Volleyball Questions

Using examples, explain the limitations on the Supreme Court’s powers.

Judges are limited in their ability to act as policy-makers by factors such as:

• Legal process. Judges can only decide matters that are brought to them in the form of legal cases and will not offer advisory opinions.
• Court traditions. Judges only consider cases where their decision will make a real difference i.e. cases in which affect a considerable number of people and it is claimed that considerable harm has been caused.
• Lack of Enforcement Power. President Jackson said, “John Marshall has made his decision, now let him enforce it”. Since, there have been many examples of the Court’s decisions being ignored or actively resisted, such as the refusal by southern States to end racial segregation in the 1950’s and 60’s.
• Public opinion. Striking down New Deal legislation in the 1930’s created the impression that the Judges were out of touch with ordinary people which undermined the Court’s status
• Congress can alter the number of judges on the Court, which was successfully used as a threat when the Court was striking down New Deal legislation in the 1930’s
• Supreme Court judgements can be over-turned by a constitutional amendment eg the 16^th Amendment was passed as a result of a Supreme Court declaration that a federal income tax was unconstitutional
• Congress can modify laws which have been declared unconstitutional so that, despite a Supreme court ruling, a law continues to apply in an altered form
• The President’s power to appoint judges to the Court when there is a vacancy can be seen as a limitation on judicial power, although it does more to shape the direction of the Court than exert limitations.

Why and to what extent, there has been disagreement about the constitutional importance of federalism?

There is a widely held view in the USA, especially on the right of the political spectrum, that liberty is best protected by policies being made in local communities with the policy-makers being held locally accountable and that, conversely, the greatest threat to freedom was/is a powerful central government relative to state governments. Thus federalism is seen as the key constitutional device to protect liberty and any dilution of federalism is seen as undermining freedom.

However, other Americans argue that the consistent application of the Bill of Rights can only be done/monitored by the national government and point out that, under the banner of ‘States Rights’, local communities have been guilty of fostering tyranny of the majority – especially the white communities in the South.

How are Supreme Court judges appointed, and is the process so politically controversial?

• The President nominates a candidate
• The Senate Judiciary Committee holds hearings to assess the suitability of the candidate, with a range of interested parties having an opportunity to make a contribution to the process
• The full Senate votes, with a simple majority required for confirmation

The fact that the Supreme Court can, and has, used its power of constitutional interpretation to shape public policy, means that everyone has an interest in the views, attitudes and values of the people who are nominated.

However, because Judges are appointed for life and life-expectancy is growing, anyone who is appointed may be helping to shape public policy for 30 years or more.

How do Presidents veto legislation, and how significant is the presidential veto?

The veto is a weapon that Presidents are reluctant to use, because:

• Many bills contain provisions that the President supports as well as provisions he opposes. The veto is a blunt instrument, voiding all provisions
• Using the veto too often creates an impressions that the President in inflexible and unable to reach compromises
• Also, if a bill has sufficient support in Congress, a veto can be over-ridden

On the other hand, the veto may be useful to the President, because:

• The White House can use the threat of a veto in negations with Congress while a bill is going through the legislative process
• Also, with a high proportion of bills not completing passage until the end of Congressional sessions, the President may use the pocket veto that cannot be over-ridden

How significant is the role of political parties within Congress?

Members of Congress often put local considerations ahead of ideology and party loyalty, especially in the House of Representatives who face re-election every two years. However, in a variety of ways party plays a significant role, including:

• Members can be most effective when they chair committees and this can only be done if their party holds the majority of seats in the chamber
• Also, each of the past three speakers of the House of Representatives have had a strong, overt, ideological agenda
• When Congress and the White House are controlled by the same party, oversight tends to be less rigorous
• An ever-increasing proportion of votes are along party lines. For example, President Obama’s stimulus package got no votes from Republicans in the House and only three in the Senate

What has been the effect of appointments to the Supreme Court since 2005?

Relevant points include:

• in recent years, two Supreme Court judges have been appointed by President Bush and two by President Obama
• the court has been divided for some time into two competing ideological blocs and three of the four appointments – John Roberts, Sonia Sotomayor and Elena Kagan – were ideological ‘like for like’s and so far have not significantly changed the ideological balance of the court
• the appointment of Samuel Alito was arguably the most significant, since, as a judge with a solidly conservative track record, he took the place of the then ‘swing justice’ Sandra Day O’Connor
• some decisions of the Roberts court, e.g. Boumediene v. Bush, could be seen as centrist but, arguably, the general direction of the court has been to the right, particularly in the areas of rights of corporations, e.g. Citizens United, and gun rights, e.g. Heller and McDonald
• Justice Kennedy has assumed the status of the ‘swing justice’

To what extent are parties the most significant influence on voting in Congress?

There are a number of different influences on voting in Congress:

• as the parties have become more polarised, party leaderships in Congress have exerted increasing influence on their members
• members of Congress are very willing however to vote against their party if they believe a vote against will be more favourably received by their constituents
• the executive branch will attempt to persuade members of both parties to support the administration’s proposals
• pressure groups, especially those who have contributed to campaign funds, will make their views known on issues which concern them
• members of congressional caucuses may vote the same way

What are the most significant factors that influence a President when choosing the Cabinet?

Presidents will have a variety of motives in selecting their cabinets. They may aim to:

recruit policy specialists

• build links with Congress through the appointment of serving congressmen and senators
• bring trusted advisers into government
• strengthen links with key racial groups and with women
• represent different wings of the party and different regions of the country

President Obama could be seen to want to:

• bury campaign divisions through the appointment of Hillary Clinton as Secretary of State
• send a message of bipartisanship through the retention of Robert Gates at Defense
• make his Cabinet ‘look like America’ through the appointments of, e.g., Eric Holder Steven Chu, Hilda Solis and Eric Shinseki

To what extent has federalism been eroded as a constitutional principle?

Evidence that federalism has been eroded includes:

• since the constitutional convention of 1787, the model of dual federalism it is usually thought to have created has been undermined by the increasing power of the federal government
• despite the detailed provision of congressional powers in article one, and the reservation of all other powers to the states by the tenth amendment, the ‘necessary and proper’ and the ‘provide for the … general welfare’ clauses have given this process constitutional sanction
• it was most marked in the periods of the New Deal and the Great Society program
• the eight years of the Bush presidency saw the further expansion of the federal government and the imposition of federal demands on the states through such measures as No Child Left Behind and the Real ID Act
• the Obama administration has expanded the scope of the federal government through the health care insurance mandate, and has sought to restrict state power, e.g. in its legal action against Arizona

Evidence that federalism has not been eroded includes:

• New Federalism attempted to reverse the trend towards the dominance of the federal government over the states.
• increased use under successive presidents from President Nixon onwards of financial measures, such as block grants and general revenue sharing, gave greater independence to the states
• during the 1990s the states benefited from a rising economy and an influx of tobacco money; several states introduced innovative social measures which suggested a revival of confidence in their role

What is the ‘separation of powers’? Does it help or hinder the US system of government?

Definition:

• the separation of powers is the separation of the legislative, executive and judicial functions of governments
• the US system is commonly held to exemplify the separation of powers, although the extensive checks and balances created by the constitution has diluted the degree of separation and led to the system being described as ‘separated institutions sharing powers’
• most significant for the operation of the system is the separation of personnel, meaning no individual can be a member of more than one branch

Consequences:

• the separation of powers is a safeguard against tyranny as no individual or group is able to dominate the political system through control of more than one branch
• it has the consequence that members of Congress are not elected on a joint mandate as members of a prospective government, as would be the case in a parliamentary system, but to represent the interests of their districts and states, and on a separate mandate from the president
• arguably this is a hindrance, as the president only has limited influence over Congress, and this creates the potential for gridlock and contributes to the weakening of parties
• arguably it is a positive, since legislation is the product of compromise and consensus and it is therefore better founded than, for example, legislation whipped through the House of Commons
• the weakness of parties creates more opportunities for pressure groups to exercise influence
• a separated judiciary is able to keep an effective check on both the other branches

What is meant by ‘pork-barrel politics’, and what is its significance in Congress?

‘Pork barrel politics’ is the obtaining by members of Congress of as many federal benefits as possible for their district or state, principally to aid their own re-election.

It can be argued to be significant as it contributes to:

• the very high rate of incumbent re-election
• the shaping of congressional careers, as congressmen will look for assignments on committees which offer the most pork-generating opportunities
• sprawling and incoherent legislation
• the neglect of the national interest at the expense of the local
• growing government debt

Explain the ways in which the Constitution seeks to prevent the ‘tyranny of the majority’.

Among the features of the constitution which seeks to prevent the tyranny of the majority

are:

• originally both the Senate and the president were not elected by popular vote
• the separation of powers makes it difficult for one group, however large, to dominate the political system
• checks and balances in the system ensures that no single institution can dominate the political system
• federalism reserves significant powers to the states
• the Bill of Rights guarantees individual freedoms
• the constitutional amendment process requires ‘super-majorities’ in both Congress and the state legislatures
• an appointed Supreme Court is responsible for interpreting the constitution

How important is the role of the Vice President?

Among the ways the role of the vice-president may be seen to be important are:

• ‘balancing the ticket’ in elections
• providing experience or expertise
• taking responsibility for specific areas of policy
• acting as a congressional liaison
• ‘attack dog’ – criticising opponents more forcefully than the president is able to
• standing in for the president
• cheerleader – taking the lead on potentially unpopular policies

Arguably, the role of vice president reached a new level of importance during the tenure of

Dick Cheney, principally because of President Bush’s relative inexperience in a number of key

areas; Joe Biden has assumed an increasingly high-profile role as vice-president, but is unlikely to match the extent of Cheney’s influence.

In what ways is the independence of Supreme Court Justices protected?

Among the ways in which the independence of Supreme Court justices is protected include:

• the separation of powers means that the judicial function is vested solely in the court, and it is consequently free from political interference in its decision-making
• justices are appointed not elected
• the two stage appointment process of nomination by the president and confirmation by the Senate reduces the possibility of overtly political appointments
• justices’ salaries cannot be reduced during their period of office
• justices have lifetime tenure and can only be removed by impeachment
• impeachment is the responsibility of both houses of Congress, making politically motivated impeachment less likely to succeed

How and why is federalism enshrined in the Constitution?

Federalism is the separation of the structure of government into two more or less autonomous layers, and the powers of each are entrenched in the constitution. The term ‘federalism’ is not mentioned in the constitution, but the role of the states in US government is established in the constitution principally by:

• equal representation of each state in the Senate
• the Electoral College for electing the president
• state boundaries cannot be changed without states’ consent
• the constitution can only be amended with the consent of ¾ of the state legislatures
• the tenth amendment reserves to the states all those powers not explicitly delegated to the central government

The framers of the constitution wished to establish a political system which protected the role of the states, as the founders of the new country, and to create a central government strong enough to pull the country together into a functioning whole. Thus, both were granted significant powers within a federal system.

Assess the constraints on the President’s role as commander in chief.

Article 2 of the constitution gives the president the role of the commander in chief of the US armed forces.

The constraints on the president in this role include:

• only Congress can declare war, or authorise the president to deploy armed forces; war has however only been declared five times since 1787, and the timing of congressional authorisations may be manipulated by the president, e.g. the vote on action against Iraq shortly before the 2002 midterms.
• this relationship was confirmed by the War Powers Act, which however has not yet been used to curtail military action
• Congress has sole power of the purse, which it may however be reluctant to exert
• as a civilian, the president is dependent on advice from the chiefs of staff, and may additionally receive conflicting advice from different parts of the foreign policy bureaucracy
• public opinion, or the anticipation of public reaction
• pressure groups
• occasionally the Supreme Court may intervene, as in Youngstown

Why do only a small percentage of bills introduced into Congress become laws?

The reasons only a small percentage of bills introduced into Congress become laws include:

• the Senate and House are equal in legislative power and neither can impose its will on the other
• the relationship between them is likely to be particularly strained if they are under the control of different parties
• Congressmen and senators are resistant to centralised leadership and their support for legislation will depend on their perception of its electoral benefit to themselves
• there are multiple blocking points in the legislative process in each house, as well as a conference committee at the end of the process
• the president has the power of veto which it is difficult for Congress to override

Explain the advantages and disadvantages of the process of amending the constitution.

There are two routes to amending the constitution outlined in its Article V, although the second named, the summoning of a constitutional convention by two thirds of the state legislatures, has never been used.

The requirement of the other route, to obtain two-thirds majorities in both the House and the Senate and the approval of ¾ of the state legislatures, is very demanding, and only 27 amendments have passed out of many thousands proposed.

Advantages include:

• the principles of the constitution are safeguarded from short-lived popular sentiment
• the fact that 27 amendments have passed shows that amendment is possible
• it works – the US constitution is the world’s oldest functioning example

Disadvantages include

• the constitution can become ‘fossilised’ and reforms many regard as desirable – e.g. to Senate representation and the Electoral College, or additional rights, such as the Equal Rights Amendment – are near impossible to achieve
• the difficulty of updating the constitution has encouraged the Supreme Court to assume this role
• there are uncertainties in the procedure, e.g. the length of time required to secure a ¾ majority of the state legislatures, or whether states are permitted to rescind their ratification

To what extent have Supreme Court justices reflected the political views of the presidents who nominated them?

Supreme Court justices are not politically neutral in the UK sense; some, such as William Rehnquist, were active in party politics prior to their nomination, and others, such as Elena Kagan, have at least served in a presidential administration. Those who have served as judges prior to nomination such as Samuel Alito usually have a track record of judgments which identify them as conservative or liberal on important constitutional issues.

Given that the general direction of their political sympathies in significant areas is established, it is unsurprising that presidents nominate potential justices whose views are known to correspond to their own. President Bush will have been aware of the reputation of his two nominees, Samuel Alito and John Roberts, as conservatives, and in judgments such as Carhart, Heller and Citizens United, they have lived up to it. Supreme Court justices will sometimes though only partly reflect the political views of their nominator:

• presidents have to take a variety of factors into account when nominating a justice, not only ideology; in particular they need to take account of the acceptability of any potential nominee to the Senate
• justices and presidents may be broadly in sympathy but are unlikely to share identical views on every issue; even justices as closely aligned as Antonin Scalia and Clarence Thomas do not always vote the same way
• once they are on the court, justices are free agents and may leave their pre-confirmation reputation behind; David Souter, the so-called ‘home run’ for conservatives, is the best known recent example                                                                                                                                      

What are executive orders, and how significant are they for presidential power?

Definition:

• executive orders are instructions to the federal bureaucracy, giving guidance on how the president wishes legislation to be implemented

Significance:

• executive orders are not mentioned in the constitution and the scope of their use is defined by convention; critics allege that they are increasingly used by presidents not to facilitate the implementation of existing law, but to create new law, usurping the role of Congress
• recent policy change enacted by executive order includes the imposition (by President Bush) and subsequent repeal (by President Obama) of restrictions on stem cell research
• executive orders can be nullified by congressional legislation or judicial intervention but both are uncommon
• however, executive orders may give a president less power than equivalent congressional legislation

To what extent are the two chambers of Congress equal in power and influence?

In their most important role of legislating, the two houses are equal in power. A two thirds majority is required from both houses to override a presidential veto and to initiate a constitutional amendment. Both have a role in the impeachment process and votes are required in both houses to declare war. The House of Representatives has the exclusive power to begin the consideration of money bills and, should there not be an overall majority in the Electoral College, it has the power to elect the president, whereas the Senate elects the vice-president.

The Senate is usually seen, though, as more prestigious than the House of Representatives, because:

• There are only 100 Senators, compared to 435 House representatives.
• Senators have six year terms, compared to the two year terms of the House.
• The Senate’s exclusive powers are more significant, especially the ratification of treaties and the confirmation of presidential nominees.
• The frequent use of the filibuster and the consequent need for a 60 vote ‘supermajority’ mean that the passage of legislation is more problematic than in the House, and gives senators of both parties a degree of leverage. The loss of the Democrats’ supermajority, after the special election in Massachusetts in January 2010, meant that Democrats in the Senate were able to exert more influence over the final shape of health care reform than their colleagues in the House.
• It is not uncommon for representatives to seek to become senators, but next to never the other way.
• Serious congressional presidential and vice-presidential candidates have almost always come from the Senate, e.g. Obama, Biden and McCain.

How effectively do the three branches of the Federal government check each other?

The system of checks and balances was framed to ensure that each branch depends on the others to carry out its functions, and none can become too powerful.

Evidence that the checks are too weak to be effective includes:

• The growth of judicial review has meant that the Supreme Court exercises almost uncheckable power over a wide range of public policy.
• The president has exploited his role as commander in chief to effectively take over Congress’s power to declare war.
• Unified party control of the White House and Congress can lead to high levels of co-operation, e.g. the period of Republican control in 2002-06.
• The president can circumvent Congress through executive orders, executive agreements and recess appointments.
• The president can distort the intent of Congress through signing statements.

Evidence that the checks are too strong to be effective includes:

• Gridlock can occur when the presidency and Congress are controlled by different parties, e.g. the government shutdowns of 1995-96.

Evidence that the checks are effective includes:

• The constitution has worked for over 200 years and has only been amended 27 times.

What is the role of Committee Chairmen in Congress, and why have they been the subject of criticism?

Committee chairmen in the House of Representatives have traditionally been extremely powerful. They are able to:

• pigeonhole bills, blocking their further progress
• substantially rewrite bills
• actively work with other members of the committee to promote a bill

They have been criticised because, in the past, their appointment through seniority meant they have been able to run their committees as independent fiefdoms, for the benefit of themselves, their constituents and groups supporting them, and to disregard party and national interests. They may become one corner of an iron triangle.

However, since 1994, successive Speakers have moved to restrict the power of committee chairmen by:

• imposing term limits
• disregarding seniority in appointment and rewarding party loyalty
• intervening directly in the committees’ proceedings to secure the outcome they want

In the Senate, the tradition of unrestricted debate, the ability of a minority to block the passage of legislation and a more collegial atmosphere mean that chairmen have traditionally been less dominant than their House counterparts. Nevertheless, committee chairmen are still able to exercise significant influence, as was seen in the role of chairmen such as Max Baucus during the passage of the health care legislation in 2009-10

How much influence does the President have over the legislative process?

• The president attempts to set the legislative agenda for the year in the State of the Union address, and usually proposes the bulk of the most significant legislation each year.
• The extent of the president’s influence over the legislative process depends on party control of Congress; if both houses of Congress are controlled by the opposing party to the president, Congress may well be resistant to his proposals, and the opposing party’s leadership may even try to take the legislative initiative itself, as happened after the election of a Republican Congress in 1994.
• High poll ratings give the president increased authority and create a political cost for congressmen in opposing a popular president; conversely, poor ratings will weaken the president’s authority and impose no costs on congressional opposition.
• A first term president will almost always have more influence than a second term president, and a second term president’s influence will usually suffer a further decline after the mid-terms.
• The extent of the president’s influence will depend on his success in exercising the ‘power to persuade’; as well as using the White House staff, the president may become involved in the process personally, e.g. President Obama reportedly took some undecided representatives on Air Force One to press his case for health care reform. He can also use the presidential ‘bully pulpit’ to pressure Congress via public opinion, e.g. by using the weekly radio and Internet address, and it has become a standard technique for presidents to take policies ‘on the road’ to generate support and show personal commitment to the cause.
• At times of national emergency, Congress is likely to accede to anything the president wants, e.g. the very broad resolution passed in the wake of the attacks of September 2001.
• In extremis, the president can threaten to veto bills, although this can of course be over-ridden, and may in any event be counter-productive. President Clinton famously promised in the 1994 State of the Union to veto any bill which did not guarantee health coverage for all Americans, and no bill ultimately emerged from Congress at all.

Why is the issue of the composition of the Supreme Court so controversial?

The composition of the Supreme Court is controversial because of:

• the power it exercises in modern day America. The constitution means what the court says it means, and this has given it effective control over many areas of public policy.
• the life tenure of justices, which means a president’s influence can persist many years after he has left office.
• the recent polarisation of the court into closely matched liberal and conservative blocs, which has had the consequence that the appointment process has become highly politicised, and each nomination to the court is accompanied by intense lobbying, both for and against.
• the desire of minority groups and the various regions of the country to see one of their own on the court. An aspect of Elena Kagan’s nomination which has attracted comment is that her confirmation would result in there being three Jews and three natives of New York on the nine-member court; some argue that, as an unelected body, it is important for the court’s legitimacy that it is representative of America.