American Government Lecture Four

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Review

In our prior lectures we discussed our three branches of government at the federal (national) level, as established by the U.S. Constitution. Article I for the legislative branch (Congress), Article II for the executive branch (the president), and Article III for the judicial branch (the courts). Which branch employs the most people? The executive branch, by far: it employs millions of workers, including the entire military. The other two branches employ only a few thousand each. At the state level, there are also executive, legislative and judicial branches of government, but without the strict separation of powers required by the U.S. Constitution at the federal level. Keep in the mind that the federal and state governments are independent systems, having no direct connection with each other.

In this lecture we return to the executive branch, which is timely because our Nation will soon select the next president. Some are already voting due to "early voting." Indeed, nearly half the Nation may vote early, prior to Election Day. Some states (such as Oregon and Colorado) have far more early voting than other states.

Mitt Romney has been trailing the incumbent Barack Obama in most polls, but Romney did much better than Obama in their first presidential debate last Wednesday. Polling after that debate indicated that Romney received a four-point "bounce" due to his strong performance in the debate. The Reuters poll showed Romney trailing Obama by only 44% to 46% as of Friday, March 5. Some observers feel that as long as Obama is below 50% in polls, then he is likely to lose because undecided voters typically tend to vote against an incumbent.

Notice how important the media are in connection with the presidential debates. The media ask the questions of the candidates; the media broadcast the debates to the American public; and the media provide an analysis of the debates for the millions of Americans who do not actually watch them. The media "spin" the news in a way that they like. For example, even though Americans felt that Romney defeated Obama by an enormous margin of 67%-25% (according to a CNN poll), newspapers like the USA Today ran headlines the day after the debate implying that it was roughly a tie between the candidates.

Congress has adjourned until after the upcoming election. But it may reconvene post-election to consider and pass legislation. If so, that will be called a "lame duck" Congress because it will include many congressmen who were defeated in the election, or retired. The newly elected congressmen (and president) do not take office until January of the following year. "Lame duck" sessions of Congress can be very harmful because it is unaccountable to the voters, and many congressmen tend to act in self-interest rather than what the voters want.

The Presidency

The president is not a king. His powers are limited and enumerated. He lacks a special title, and is called simply “Mr. President.” Under the 22nd Amendment, the president may not be elected more than two terms. In the past 50 years, only three presidents have even served two full terms (Reagan, Clinton, and George W. Bush).

The president has influence in several ways. Everything he does affects the positions and fortunes of his own political party, Republican or Democrat.

The president is commander-in-chief of the military. He controls its operations, and supervises its conflicts with foreign militaries. After Congress declares war (and even when it does not), the president makes the decisions about where American troops go. President Lyndon Johnson would personally review and make decisions about daily bombing runs in Vietnam. President Lincoln was hiring, firing, and ordering generals during the Civil War.

The president is responsible for all foreign policy. He appoints the ambassadors, and decides what treaties to negotiate and sign. But 2/3rd approval by the Senate is required for any treaty to become law. The North Atlantic Free Trade Agreement (NAFTA) established so-called “free trade” between the United States and Mexico and Canada. President Clinton bypassed the requirement of Senate approval by arranging for a "lame duck" Congress to pass the treaty directly into federal law. Why do you think he did that? (Answer: it only requires a majority to pass a law rather than 2/3 in the Senate to ratify a treaty).

The president also has legislative authority in signing or vetoing new laws. If the president’s political party is in control of Congress, then he has implicit control over its agenda too. The president typically submits a budget each year for Congress to pass in order to pay for the operations of the government and all its programs. Typically Congress will add spending to that budget and include it in one massive bill for the president to sign. An attempt to give the president "line-item veto" authority to strike out certain spending items was held to be unconstitutional. But at the state level, where there is not a strict separation of powers, "line-item veto" authority does exist in many states.

The president also has the power to make appointments, particularly to the judiciary. He nominates new judges, especially those needed to fill vacancies on the Supreme Court. These judges can serve for the rest of their lives, and thus can hold power for more than 30 years.

Leader of the Executive Branch

The president supervises the executive branch, and fills thousands of positions in the numerous federal agencies. Senate approval is required for the highest positions, such as the "Cabinet" officials who directly advise the president.

When George Washington was president, there were only three Cabinet officials: State, War (now Defense), and Treasury. But as the federal government has expanded over the past 223 years, so have the number of positions. There are now 15 Cabinet officials, and confirmation of appointments by the president is required to these positions. Typically the president fills these positions with members of his own political party; usually they are governors, former governors, or senators who were defeated for reelection. If Mitt Romney wins the presidency this year, then he would likely nominate Chris Christie to the Cabinet-level position of Attorney General, and perhaps Rick Santorum to the Cabinet-level position of the Secretary of Health and Human Services. Each position in the Cabinet corresponds to the head of an administrative agency in the Executive branch.

One reason the presidential election is so important is because the winner then chooses leaders for each of the federal departments.

Executive Office of the President

The Executive Office of the President consists of the president's immediate staff at the White House and adjacent office building. This includes:

• the White House
• the Cabinet
• the National Security Council
• the National Economic Council
• the Office of Management and Budget
• the Council of Economic Advisers
• the Council on Environmental Quality
• the Domestic Policy Council
• the Office of Administration
• the White House Military Office

These offices are not agencies, but are considered part of the president's own staff.

Executive Orders

Presidents have increasingly used "Executive Orders" in an attempt to create laws without Congress. President Obama coined a slogan "We Can't Wait" to emphasize how he would issue legal requirements by Executive Order when Congress declined to enact a law that he wanted.

Like much of what you will read in this week's lecture, there is no specific authorization in the Constitution for the president to issue an Executive Order. Critics of them say they are unconstitutional, or have no force of law, but presidents insist they can do this under the constitutional provision authorizing them to "take Care that the Laws be faithfully executed."

Presidents have promulgated Executive Orders to confiscate gold, deny Americans their rights of habeas corpus, and require physicians to provide a translator at the the physicians' own expense for any patients who may not understand English. The internment of the Japanese Americans during World War II was done by Executive Order. Two Executive Orders (but not the internment order) have been invalidated by courts in our Nation's history. Others have not been fully enforced due to their dubious legitimacy.

Federal Agencies

The day-to-day power of the federal government is in its numerous "agencies", or departments. These agencies, all located in the Executive Branch, handle many types of disputes before they become lawsuits. The Department of Education hears complaints about violation of federal law in public schools; the Department of Labor hears labor disputes, including alleged discrimination; the Department of Health and Human Services handles the massive federal health care spending. Each of the 15 federal agencies, including the new Department of Homeland Security, have responsibilities that grow over time.

These departments employ thousands of people. At the top of each department is a "Secretary", a word that does not have its ordinary meaning. The "Secretary of State" is the leader of the State Department.

A president's "Cabinet" includes the leaders (Secretary) of each of the departments. The president nominates the Secretary for each Department, and he is confirmed or rejected by the Senate. The president may fire a Secretary if unhappy with his work, but that rarely happens.

Many of these agencies affect individuals, and this area of law is known as "administrative law." Many everyday problems concern administrative law at either the state or federal level.

During a Republican presidential debate earlier this year, Texas Governor Rick Perry famously declared that he would eliminate three entire federal agencies if elected president. But after saying that, Governor Perry could name only two out of the three, and am embarrassing pause ensued. Whether this inability was due to forgetfulness or a lack of familiarity with the federal agencies, it did not help his ability to win the Republican nomination. Perry pulled out of the race entirely a few weeks later.

Regulations

Several of the agencies below exert their power over Americans by imposing regulations, or rules, on what Americans can do. Such regulations are adopted pursuant to a "notice and comment" procedure that first gives notice to the public of the proposed regulation, and accepts comments by the public on them. Notice to the public of a new federal regulations is given by publishing it in the "Federal Register," and then providing a deadline for submitting comments, which can often be sent by email.

After receiving the comments, the agency then typically promulgates a final regulation that has the force of law, even though it was never passed by Congress. Final regulations are published in both the Federal Regulations and in the Code of Federal Regulations (C.F.R.). They have the force of federal law.

Some people, particularly in the Tea Party movement, question whether this is even constitutional, but it has been done for more than a century and is not likely to invalidated by the courts, as long as the regulations can cite some basis in a law passed by Congress. The growing field of law that deals with regulations by agency is "administrative law," and thousands of attorneys have successful practices working on these issues.

Here are the major federal agencies under the direction of the president:

State Department

The State Department, or more formerly the "Department of State," is the federal agency that deals with foreign nations and diplomacy. In the first few decades of our Nation's history, the leader of this department (the "Secretary of State") was the most important federal official other than the president. Indeed, holding the position of Secretary of State was a stepping stone to becoming president: most of the politicians who held the position of Secretary of State early years of our Nation later became president.

Thomas Jefferson first served as Secretary of State under President Washington. James Madison served as Secretary of State under President Jefferson. James Monroe served under President Madison. John Quincy Adams did likewise under President Monroe. And so on.

Dealing with foreign countries is a primary responsibility of the President, and the Secretary of State advises him on this. When conflicts arise in foreign nations, the Secretary of State advises the president on how to handle them, and he or she often travels to those countries to try to resolve the conflicts.

At this time, and throughout the Obama Administration, the Secretary of State has been Hillary Clinton, at her request. She thought it would be a good stepping stone to run for president in 2016. She is likely to resign from her position as Secretary of State early next year, in order to begin running for the Democratic nomination for president in 2016.

The State Department was extremely important during the Cold War (1945-1990), and Senator Joseph McCarthy accused Democratic Administrations of allowing the State Department to be infiltrated by communists who were opposed to our freedoms and position of strength in the world.

Perhaps the most famous Secretary of State in American history was William Jennings Bryan, who resigned from his position in protest about how Woodrow Wilson was pushing the United States into World War I. About ten years later Bryan, who was a skilled attorney and orator, won the Scopes Trial to prohibit the teaching in Tennessee of the theory of human evolution.

There are thousands of employees in the State Department to research and analyze what is going on around the world, in order to inform the Secretary of State, who can then then give advice to the president. People who are skilled at foreign languages and knowledgeable about foreign cultures and government are wanted as employees by the State Department. Many State Department employees work in D.C., but some would also work at the United Nations, based in Manhattan, and in embassies around the world. Georgetown University, located in D.C., is a college that has a program specializing in training future diplomats and employees of the State Department.

Defense Department

The Defense Department, or "Department of Defense," was formerly known as the "Department of War." It handles military conflicts. The entire Armed Forces -- Army, Navy, Air Force and Marines -- are in the Executive Branch. Their commander-in-chief is the president, and the Secretary of Defense advises the president on issues relating to the Armed Forces and the use of military force.

Employees of the Defense Department tend to be veterans of the Armed Forces. As technology becomes an increasingly important part of military superiority, engineers and experts at computers or mathematics are also needed by the Defense Department.

Its headquarters is the Pentagon building in D.C., a five-sided structure famous for its unusual shape.

Department of Justice

The Department of Justice (DOJ) is responsible for handling all prosecutions and litigation on behalf of the federal government. Lawyers are the employees of the DOJ.

Originally, the federal government prosecuted very few crimes. Treason was one. Counterfeiting was another. But today, the federal government prosecutes thousands of crimes in all areas of life. Fraud. Accounting deception. Monopolies. Lying to a federal official is a special federal crime. Obstruction of justice is a federal crime, when someone interferes with an investigation. Certain types of murder are now federal crimes. It was the Department of Justice that prosecuted Martha Stewart.

The DOJ also handles thousands of civil (non-criminal) cases each year. For example, it was DOJ that attempted to break up Microsoft’s monopoly.

Unlike state prosecutors, federal prosecutors are not elected. They work under the Attorney General, who is appointed by the president. Federal prosecutors are called U.S. Attorneys and Assistant U.S. Attorneys, while state prosecutors are called District Attorneys. The top state prosecutors are elected, and thus directly accountable to the public. When a state prosecution meets with public disapproval, the responsible district attorney can be defeated at the next election. This check and balance does not exist for federal prosecutions, and many (such has Ron Paul) have been critical of the vast expansion in federal prosecutions.

After 9/11, the George W. Bush Administration (the executive branch while George W. Bush was president) sought and achieved new powers to target criminals under the broad Patriot Act. While nearly everyone favors catching and prosecuting real terrorists, many people (including Ron Paul) opposed the loss of liberty in the War on Terrorism. After all, some point out, it is liberty that we are defending against terrorism in the first place.

One of the disputes revolved around the Fourth Amendment. The Patriot Act reduced the requirements for federal investigators to seize evidence and tape-record calls of alleged terrorists. No longer must a local judge issue a warrant based on a detailed affidavit of probable cause prior to searches of alleged terrorists, broadly defined. Also, federal investigators can now search certain homes without leaving a copy of a warrant so that the owner knows it has been searched. This is known as “sneak and peak,” and many criticized this expansion in federal power.

Environmental Protection Agency

The Environmental Protection Agency, often called the "EPA" for short, was established only about 40 years ago but has quickly grew to become one of the most powerful. Its original purpose was to reduce pollution, and it issued regulations to enforce laws such as the Clean Water Act. The EPA has been credited for reducing the smog in many large cities, which was a major problem in certain areas of the Nation (such as Los Angeles) in the 1970s.

But the EPA has since gone far beyond trying to clean air and water. The EPA limits what people can do on their own land, to the point where it is sometimes a federal crime to chop down a tree or remove some water from private property. The reach of the EPA extends into private property without any real connection to interstate commerce, and several decisions by the U.S. Supreme Court in recent years have held in favor of private property owners against burdensome EPA regulations.

The EPA is now central to the "global warming" debate. <>regulations to limit the pollution that companies can generate.

Department of Health and Human Services

The Department of Health and Human Services (HHS) controls a massive amount of money, because it administers the Medicare system to pay for medical care by people who are 65 years and older. This agency is also one of the most controversial, because its policies affect the taxpayer funding of abortion, and whether abortion is performed in government-owned hospitals.

The Patient Protection and Affordable Care Act (PPACA), more commonly known as "ObamaCare", authorized HHS to develop and impose vast amounts of regulations for health care. Under this law, HHS could establish the notorious "death panels" criticized by Sarah Palin for their ability to refuse to allow medical care for some elderly individuals.

Department of Labor

The Department of Labor handles issues relating to the labor force in America, such as announcing the unemployment rate at 8:30 am Eastern Time on the first Friday morning of each month. This created enormous attention last Friday, October 5th, because the number decreased unexpectedly from 8.1% to 7.8%.

Why was that significant? Because the lower the unemployment rate, the easier it is for the incumbent (President Obama) to win reelection. Mitt Romney and his supporters were not pleased by Friday'a announcement.

There is a federal minimum wage, which the Department of Labor publicizes and requires compliance with by employers.

The Department of Labor, like many other federal agencies, also compiles and produces enormous amounts of data about who does and does not have a job in the United States.

To illustrate George Orwell's observation that "all issues are political issues," some questioned whether last Friday's announced numbers were correct, or the result of political manipulation in order to boost Obama's reelection chances. Alan Krueger, chairman of the White House Council of Economic Advisers, responded by saying that "No serious person ... would make claims like that." But the former Chief Executive Office (CEO) Jack Welsh did make that claim, tweeting on Twitter within minutes of the announcement: "Unbelievable jobs numbers..these Chicago guys will do anything..can’t debate so change numbers. The monthly unemployment rate is based on speaking with about 60,000 American households. The rate does not include people who have given up on looking for a new job.

Commerce Department

The Commerce Department, created as the Department of Commerce and Labor in 1903 (the Labor Department split off in 1913), is primarily devoted to promoting trade with foreign countries. It also regulates some trade within the United States.

Food and Drug Administration

The Food and Drug Administration (FDA) has become one of the most powerful of all government agencies, because it decides which medication will be allowed to be sold, and which ones will not. It has been criticized for delaying approval of life-saving medication, while approving dangerous, harmful medication instead. The FDA is heavily influenced by politics.

For example, the FDA has delayed approval for good adult stem cell therapies, for which the Nobel Prize was just awarded to Japanese and British scientists, and this has forced some American patients to travel to foreign countries in order to receive this therapy for paralyzing injuries and diseases. But meanwhile the FDA has approved abortion-causing drugs to the harm of the unborn child, because there is political pressure by Planned Parenthood and others to promote abortion.

The FDA also has the responsibility to approve the use of controversial new vaccines, which then become requirements for children who attend public school.

Patent and Trademark Office

A unique clause in the U.S. Constitution authorizes the federal government to protect inventors by granting patents that give those inventors exclusive rights for a fixed period of time (usually 19 years) in what they create. The Patent and Trademark Office (PTO) implements this law by accepting applications for patients.

Separately, the PTO also accepts applications for and grants trademarks on names and phrases that are used to describe goods and services in commerce.

National Institute of Standards and Technology

The National Institute of Standards and Technology (NIST) was founded in 1901 to be a non-regulatory agency that establishes scientific standards and seeks to advance technological innovation.

Federal Communications Commission

The Federal Communications Commission (FCC) regulates television and radio, and seeks to adopt regulations for the internet - which many have opposed. With advancing technology, this commission has grown from relative insignificance to become immensely important.

FOIA

The Freedom of Information Act (FOIA) enables a citizen to obtain information from a federal agency by submitting a request over the internet. In 2011, the federal government received more than 640,000 FOIA requests.

This important law can result in obtaining enlightening information about what is really going on behind the scenes. Federal agencies are required to provide emails and other information as requested by ordinary citizens through this process. Can you think of information you would like to make a "FOIA request" for?

Most states also have their own versions of FOIA, but using different names for the law (such as "Open Records Law").

Election

President Harry S Truman would say, “The buck stops here.” The president is accountable for all that he does, and all that the Executive Branch does while he is in charge. The reelection or defeat of the president after his first term will depend not only on what he does, but also on everything else that happens under his “watch”.

When a president is reelected after serving a full term, which happens about 50% of the time now, he then becomes a “lame duck.” That means he loses power because everyone knows he is merely serving out his term and cannot be reelected again (due to the 22nd Amendment). Still, an effective president can accomplish a great deal during his second term. President Reagan, for example, dramatically cut taxes and made his successful demand that the communists tear down the Berlin Wall dividing communism from freedom in Germany.

A president can be elected with less than 50% of the vote, as President Bush was. But no president can be elected with less than 50% of the electoral college. If no candidate can muster a majority of electoral votes, then the election is decided by the House of Representatives. This occurred in the election of John Quincy Adams, and supporters of Andrew Jackson complained bitterly about the process. Four years later, Jackson beat Adams in a landslide. Can you find the constitutional provision dictating how the House of Representatives can choose the next president?

Homework

Answer the first five questions, and then two of the remaining three:

1. Which federal commission has responsibility for issues concerning the internet, and in which federal department is it located? What is your view about whether it should regulate the internet?
2. .
3. President Bush beat Al Gore in 2000 even though Gore won the popular vote, because Bush won a narrow majority of the electoral college. Is that fair?
4. How might the election of Mitt Romney to president this year affect who is governor of New Jersey in 2013?
5. What information would you like to make a "FOIA request" for, and why? Specify the federal agency to whom you would make the request.
6. .
7. .
8. .

Extra credit (answer two of the following four questions):

9. Find a regulation that you would have liked to submit a comment on. What would you have said?
10. .
11. .
12. .

You can post your answers at American Government Homework Four.