts that benefit its candidates. This practice, called gerrymandering, has led to stable, politically safe districts for one party or the other. Incumbents are rarely defeated, and the "people's" chamber in the legislative branch is less responsive to the public than the framers intended.

The Supreme Court did eliminate one aspect of gerrymandering in 1964. In Wesberry v. Sanders, the Court held that Congressional districts must be drawn in such a way that they contain roughly the same number of people. Prior to this decision, rural districts tended be much smaller and therefore overrepresented; urban districts had much larger populations and were underrepresented. The legal principle was reaffirmed inReynolds v. Sims, a case that involved Alabama's state legislative districts. From these two cases emerged the principle of "one man, one vote"—that is, every person's vote should count as much as every other person's.

The Senate

While the House may be the body in which legislators call one another "Howdy Doody-lookin' nimrods," the Senate is no slouch either. Perhaps its proudest moment came on August 29, 1957, when Senator Strom Thurmond finished an uninterrupted 24-hour speech against civil rights legislation—proving that his fear of integrated bathrooms was far stronger than his urge to urinate. Democracy!

The founders intended the Senate to be the more deliberative, stable, and elite legislative chamber. Members serve six-year terms and must be at least 30 years old (the age requirement in the House is 25). Debate is rarely curtailed—a filibuster, or unlimited speech, can be stopped only with a cloture vote of 60 Senators.

The Senate also holds powers denied to the House—it ratifies treaties and confirms presidential appointments. Some framers also believed that the state legislatures, which were given the power to select senators, would act as a filter and ensure a more highly qualified and elite legislative body. By the end of the nineteenth century, however, reformers contended that the Senate had become a millionaires' club controlled by corporate interests and political factions. So in 1913, the Seventeenth Amendment established the direct election of United States senators by the people. As a result, today's Senate is a millionaires' club controlled by corporate interests and political factions.

Former Senate Majority Leader Trent Lott compared his job to "herding cats." We're not sure why you'd even want to herd cats, but the metaphor was fairly apt. Compared to House members, individual senators have more independence and power, which makes the job of Majority Leader (the leader elected by the majority party in the Senate) a difficult one—as much about building consensus within the party as issuing orders.

The presiding officer in the House—the Speaker of the House—is far more powerful. He (or she—you go, Nancy Pelosi!) is elected by the majority party. As Speaker he can, and is expected to, advance the interests of his party. He sets the legislative agenda, refers bills to committees, and appoints members to those committees. He interprets House rules and rules on all questions of order. The Speaker of the House is also second in the line of succession (after the vice-president) to the presidency.

Internally, the House and the Senate make their own rules and elect their own officers, with one exception—the Vice-President of the United States serves as the presiding officer, or president, of the Senate. He is not a member and may neither speak nor vote, but can break ties.

When they're done handing out autographed pictures of themselves, naming post offices, and passing resolutions congratulating the Alabama Crimson Tide on winning the national college football championship (or the terrorists will have won!), members of Congress do have a good bit of say when it comes to running the country. The founding fathers envisioned the legislative branch as the most powerful in the new government, so its responsibilities and procedures were explained more elaborately than those of the other branches. The most essential functions of government—to make laws, levy taxes, declare war, and regulate trade (but not to congratulate national-champion football teams? what were the founders thinking?)—were expressly delegated to Congress.

Those powers are broken into three types: expressed, implied, and inherent. The expressed powers are those explicitly enumerated in Article I. These include the power to levy taxes, borrow and coin money, regulate commerce, and declare war.

The implied powers are those suggested, or (as the elastic clause states) those deemed "necessary and proper" to the exercise of Congress's expressed powers.

The growth of congressional authority over the past century has largely been due to the expansion of its implied powers. This expansion of power has been controversial. Supporters of the tendency argue that the evolving demands of a growing country require that the government be equally dynamic and flexible. Critics argue that the Congress's authority has grown far past even the most ambitious visions of the Constitutional framers.

Congress's implied powers have proven crucial to the expansion of its range and authority. For example, Article I, Section 8:18 (the elastic or necessary and proper clause) has provided Congress with the authority to regulate the workplace and prohibit discrimination as "necessary and proper" to the exercise of its expressed power to regulate commerce. But this use of the elastic clause has been controversial. Strict constructionists like Thomas Jefferson opposed this broad interpretation of the Constitution. In contrast, broad constructionists like Alexander Hamilton supported a generous interpretation of the Constitution and Congress's powers.

Congressional powers have also expanded as a result of interpretation of the commerce clause (which gives Congress the power to regulate interstate commerce). While the Supreme Court enforced a narrow reading of the Constitution into the 20th century, the Court has read the commerce clause far more broadly since the 1930s. Important commerce clause cases include Gibbons v. Ogden (1824), Houston E. & W. Ry. Co. v. U. S.(1914), N.L.R.B. v. Jones (1937), U. S. v. Darby (1941), Heart of Atlanta Motel v. U. S. (1964), and Katzenbach v. McClung (1964). In recent years, the Court applied a more narrow reading of the commerce clause in Lopez v. United States (1995) and Morrison v. United States (2000).

We know it doesn't get much more exciting than Katzenbach v. McClung, but hold onto your seats, because there's more!

In addition to Congress's legislative responsibilities, it exercises certain non-legislative powers. The House of Representatives selects the president when no candidate receives a majority in the Electoral College. (It has exercised this power twice—in 1801 and 1825. The loser in 1801, Aaron Burr, got so ticked off that he went on to kill Alexander Hamilton in a duel—the lesson, as always, being "don't mess with Aaron Burr.")

Congress also has the power to impeach government officials, such as the president and Supreme Court Justices (remember that thing about President Clinton and the blue dress, or was that before your time?). During an impeachment proceeding, the House of Representatives serves, in effect, as the prosecutor bringing charges, while the Senate acts as the jury. (A two-thirds vote is required for removal.) The constitution also requires that the president seek the Senate's approval ("advice and consent") on executive appointments and treaties.

Congress annually considers thousands of measures, many of which are actually suggested for their consideration by the executive branch. In fact, unlike the nineteenth century, during which most legislation originated in Congress, today the executive branch proposes the vast majority of all significant legislation. In addition to bills (legislation that actually, y'know, does something, like spending money or changing the law), Congress also considers resolutions, which are not binding law, but sometimes are important statements of policy.

For instance, Armenian-American interest groups have urged Congress to pass a resolution recognizing that Turkey committed genocide against Armenians in 1915; the resolution wouldn't take any concrete action, but by putting Congress on record, it would have a significant impact on U.S. relations with Turkey.

Political Parties in the Legislative Process

Like high-speed internet, iPods, and five double-chocolate donuts for breakfast every morning (what? don't judge us!), political parties are something we just can't live without. But, like all of those things, political parties weren't even imagined by America's founding fathers.

Political parties are nowhere in the Constitution. In fact, most of the founders believed that political parties represented divisive threats to the legislative process. But today, Congress couldn't even function without parties—they are essential to the way Congress is organized.

Party members meet in a party caucus at the beginning of each session and periodically thereafter. Within these caucuses they select floor leaders and whips, and in the House the majority party selects the Speaker of the House. All committees are also organized along party lines—the number of Republicans and Democrats on each committee reflects the number of Republicans and Democrats in the chamber as a whole, with committee chairs selected by the majority party. Given the immense power of committees in the legislative process, the majority party therefore exercises its advantage long before the bill ever comes up for a vote.

Someone once said that football combines the worst aspects of American culture: violence and committee meetings. Apropos of that, here are a few thoughts on the role of committees in Congress.

Have you ever noticed how C-Span rarely shows a wide shot of the House or Senate chambers? Perhaps that's because, today, visitors to either chamber usually find only empty desks, and the lonely statesmen bothering to make a speech are usually talking to a mostly empty room. The real work of Congress is now done incommittees, not on the floor.

Every member of the House is assigned to one or two committees, and every member of the Senate to three or four. But some assignments are preferred over others. An ambitious congressman might aspire to a seat on the powerful House Rules Committee—the aptly named "traffic cop" of the House that decides when and on what terms a bill will make it to the House floor. A bean-counting congresswoman might aim at a seat on theWays and Means Committee—the committee that reviews all tax proposals. And in both House and Senate, few legislators wield more power than members of the Appropriations Committee, who get to decide how money is spent. (We're sure it's just a coincidence that the appropriators' districts receive all of the best government-funded projects.)

In addition to the standing committees (in 2009, there were 20 in the House and 16 in the Senate), the House and Senate periodically form special or select committees to explore some timely issue—for example global warming, intelligence, aging, or the imminent robot threat. (Oops, we weren't supposed to mention that last one.)

I'm Just a Bill?

We're going to mention "I'm Just a Bill" again, because we at Shmoop are just furious at that song. Listen—it was straight-up lying to you. The steps of passing legislation are not simple, they cannot be succinctly explained by an adorable anthropomorphic bill, and they cannot be set to a catchy tune. So hold on tight, because we're about to lay the truth on you. It's going to hurt you more than it hurts us, but it will all be over in a few minutes.

Bills introduced in the House are . . .

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  given their first reading
   
  
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  assigned to a committee that will in turn assign the bill to a subcommittee
   
  
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  possibly studied in public hearings in which interested parties will be given a chance to register their opinions
   
  
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  and then either are. . .
   
  
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    reported to the rest of the House with a "pass" recommendation
     
    
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    reported to the rest of the House with amendments
     
    
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    so completely revised that the bill reported to the rest of the House is an entirely new bill
     
    
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    reported to the House with a "no pass" recommendation
     
    
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    not reported to the House and therefore die in committee
    

Ha!

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  it will be placed on a calendar for consideration by the whole House
   
  
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  the Rules Committee will set the rules for its consideration (length of debate, whether the bill is subject to amendment, etc.)
  

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  receives a second reading
   
  
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  is usually considered by the "Committee of the Whole House," which just means that debate can be conducted under relaxed parliamentary rules. Individuals are limited to five-minute speeches.
  

Nope—barely even started.

Once the bill has been reviewed in the Committee of the Whole . . .

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  the House formally reconvenes
   
  
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  the bill is debated, usually for a pre-negotiated time
   
  
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  a member "moves the previous question" calling for a vote on the bill
  

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  All motions (such as to table a bill) and amendments must be voted on
  

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  is engrossed, or printed in its final, amended form
   
  
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  read a third time
   
  
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  voted on in its final form
  

Nope. We're halfway done. Now we get to do the whole freakin' thing over again.

If passed, the bill is sent to the Senate for consideration.

In the Senate, the bill will pass through a similar process, but with very different rules for debate. There are no time limits placed on a member's right to speak, and the vote is usually not taken until there is unanimous consent to do so. As a result, a senator can try to kill a bill by delaying or preventing a vote by talking (or even by threatening to start talking and not stopping). These filibusters can only be stopped by invoking the cloturerule, which requires the support of 60 of the 100 senators. It's important to note that, until recently, senators only rarely filibustered bills, and then in extreme circumstances. But the last few meetings of Congress have seen use of the filibuster rise to unprecedented heights, so that 40 senators can stop almost any bill from passing.

Ha, again!

Often, the Senate, if it passes the bill, will pass a modified or amended version. If so, the bill must be sent to a conference committee that

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  is composed of ranking members of the relevant committees from both the House and the Senate who will attempt to reconcile the House and Senate versions
   
  
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  report a reconciled bill back to the House and Senate
  

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  sign the bill into law
   
  
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  veto the bill, subject to an override by both the House and the Senate by a two-thirds vote
   
  
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  permit the bill to become law by not signing it—if unsigned after 10 days while Congress is in session, the bill becomes law
   
  
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  pocket veto the bill—if the president takes no action on a bill, and Congress adjourns within 10 days of his receiving it, the bill does not become law
  

Even though the Constitution stipulated that the president shall make treaties with the "advice and consent" of the Senate, no one, not even America's first president, was exactly sure what this responsibility entailed. So in August 1789, George Washington actually visited the Senate chamber to discuss with the senators a treaty under negotiation. But when their "advice" was too slow and inconclusive—and when they referred the question to a committee—he stomped out of the room and thereafter sought only their "consent."

The president of the United States in the most powerful person in the world. He controls the strongest military in history. He runs an executive branch of almost 3 million people. He holds the nuclear launch codes. HE'S RIGHT BEHIND YOU!!!

Oh, he's not? Well, he could've been.

But, for all that, the constitution sets only three formal qualifications for the job, and the duties of office are described in only a few paragraphs. On paper it's harder to measure up for a job at Jack in the Box (and believe us, Jack put us through 3 interviews!).

The formal qualifications and responsibilities of the president are delineated in very brief terms in the Constitution. The president must be at least 35 years of age, have resided in the United States for the previous 14 years, and be a natural-born citizen.

Anyhoo…the president sits for a four-year term and, since the ratification of the 22nd Amendment in 1951, may only serve two terms. The 25th Amendment, ratified in 1967, and the Presidential Succession Act of 1947 clarified the line of succession to the presidency. Should the president, die, resign, or be removed through impeachment, the vice-president becomes president, followed by the Speaker of the House, the president pro tempore of the Senate, the Secretary of State, and then the other cabinet officials.

The 25th Amendment also outlines the procedure for transferring power in the case of presidential disability—a procedure we're certainly all familiar with after the events following the terrorist abduction of President Harrison Ford, as chronicled in the nonfiction film Air Force One. The 25th Amendment also stipulates that should the vice-president die, resign, or be removed from office, the president is empowered to nominate a replacement subject to confirmation by the House and Senate.

A lot of people complain about the Electoral College, but it's really not a big deal. It's not like someone could actually win more votes for president and still lose the election.

Oh—hey, Al Gore. Why are you crying?

Okay, so the Electoral College is a bit weird—but, like many aspects of the Constitution, it's a compromise. Many framers lacked confidence in the people's qualifications to elect the president; others, more generously, thought the people could not obtain the necessary information. On the other hand, the alternative—leaving the decision to Congress—would violate the separation of powers deemed essential to safe government. The Electoral College gave the people an indirect role in electing the president (very indirect in the beginning) and created a filtering body separate from Congress—one that gathered only once every four years and served only one purpose.

The allocation of electors was also based on compromise. Each state received a number of electors equal to its representation in the House of Representatives (based on population) plus two more, equal to each state's number of senators (allocated on the principle of equal representation).

The people's role in the process became less indirect over time. The states were given the freedom to decide how to elect their electors and, initially, many assigned the task to the state legislatures. But by 1832 every state except South Carolina awarded electors on the basis of the popular vote, making the people's contribution a good bit less indirect. South Carolina continued in this fashion until they seceded from the Union in 1860.

Still, people (and not just Al Gore's immediate relatives) continue to criticize the Electoral College. Electors are ultimately free to vote as they wish, not as the popular vote directs them. And because all states receive two extra Electors regardless of population, the votes of people in small states actually carry more weight. Also, many criticize the winner-take-all system used in 48 states—win California by one vote, and you still get every one of its 55 electoral votes.

Some have argued that the Electoral College should be abolished and that the president should be directly elected by the public. Others argue that the Electoral College should be reformed. The winner-take-all system could be abolished, and electors could be distributed in proportion to the popular vote. Or as an alternative, electors could be elected within Congressional districts.

So, aside from wiping himself with gold-plated toilet paper and calling in drone strikes on his wife's ex-boyfriends (we're guessing here), what does the president do all day?

The president's duties are usually categorized under his responsibilities as head of state (the ceremonial head of the government), chief executive (responsible for implementing and enforcing the nation's laws and treaties), chief diplomat (setting and administering American foreign policy), chief legislator (setting a legislative agenda for Congress), and commander-in-chief (head of America's armed forces). The president is also the head of his party.

The Federal Bureaucracy

While we'll discuss the bureaucracy later in this unit (bet you can't wait!), keep in mind for now that the president is responsible for overseeing the whole thing. Originally, there were only four executive departments (War, Treasury, State, and Justice); as of 2009 there are fifteen. (And, because modern Americans like euphemism a lot more than the founding fathers, we changed "War" to "Defense.")

The heads of these executive departments sit in the Cabinet; they are appointed by the president and confirmed by the Senate. The president is also assisted by several cabinet-level appointees, including the White House Chief of Staff, the United States Trade Representative, the United States Ambassador to the United Nations, and the heads of the Environmental Protection Agency, the Office of Management and Budget, and the Council of Economic Advisors.

Growth of the Presidential Office

Quick—name five former presidents. Now name five former Speakers of the House.

Can't do it??? James Madison would have been surprised. He feared that the House of Representatives would dominate the presidency—but instead, the presidency has grown to be the most powerful branch within the federal government. Your ability to name five presidents (you were able to, weren't you? weren't you?) is part of the reason: the visibility of the office. But there are other reasons, as well:

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  Industrialization, urban growth, and social problems have increased the demands on all branches and levels of government.
   
  
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  Congress is often able to agree on only the broad details of legislation, leaving the president to interpret and flesh out the legislation in the process of implementing and executing the law.
   
  
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  America's increasing role in international affairs has expanded the president's foreign policy responsibilities, an area in which the Constitution grants the president vast unilateral powers.
   
  
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  The inherent unity of the office allows the president, unlike Congress, to speak with one voice.
   
  
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  The emergence of mass, national media allows the president, more than any other political figure to use his office, as Theodore Roosevelt said, as a "bully pulpit."
   
  
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  National emergencies such as war and depression have prompted calls for executive action.
  

Sure, not all presidents have what it takes to end up on Shmoop. Millard Fillmore, Martin Van Buren, those several dozen guys in the late 19th century with mutton chops…definitely not Shmoopworthy.

Some presidents, however, make our cut. Congratulations, gentlemen—you've left your mark on the executive office and its powers, and Shmoop salutes you.

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  George Washington. Lent his enormous prestige to the office. Set two term precedent. Set precedent for interacting with Senate in exercising its "advice and consent" role in foreign affairs. Stabilized national finances and avoided international conflict while nation was young.
   
  
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  Andrew Jackson. Strengthened presidency relative to Congress. Made more extensive use of the veto. Asserted federal power in subduing nullification crisis (when states threatened to ignore federal law).
   
  
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  Abraham Lincoln. Expanded executive power as a wartime measure. Suspended habeas corpus as part of strategy to maintain support of the border states. Abolished slavery as a "wartime measure."
   
  
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  Theodore Roosevelt. Asserted federal authority to regulate big business, conserve natural resources, and protect consumers and workers.
   
  
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  Franklin Roosevelt. Declared it the government's responsibility to monitor and improve economic conditions through public works, direct relief, increased bank regulation, and mortgage assistance.
   
  
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  Lyndon Johnson. Expanded government's role in providing income assistance and job training to the poor, and health care to the elderly and poor.
   
  
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  Ronald Reagan. Cut taxes and deregulated businesses in an effort to reduce the size of government and reverse the trend toward more government services dating to Franklin Roosevelt.
   
  
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  Barack Obama. Established universal health care with Affordable Care Act. Passed economic stimulus and financial reform legislation in wake of 2008 economic crisis. Supported repeal of "Don't Ask, Don't Tell," allowing gays to serve openly in the military.
  

While the framers of the Constitution devised a system in which the powers of government were distributed and the three branches checked and balanced one another, the executive branch is, in many ways, uniquely capable of providing direction to the federal policy. Alexander Hamilton argued that a strong executive would provide "will" and "energy" to the government—and he was right. In many critical areas, the president sets the policy course and Congress plays largely a reactive role.

Do you think Congress is happy about that? Nooooooo.

In fact, Congress (like the Ghostbusters fighting the giant marshmallow man) has repeatedly attempted to rein in the president's rapidly expanding powers. For example, Congress passed the Pendleton Act in 1883 to reduce the patronage powers inherent in the president's appointment powers. And in an attempt to restrict the president's power to remove officeholders, Congress passed the Tenure of Office Act in 1867, denying the president the power to remove a Senate-approved official without the Senate signing off. The act was a critical factor in Andrew Johnson's impeachment, but it was repealed in 1887. In 1926, in Myers v. United States, US Supreme Court ruled that Congress generally may not restrict the president's Constitutional authority to remove appointed officials. However, in Humphrey's Executors v. United States (1935), the Court held that Congress may define the terms under which the appointees to congressionally-created independent agencies, like the Federal Trade Commission, may be removed by the president.

Congress and the president have also come into collision over war powers. The Constitution makes the president commander-in-chief of the armed forces, but only Congress can declare war and approve war funds.

Yet, in practice, the president has been able to force or strongly influence Congress's actions by deploying troops in the field. The United States fought a three-year war in Korea without a Congressional declaration of war, and a ten-year war in Vietnam with only the vaguely worded Tonkin Gulf Resolution. Those believing that the intended balance of war powers has become unbalanced argue that even recent attempts to rein in presidential power still leave Congress with only a reactive role.

Congress did impose restrictions on the president's war powers in 1973 with the War Powers Act. Passed in the aftermath of the Vietnam War, over President Richard Nixon's veto, the act placed a sixty-day limit on the use of troops in hostile areas without Congressional authorization. But critics argue that Congress will find it hard to remove troops once the president has set a policy course—once troops are actually under fire in the field. Moreover, most presidents and many scholars have labeled the War Powers Act an unconstitutional legislative veto on executive power. Congress and the president have yet to have a direct showdown over the War Powers Act—but wouldn't that make for some awesome news coverage? It'd be like The West Wing, only totally real.

In one instance, Congress actually passed legislation that increased executive power, only to see it struck down by the Supreme Court. In 1996 Congress passed a law giving the president a line-item veto on spending measures: allowing him, in other words, to veto specific portions of a spending measure rather than the bill as a whole. But in Clinton v. New York City the Court ruled that Congress had no authority to expand the president's powers in this fashion.

Guess what? This section is Dick Cheney's favorite.

In recent years, a number of scholars and politicians have advanced a theory of the "unitary executive," which argues that the president's constitutionally allocated responsibilities may not be abridged by congressional or judicial action. According to this theory, Congressional actions such as the War Powers Act, which limits the president's options as commander-in-chief, violate the president's constitutionally defined powers.

The theory also argues that the president's authority as chief executive to implement federal laws cannot be restricted by the other branches. Consequently, Congressional creations like the Environmental Protection Agency, an "independent executive agency," are viewed as inappropriate efforts on the part of Congress to create an executive agency that is not fully controlled by the executive branch. Congress's legislation of "independent prosecutors" similarly encroaches upon the executive department's plenary authority over the justice department.

While the theory has received much attention in recent years, especially because the Bush Administration advocated it, it is not new. The question is really only whether the framers intended for ours to be a "strongly unitary" or "weakly unitary" executive—in other words, whether the president was to be absolutely shielded from all congressional encroachments on his duties, or whether Congress had the legitimate right, within its legislative functions, to impose some case-specific limitations on executive prerogative.

The President and the Legislative Process

There's a reason it's called "Obamacare," not "Housewaysandmeanscommitteechairmancharlesrangelcare." It's not only that the second one would require a bumper sticker the width of your entire bumper. It's also because the president's role in the legislative process, as in so much else, has been growing.

The Constitution does attempt a balance between the legislative and executive branches. Congress has exclusive power to make law and appropriate money (that is, allocate it to be spent). But the president is required to deliver from "time to time" information on the "State of the Union" and to recommend to Congress "such measures as he shall judge necessary and expedient." This Constitutional obligation is annually met in the president's State of the Union address, in which he sets the legislative agenda for the year, and the president's budget proposal, through which he begins the annual budgetary process.

In practical terms, the president's role within the legislative process has expanded enormously since 1789. Today, almost every significant and successful piece of legislation is initiated and promoted by the president. Within the budgetary process, however, many argue that Congress still retains at least equal influence. This is partially because two critical presidential requests—the line-item veto and impoundment authority—have been denied or curtailed.

We already talked about the line-item veto above. What about impoundment authority? (No, it doesn't have anything to do with the president forcing Congress to adopt adorable abandoned puppies, but it should.)

Presidents since John Adams have insisted that they possess the Constitutional authority to impound, or refuse to spend, money appropriated by Congress. While the Constitution explicitly insists that only Congress may appropriate money, it does not expressly say that the president must spend every dollar appropriated. (Clever loophole, huh? Someone went to law school.)

As a result, presidents have impounded or withheld monies allocated by Congress when they thought the spending was unnecessary or inappropriate under the circumstances (e.g., high inflation, a national emergency), arguing that this discretionary authority was rooted in the president's obligation to "faithfully execute" the laws. President Richard Nixon impounded far more than other presidents (4% of Congressional appropriations in 1974) leading Congress to pass the Budget and Impoundment Control Act, imposing severe restrictions on the practice.

Thus far, federal courts have upheld the law, and presidents have complied with it. But the Supreme Court has not considered the law, and some argue that, like the War Powers Act, it constitutes an unconstitutional infringement on presidential power. The inevitable president-versus-Congress showdown on budgetary impoundment authority will no doubt make for some riveting C-Span.

Presidential facial hair used to be so much more awesome.

Ah, the Supreme Court justices. They're like the Jedi of American politics. They work mainly in secret, live in an enormous temple, and talk in jargon relatively incomprehensible to the rest of us. Once, Justice Stephen Breyer even decapitated an appellate lawyer with a lightsaber [CITATION NEEDED].

Of course, our judicial branch doesn't need to be completely shrouded in mystery. In this section, we'll do a little to demystify the guys and gals in black robes.

Article III: Revenge of the Courts

The Constitution's framers thought it was necessary to place a judicial check on the actions of the president and Congress. Of course, it's not very democratic to allow nine old guys (now, seven old guys and two old ladies) to overrule the branches elected by the people. And the founding fathers were aware of that fact—even though they were skeptical of anything approaching direct democracy, they were also sensitive to Anti-Federalist complaints that they were concentrating power in the hands of an elite few. Maybe that's why the leftArticle III, which describes the judicial branch, so vague. The framers mainly left it to Congress to set up a system of courts, and left it to the courts to set many of their own powers, including judicial review (the power to strike down laws). Clever move by the founding fathers, huh?

But the founders did agree that a strong, truly "national" government needed a national court that would provide a uniform interpretation of the law for all states to follow. So Article III of the new Constitution placed the nation's judicial powers "in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish." That part about "inferior" has hurt the other courts' feelings for more than 200 years.

Setting the Size of the Court

Imagine the Chief Justice of the Supreme Court, the most powerful jurist in the land, presiding over Judge Judy's courtroom in a child support case, telling the plaintiff to please lower her voice, put her tank top back on, and stop addressing the court as "buttmunch." That was pretty much how the Supreme Court started out. Yep.

While we've been stuck with nine justices for quite some time, the Constitution actually doesn't set any number at all. In the Judiciary Act of 1789, Congress set the number Supreme Court justices at six: one chief justice and five associate justices. This figure was tied to the number of circuit courts—geographically based appellate tribunals—that the Supreme Court justices were charged with overseeing. Each justice had to literally ride a circuit—travel by horse from town to town to hear cases. (Maybe that's why few eminent judges actually wanted a seat on the Court in the early days.)

In 1801, a Federalist-controlled Congress passed an act eliminating the Supreme Court justices' circuit court duties (they wanted to build a more elite, prestigious court) and reducing the number of Court members to five. But less than a year later, a newly elected Republican majority in Congress reinstated the Court's circuit responsibilities (they wanted the judges to remain in touch with the people), created seven regional circuits, and increased the number of Supreme Court justices to match. With rapid westward expansion in the first half of the nineteenth century, Congress established two more circuits and therefore added two more seats to the Court. The Court was briefly expanded to ten justices during the Civil War to accommodate a new West Coast circuit, but Congress reduced the size of the Court back to nine seats and, shortly thereafter, to seven.

Finally, in 1869, Congress ended this judicial whiplash once and for all, settling on a grand total of nine—an odd number that was great for preventing ties (which, according to the Constitution, must be settled by a sudden-death penalty shootout). The same legislation also reduced justices' circuit court duties—and, in 1911, those duties were made entirely optional.

Court Appointments and Terms: A Life Sentence

"Oooh, sorry you didn't like my ruling striking down your precious law, Mr. President. Watcha gonna do—fire me?"

Maybe actual Supreme Court justices are a bit more dignified than that, but the Constitution was written to allow them to tell off the president, the Congress, and the public in just that way. When you have a job for life, you can tell off anyone you want.

All federal judges and justices—not only the Supremes (both our favorite Motown group and branch of government)—are appointed by the president and confirmed by the Senate. Like Supreme Court justices, judges chosen for US District Courts, US Court of Appeals, US Court of International Trade, and the Court of Appeals for the Federal Circuit serve for life. They may, however, be removed by impeachment. Judges are appointed for fifteen-year terms in the US Court of Appeals for the Armed Forces, the US Tax Court, the US Court of Federal Claims, and the US Court of Appeals for Veterans' Claims. Judges who sit on the District Court of Appeals are chosen for eight-year terms.

Prior to the mid-twentieth century, the president's appointments to the federal bench and Supreme Court were rarely challenged. But in recent decades, the review of judicial appointments by the Senate has become very political. Highly sensitive issues such as abortion and affirmative action become litmus tests for prospective judges. Senators aggressively question nominees and study previous rulings and legal writings in order to gauge the nominees' views on these critical issues. And organizations representing different interests aggressively lobby for and against nominees. Judges deemed guilty of "judicial activism" (as opposed to judicial restraint) face even tougher scrutiny. One consequence is that seats on the federal bench often go unfilled for some time.

Judicial Review

Like Voltron, the Supreme Court justices can combine to wield the mightiest power of the judicial branch:judicial review.

Judicial review is the courts' power to rule on the constitutionality of legislative acts and executive actions taken by federal, state, and local governments. Most state and federal courts possess this power, but the Supreme Court is the ultimate arbiter of constitutional questions. The phrase "judicial review," like the phrase "nuclear football," is not found in the Constitution; but most legal historians argue that the framers intended for the courts to exercise this power.

The Supreme Court first exercised this authority under Chief Justice John Marshall, one of the nation's most influential justices and advocates of a stronger judiciary. In Marbury v. Madison (1803), the Marshall Court held that portions of the Judiciary Act of 1789 were unconstitutional. The Court first held an executive action unconstitutional in 1804 in Little v. Barreme.

While Congressional critics challenged the Court's assertion of power in Marbury v. Madison, the Court has more frequently affirmed than denied the constitutionality of legislative actions. Following Marbury, the Court did not overturn a Congressional act until 1857. But during Marshall's tenure as Chief Justice (1801-1835), the Court further established its power of judicial review by striking down a state law in Fletcher v. Peck, affirming a controversial Congressional act in McCulloch v. Maryland, and asserting federal authority over the states in regulating commerce in Gibbons v. Ogden.

Important Supreme Courts

So which justices go on the judicial equivalent of Mount Rushmore? Which justices go in the all-time Supreme Court all-star starting lineup? Which justices get a shout-out in the Constitution's liner notes? Choose your own bad metaphor, but see the answers below:

• 
  The Marshall Court. Chief Justice John Marshall, 1801-1835. Raised prestige and power of the Court. Critical rulings asserted Court's power of judicial review (Marbury v. Madison), strengthened Congress's implied powers (McCulloch v. Maryland) and power to regulate commerce (Gibbons v. Ogden).
   
  
• 
  The Warren Court. Chief Justice Earl Warren, 1953-1969. Liberal Court that sought to reverse racial discrimination and increase legal protection for minorities and the accused. Ordered the integration of public schools (Brown v. Board of Education), affirmed the voting rights act of 1965, and required the redrawing of congressional districts on the basis of "one man, one vote" (Wesberry v. Sanders). In Gideon v. Wainwright the Court held that persons accused of felonies must be provided a lawyer, and in Miranda v. Arizona the Court said that arrested persons must be informed of their rights. The Court also established a constitutional right to privacy in Griswold v. Connecticut.
   
  
• 
  Burger, Rehnquist, Roberts. Chief Justices Warren Burger (1969-1986), William Rehnquist (1986-2005), and John Roberts (2005-). Since the retirement of liberal Chief Justice Warren, court watchers have anticipated a dramatic turn to the right under these Republican appointed justices. But thus far these Courts defy simple categorization. For example, the Burger Court held for a Constitutional right for abortion in Roe v. Wade and stated that race could be used in college admissions processes if not tied to a quota system (Regents of the University of California v. Bakke). On the other hand, the Rehnquist Court narrowed Roe v. Wade by allowing states to impose more restrictions on abortion access in Planned Parenthood v. Casey. And the Roberts Court upheld Congress's 2003 Partial Birth Abortion Ban inGonzales v. Carhart and Gonzales v. Planned Parenthood. In fact, the Roberts Court has turned more sharply conservative in recent years: one controversial recent case, Citizens United v. FEC, cleared the way for unlimited private spending on election campaigns. One recent exception is Robert's upholding of President Obama's health care reform law in 2012.
  

They may be inferior courts, but their mothers still think they're the best. These self-esteem-challenged courts fall into two categories: constitutional courts and special courts.

The United States Courts of Appeals exercise only appellate jurisdiction (they only review decisions in cases that have already gone to trial, focusing on questions of law rather than questions of fact). Congress created them in 1891 to help the Supreme Court with its growing workload.

If you've ever watched The Wire, you know that every self-respecting gangbanger is fiercely protective of his turf, and will pop several caps in your posterior if you even consider infringing on said turf. Judges basically do the same thing, except they're a bit more polite about it, and instead of turf, they call it jurisdiction.

Each court possesses a distinct jurisdiction—a clearly defined authority to hear only particular types of cases. For starters, the federal courts are authorized to hear cases in which there is a federal question—ones in which the issues within the case deal with the Constitution, federal law, or treaties, or the parties within the case are either federal government officials, foreign ambassadors, or one of the 50 states. In addition, the federal courts may hear cases in which there is a diversity of citizenship—that is, in which the citizen of one state sues the citizen of another, or a US citizen sues a foreign government or foreign citizen.

If the issues or parties do not meet these qualifications, a state court hears the case. In certain circumstances (i.e., if a federal law has a direct impact on a state law), state courts possess concurrent jurisdiction—that is, the authority to also hear a federal case. Otherwise, the federal courts possess exclusive jurisdiction over federal cases.

Last but not least, courts distinguish between original jurisdiction (hearing a case the first time it comes up) and appellate jurisdiction (hearing appeals of the original decision). As we saw above, District Courts exercise original jurisdiction; Federal Courts of Appeals and the Supreme Court exercise appellate jurisdiction (though the Supremes have original jurisdiction in a few special cases, like showdowns between two states).

District Court Procedure

So how exactly do the federal courts work together? Let's say the Feds suspect you of trafficking pirated Justin Bieber CDs across state lines. In addition to hauling you before the Court of Questionable Taste, they may also take you to Federal District Court.

District Courts hear both criminal and civil cases. Before a suspected criminal can be tried by a District Court, he must be indicted by a grand jury of between 16 and 23 people. If they conclude that there is sufficient evidence to proceed with a trial, they issue an indictment. That doesn't mean you're guilty of Bieber piracy—just that there are adequate grounds for proceeding with a trial.

If indicted, you're tried before a jury of twelve people. A guilty verdict is reached in a criminal case only if the jury unanimously reaches this decision "beyond a reasonable doubt." (In civil cases, the standard is less demanding; a decision may be based on "a preponderance of the evidence," meaning that there appears to be more evidence on one side than the other) Most criminal proceedings do not reach this stage; the vast majority is resolved through plea bargains.

So you've been convicted of Bieber piracy and laughed out of court and into the federal pen. But wait! Your lawyer points out that the police searched you without properly obtaining a warrant. They violated your constitutional rights! Congratulations, you can appeal.

A person convicted of a crime may appeal, but if the government is unsuccessful in its prosecution, it may not appeal. Both sides, however, may appeal a sentence. In civil cases, both sides are allowed to appeal the court's decision or award of damages.

The United States Courts of Appeals handle most appeals within the federal system. They are broken into twelve regional circuits staffed by between six and 29 judges. They do not review the factual details of the crime or civil suit, just the interpretation and application of the law. Most cases are reviewed by a three-judge panel; there are no juries. Occasionally, if the case is unusually significant, the circuit judges may consider the case en banc; that is, all of the judges within the circuit will review the case.

So your conviction was upheld on appeal—too bad. But you're determined to take this all the way to the top! And lucky for you, the Supreme Court decides that it wants to set an important precedent in the area of search warrants for people with questionable taste. You're going to Washington! (Well, your lawyer is. You're still in jail.)

The vast majority of cases heard by the Supreme Court reach there on appeal from a lower appellate court. Most commonly, the losing party requests a writ of certiorari, an order by the Supreme Court to the lower court to deliver all records of a particular case. Others reach the Court by certificate, a request placed by a lower court for help interpreting a law.

In recent years, the justices have agreed to "grant cert" or hear only about 70-100 cases annually—about 1% of all appeals requests. The vast majority of cases are rejected because the Court agrees with the decision of the lower court or because the justices do not feel the case is significant enough to merit its attention (Supreme Court justices are fairly big snobs). Most commonly, the Court accepts a case when it concludes that the lower courts need direction—that is, when the lower courts are not interpreting or applying a point of law in a uniform way and a clear, governing precedent needs to be set. Less frequently, the justices accept a case because they believe a significant legal or constitutional issue is involved. Only rarely does the Court accept a case because it concludes that the lower court has made a significant error. At least four of the nine members of the Court must agree to hear a case, a practice referred to as "the rule of four."

Once the Supreme Court agrees to accept a case, it schedules time to hear oral arguments from lawyers representing both sides. Following these presentations, the justices recess to consider the oral arguments as well as court briefs, highly detailed documents filed by each side prior to appearances before the court.

While in recess, the Chief Justice facilitates discussion, polls each justice on his or her position in the case, and moderates debate until each member has settled on a decision. In its early years, the Court strove for unanimity in the belief that a decision carried more weight if delivered without dissent. Until the middle of the twentieth century almost all decisions were issued without dissent. But today only about 25% of all the Court's decisions are unanimous.

The majority opinion stands as the official edict of the Court, though dissenting justices offer an explanation for their opposition to the final ruling. In addition to the majority and dissenting opinions, justices may offer aconcurring opinion that agrees with the majority but applies different reasoning for the decision.

(Btw, the Court ruled in your favor, and you're now free. Hope you don't mind the several years you had to spend in prison.)

We know this doesn't have anything to do with the judicial branch, but c'mon—it's Metrosexual Abraham Lincoln!