PSC 105

American Government

Final Exam Fall 2021

Lauren Cole

Citing text and material respond to each with a 500–800-word essay integrating the key terms

and concepts (25 points each)

1. According to Harrison, how do the Courts make law? Discuss judicial policymaking with

respect to following:

a) Explain why courts make policy

b) Explain Judicial Review

c) Compare Judicial activism and Judicial restraint

d) Compare originalism and the Constitution as a living document

e) Discuss the constraints on judicial policy making (Chapter 15)

Legislative statutes Executive Orders

Common Law Criminal Law

Adversarial judicial system Judicial Review

Discretionary Jurisdiction Judicial Competence

Amicus Curiae brief Writ of Certiorari

Concurring opinion Stare Decisis

Harrison, Brigid C., Jean Harris, and Michelle D. Deardorff. American Democracy Now.
New York, NY: McGraw-Hill Education, 2012.
Judicial Activism Dissenting Opinion

Marbury v. Madison

Lawmaking functions are set in place to ensure and establish judges as public

policymakers. Courts make common law and criminal laws by deciding cases and establishing

legal principles that guide future litigators and judges, as well as by interpreting the Constitution

and adjusting it as humanity changes to keep its full effect (Brigid 487). The court case of

Marbury v. Madison was a significant advancement in the court’s system and the way that courts

determine what is constitutional, in a process called judicial review. Judicial review is in place

because of the separation of powers within the current governmental system. It is used by the

judiciary branch and is an important check on the other two branches.

Judicial activism and judicial restraint are two of the ways that judges can express

judicial review in courts. Judicial activism is the court’s willingness to strike down laws made by

elected officials as well as to step away from past precedents, thereby creating new laws and

policies (Brigid 488). Judicial restraint is the limiting of a judge’s power by themselves; the

judges who practice judicial restraint believe that the judiciary should not check the powers of

democratically elected legislative and executive branches, unless the actions clearly and plainly

oppose the Constitution (Brigid 489).

Originalism is when a judge rules according to the Constitution as it is written, with little

or no interpretation using modern concerns. Originalism takes the Constitution as it is written at

the time it was written and the culture in which it was written and passes judgment based on

those words. Others view the Constitution as, ultimately, a living document. Living documents

change as society progresses so that outdated rulings are passed down. Judges that believe in the

living Constitution read the Constitution and apply it to the ever-changing culture that is today.

Harrison, Brigid C., Jean Harris, and Michelle D. Deardorff. American Democracy Now.
New York, NY: McGraw-Hill Education, 2012.
 Some constraints on judicial policymaking are checks and balances, public

accountability, and internal constraints. Checks and balances are in place to keep each branch in

line and prevent abuse of power. The opinion of the public has a distinct hold on the court

system. This is called public accountability. Since the public holds the courts to such high

accountability, the courts will most likely rule somewhat close to what the general public agrees

with even if it’s not the exact same. There are also internal constraints when it comes to judges

and justices. Internal constraints set limitations through the common law doctrine of stare decisis

(Brigid, 490). Stare decisis is the legal way of determining points according to the precedent.

Harrison, Brigid C., Jean Harris, and Michelle D. Deardorff. American Democracy Now.
New York, NY: McGraw-Hill Education, 2012.
2. According to Harrison, what are the Sources of Presidential Power? Which powers are derived

from the Constitution? What has been the role of women in the White House i.e., First Lady?

(500 words Chapter 13)

Approval ratings Executive Order

Articles of impeachment Inherent Powers

Executive agreement Press Secretary.

Executive privilege Office of Management and Budget

Imperial presidency Statutory Powers

Watergate Emergency Powers

National Security Advisor Chief of Staff

There are four main sections of presidential power. The main source of presidential

power comes from the Constitution with expressed powers. These expressed powers are outlined

in the Constitution, specifically in article two, sections two and three. A few examples of these

expressed powers are to serve as commander in chief of the armed forces, pardon crimes except

in cases of impeachment, enter into treaties, give the State of the Union address to the Congress,

and convene the Congress, just to name a few. These powers outline the responsibilities of a

president’s power and mold how a president develops their authority. There are also inherent

powers. These are additional powers that are not expressed in the Constitution. Examples of

inherent powers are the take care clause and Thomas Jefferson’s Louisiana Purchase. The

expressed powers and inherent powers in the Constitution lay a foundation for the presidential

powers, and they evolve over time. These powers can be supplemented by other powers; for

example, statutory powers. Statutory powers are granted to presidents by actions from Congress

Harrison, Brigid C., Jean Harris, and Michelle D. Deardorff. American Democracy Now.
New York, NY: McGraw-Hill Education, 2012.
exclusively. Finally, presidents also have special powers that evolve from many different sources

like the Constitution and Supreme Court decisions. There are three main sections of special

powers that are exercised: executive orders, emergency powers, and executive privileges. These

executive orders have the force of law when issued. They have only a few limitations, but one

thing that presidents can absolutely not do is use them to make new taxes or appropriate funds.

The Constitution reserves the powers for those specific things for Congress. Mainly, executive

orders direct the enforcement of congressional statutes or Supreme Court rulings, enforce

specific constitutional provisions, guide foreign treaty administration, and change or create

guideline regulations. Emergency powers are another form of special powers. These powers are

broad; presidents utilize these powers during times of national crisis. Lastly, there are executive

privileges. This is the authority of a president and other executive officials when they refuse to

disclose information that regards confidential topics or national security to the courts or

Congress. When executive privilege is used, the idea is that the Constitution justifies withholding

of specific information from the judiciary or Congress.

It is no secret that women have it hard when running for political jobs or jobs of high

power, and the White House is no exception. The executive branch is known for being especially

hard for women to enter. The position of the presidential spouse is high defined by people who

have previously occupied it (Harrison, 429). The role varies depending on who is currently

serving as the First Lady: some choose to be very public while some may choose to work from

more behind the scenes. Hilary Clinton was a significant development in what a First Lady could

or would do. She worked on her husband’s presidential task force of health care reform by acting

as the chair (Harrison, 429). Other First Ladies, such as Laura Bush or Michelle Obama, choose

to be more private and reserved. This does not mean they don’t do much, Bush made strides to

Harrison, Brigid C., Jean Harris, and Michelle D. Deardorff. American Democracy Now.
New York, NY: McGraw-Hill Education, 2012.
improve reading and libraries while Obama took on the issue of childhood obesity by bringing

attention to the issue using her status.

Harrison, Brigid C., Jean Harris, and Michelle D. Deardorff. American Democracy Now.
New York, NY: McGraw-Hill Education, 2012.
 3. How does American bureaucracy support American democracy? According to Max

Weber, what are the advantages of a well-structured bureaucracy? What is the nature and the

scope of the work of bureaucrats? According to Harrison.et.al., Who holds bureaucrats

responsible and how should they be held accountable?

Civil Servants Senior Executive Service

Administrative rulemaking Sunset Clause.

Administrative discretion Shadow Bureaucrats

Conflict of interest Government Corporation

Patronage system Appropriation law

Red Tape Whistleblower

Before the Federal Civil Service System was in place, presidents had the authority to hire

bureaucrats, also known as civil servants. Presidents could choose whoever they wanted and

whatever qualifications they wanted. This was done using the patronage system of hiring, in

which many candidates would appear in front of the president after each election in hopes of

getting a job. In 1978, the Civil Service Reform Act was instituted that led to the creation of the

senior executive service(Harrison, 455). A senior executive service is a bureaucrat hybrid of the

political appointee and the civil servant, where 90% of these senior executive service employees

are hired based on merit through an open competitive process. National bureaucracy employs

approximately 4.2 million public servants, 2.7 million civilian bureaucrats, and 1.5 million

uniformed military personnel (Harrison 454). They work to meet the goals established in the

preamble of the Constitution: establish justice, insure domestic tranquility, provide for the

common defense, promote the general welfare, and secure the blessings of liberty to all people

Harrison, Brigid C., Jean Harris, and Michelle D. Deardorff. American Democracy Now.
New York, NY: McGraw-Hill Education, 2012.
and future generations. To assist in policy implementation, bureaucrats are given administrative

discretion, rulemaking, and adjudication. Administrative discretion is given by Congress and the

president to determine the best way to implement the policy. Administrative role making is when

upper-level bureaucrats use their administrative discretion to make regulations, rules, and

standards that they can enforce. Beauracrats have the authority to determine if there's a violation

of their rules and invoke penalties on the people that violate those rules, this is called

administrative adjudication.

Since the president and Congress are the creators and funders of bureaucracies, they can

threaten to do many things in order to keep them in line; for example, they can threaten to

decrease funding or eliminate any bureaucratic organization. Bureaucracies aren't just held

accountable by people in high power though, ordinary citizens also keep a close eye on

bureaucracies. Laws such as sunshine laws open the government's activities and documents to

the public enforcing the public's right to know about the government's actions and

decision-making. The main downside of sunshine laws is that they are only effective if the

citizens know about them and know enough to take advantage of them.

Bureaucrats are also held accountable by the courts. Through the litigation process, the

U.S. judicial system ensures that bureaucrats and bureaucracies comply with the law (Harrison

456). Lawsuits can be filled if anyone or any group believes that a bureaucrat or bureaucracy

violates a law. Bureaucrats rely on Congress heavily; they always have to keep Congress in mind

when doing anything since they have so much power over the bureaucracy, so this means that

Congress holds bureaucrats and bureaucracies accountable as well. Congress monitors policy

implications from bureaucracies and will cut its budget or modify its legal authority if the

bureaucracy does anything that the president or congress is dissatisfied with. Similar to the way

Harrison, Brigid C., Jean Harris, and Michelle D. Deardorff. American Democracy Now.
New York, NY: McGraw-Hill Education, 2012.
in which Congress and the president can use the legislative process to ensure accountability, this

can be done by vetoing or approving certain bills.

There's also internal accountability among bureaucrats. Legislative codes of behavior,

whistleblower protections, and inspectors general help foster accountability from within

bureaucracies (Harrison 458). Whistleblowers can be bureaucrats or private parties that disclose

government misconduct and threats to public health or safety. There are also watchdogs, referred

to as general inspectors, who are appointed by presidents and help monitor policy information

and investigate alleged misconducts.

Harrison, Brigid C., Jean Harris, and Michelle D. Deardorff. American Democracy Now.
New York, NY: McGraw-Hill Education, 2012.
4. What are the major differences in the lawmaking process between the House and the Senate?

According to Harrison, how do committees help Congress do its work?

Iran- Contra Concurrent Resolution

Watergate Roll Call Vote

Seniority Filibuster

Sample Bill Pocket Veto

Ways and Means Cloture

Subcommittee Floor Debate

Oversight Hearings

Standing Committees

Ad Hoc

Investigation

Both the House and the Senate are major contributors to the lawmaking process;

however, though they are both major contributors, that does not mean that they are the same. One

of the ways to vote is called the roll call vote, where US Congress House floor votes are put

through an electronic voting machine by the House tally clerks. The Senate normally votes using

a three-fifths majority, or around 60 votes in favor. Senators are elected by the population of an

entire state and show the range of political views in each state, even though some states might

have similar ones. When the House decides to vote, they have major party leaders control the

priority of the different policies and determine which bills go to the House floor to be debated.

Contrary to the Senate, the House has 435 current members and represents legislative districts

Harrison, Brigid C., Jean Harris, and Michelle D. Deardorff. American Democracy Now.
New York, NY: McGraw-Hill Education, 2012.
that are determined by a reappointment and redistricting process that occurs every 10 years. The

House has many different subcommittees, like the Ways and Means committee, that help oversee

bills.

When a bill is presented by its various committees, it is discussed on the floor of either

the House or the Senate and then goes into voting. The terms of service for both representatives

and senators are different, and it can affect how members of each chamber of Congress relate to

their constituents (Harrison, 457). Both the House and the Congress must pass any piece of

legislation before it can become a law, but the way that legislation is considered and voted on is

different in both chambers. Since the House of Representatives is larger, with its 435 members,

they need a more formal legislative structure to help prevent unruliness in the House. The House

typically has more formal and straightforward rules than in the Senate. Aside from this, the

legislative process is relatively similar in both the House and the Senate. The legislative process

usually starts with introducing the bill and then goes to subgroups within the House and the

Senate who have expertise in the topic to review the bill. If or when the bill makes it out of the

committee, it must be approved by a majority of members in both the House and the Senate. The

bill then goes to the conference committee and gets reconciled.

The bill reaches cloture if there is a ⅗’s vote; if the president signs the bill then it becomes

law, but even after this process, a president can still veto the bill if they want to. If the president

does not sign a bill, it will typically become law after 10 days as if they have signed it, but in

some instances, a pocket veto can occur. A pocket veto occurs when a bill fails to become a law

becausethe president does not sign it within 10 days and the bill cannot be returned to Congress

because Congress is no longer in session. On occasion, Senators will try and prolong the debate

for the vote or block it completely, this is also referred to as a filibuster.

Harrison, Brigid C., Jean Harris, and Michelle D. Deardorff. American Democracy Now.
New York, NY: McGraw-Hill Education, 2012.