Majority Whip: assists majority leader, rounds up votes, heads large group of deputy and assistant whips
Chairman of the Caucus: presides over meetings of all members of the majority party
Steering and Policy Committee: schedules legislation, assigns members of the majority party to committees
2. Republican/Democratic Congressional Campaign Committee: provides funds, advice to Republican/Democratic candidates for the House
3. Minority Party (least representatives)
Minority Leader: leads minority party
Minority Whip: assists minority leader, rounds up votes, heads large forum of deputy and assistant whips
Chairman of the Conference: presides over meetings of all members of the minority party
Committee on Committees: assigns members of the minority party to committees
Policy Committee: advises on party policy
Research Committee: on request, provides information about issues
III. Powers of Congress
found in Article 1, section 8, of the Constitution -
levy and collect taxes, duties, imposts and excises
regulate commerce with foreign nations, among the states and with Indian tribes
establish rules for naturalization (becoming a citizen)
establish rules for bankruptcy
coin money, set its value and punish counterfeiting
fix the standard of weights and measures
establish a post office and post roads
issue patents and copyrights to inventors and authors
create courts inferior to (below) the Supreme Court
define and punish piracies, felonies on the high seas and crimes against the law of nations
raise and support an army and navy and make rules for their governance
provide for a militia (reserving to the states the right to appoint militia officers and to train the militia under congressional rule)
exercise exclusive legislative powers over the seat of government (the District of Columbia) and over places purchased to be federal facilities (forts, arsenals, dockyards and "other needful buildings")
"make all laws which shall be necessary and proper for the carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States"
IV. How a Bill Becomes Law
Introduction: any member can introduce a piece of legislation
House: legislation is handed to clerk of the House or placed in hopper
Senate: members must gain recognition of the presiding officer to announce the introduction of a bill during the morning hour … introduction of bill postponed until next day if any senator objects
bill assigned a number (HR 1 or SB 1)
bill labeled with the sponsor's name
bill sent to Government Printing Office (GPO) to make copies
Senate bills can be jointly sponsored
members can cosponsor legislation
Committee: bill referred to appropriate committee by Speaker of the House or presiding officer in Senate … often actual referral decision made by the House or Senate parliamentarian
bill may be referred to more than one committee
bill may be split so that parts are sent to different committees
Speaker of the House may set time limits on committees
bills placed on calendar of the committee to which assigned
failure to act on a bill is equivalent to killing it
bills in House can only be released from committee without a proper committee vote by a discharge petition signed by a majority of the House membership (218 members)
1. comments about the bill's merit are requested by government agencies
2. bill can be assigned to subcommittee by chair
3. may hold hearings
4. subcommittees report findings to the full committee
5. vote by the full committee: bill is "ordered to be reported"
6. committee will hold "mark-up" sessions during which it will make revisions and additions
... if substantial amendments
are made committee can order the introduction of a "clean bill" which will include the proposed amendments, have
a new number and be sent to floor while the old bill is discarded (chamber must approve, change or reject all committee amendments before conducting a final passage vote)
7. after bill reported, committee staff prepares written report explaining why they favor bill and why they wish to see amendments, if any, adopted … committee members who oppose a bill sometimes write a dissenting opinion in report
8. report sent to whole chamber and placed on calendar
9. House: most bills go to Rules committee before reaching floor and committee adopts rules that will govern procedures under which the bill will be considered, for example, a "closed rule" sets strict time limits on debate and forbids introduction of amendments
10. rules can have major impact on whether bill passes … rules committee can be bypassed in three ways:
(1) a ⅔ vote of members to suspend
rules, (2) file a discharge petition or (3) the House can use a Calendar Wednesday procedure
House: bills placed on one of four House Calendars in the order which reported but don't usually come to floor in that order and some never reach the floor at all
Speaker of the House and Majority Leader decide what will reach floor and when (legislation can also be brought to floor by discharge petition)
Senate: legislation placed on Legislative Calendar … Executive Calendar deals with treaties and nominations
Scheduling of legislation is job of Majority Leader but bills also brought to floor whenever majority of Senate chooses
House: Debate limited by rules formulated in the Rules Committee … Committee of the Whole debates and amends bill but cannot technically pass it. Debate guided by Sponsoring Committee and time divided equally between proponents and opponents. Committee decides how much time to allot to each person. Amendments must be germane to subject of bill - no riders allowed. Bill is reported back to House (to itself) and voted on. A quorum call is a vote to make sure there are enough members present (218) to have final vote. If no quorum, House will adjourn or will send Sergeant at Arms out to round up missing members.
Senate: debate unlimited unless cloture invoked. Members can speak as long as they want and amendments need not be germane - riders are often offered. Entire bills can be offered as amendments to other bills. Unless cloture is invoked, Senators can use a filibuster to defeat a measure by "talking it to death"
If passed, sent to other chamber unless that chamber already has a similar measure under consideration. If either chamber does not pass bill dies. If the House and Senate pass the same bill then sent to President. If the House and Senate pass different bills they are sent to Conference Committee. Most major legislation goes to a Conference Committee.
1. Members from each house form conference committee and meet to work out differences. Committee usually made up of senior members appointed by presiding officers of the committee that originally dealt with bill. Representatives from each house work to maintain their version of the bill.
2. If the Conference Committee reaches compromise, it prepares a written conference report submitted to each chamber.
3. Conference report must be approved by both House and Senate.
President: bill sent to President for review
1. Bill becomes law if signed by President or if not signed within 10 days and Congress is in session.
2. If Congress adjourns before 10 days and President has not signed bill it does not become law ("pocket veto").
3. If President vetoes bill it is sent back to Congress with note listing reasons. The chamber that originated the legislation can attempt to override veto by a vote of ⅔ of those present. If the veto of the bill is overridden in both chambers it becomes law.
4. Once a bill is signed by President or his veto overridden by both houses it becomes a law and is assigned an official number.
The government spends most of our money on a few major programs.
Health Insurance (Medicare, Medicaid, CHIP, ACA) 25%
Social Security 21%
Economic Security Programs (Earned Income Tax Credit, Child Tax Credit,
Unemployment, SSI, SNAP, school meals, low-income housing assistance,
child care assistance, help meeting home energy bills, aid to abused or
neglected children) 11%
Benefits for Veterans and Federal Retirees 7%
Interest on National Debt 7%
Natural Resources, Environment, Agriculture 1%
Science, Medical Research 1%
Law Enforcement 1%
International Expenditures (humanitarian aid, maintaining US embassies
and consulates) 1%
All Other 5%
TOTAL: 5.8 trillion (over $4.8 trillion estimated to be financed by
federal revenues, remaining financed by net borrowing)
The government collects most of its revenues from a few main sources.
Federal Revenues (2022)
approximately 50% of
federal revenue comes from individual income taxes
36% from payroll taxes
that fund social insurance programs (Employers and employees split the cost
of payroll taxes but research has shown that employers pass their portion of
the cost on to workers in the form of lower wages.)
7% from corporate income
8% from a mix of excise
taxes (collected on the sale of certain goods such as fuel, alcohol,
tobacco), estate taxes (taxes on assets - such as cash, real estate, stocks
- that are transferred from deceased persons to their heirs), other revenue
In its first three years, the government spent a total of about $4 million. By 1800, total annual spending amounted to less than $11 million. National spending climbed during the 1930s from $4 billion in 1931 to over $8 billion in 1936. WWII increased that number to over $91 billion by 1944.
Today the total has climbed to $30.9 trillion (2022).
often total revenues do not cover total spending, the government borrows
money to finance any annual deficit. The total it has borrowed over the years, but not repaid, is the national
debt. In its first 150 years, the government sometimes generated
budget deficits (for instance, to finance a war) but later ran surpluses and
repaid the debt that had accumulated. Budget deficits have grown more
frequent in the last half-century and they soared during the 1980s. At the
end of fiscal year 1977 the deficit was $706 billion. By the end of fiscal
year 1997 it was $5.38 trillion - almost 8 times as much as it had been 20
years earlier - but the national budget ran a surplus of $184 billion
in 2001. However, in 2022,
the federal budget had a deficit of $1.4 trillion, 5.5% of the GDP.
Federal Debt Ceiling
The debt limit or debt ceiling is
the total amount of money that the US government is authorized to borrow to
meet its existing legal obligations. If the debt ceiling is reached and the
US Treasury doesn’t have the ability to pay its obligations, the negative
economic effects would quickly mount and risk triggering a deep recession.
Unlike most other developed countries, the US puts a hard limit on how much
it can borrow. Because the US government spends more than it takes in,
lawmakers must periodically raise the debt ceiling. The debt ceiling is the
legal limit on the total amount of federal debt the US government can
accrue. The limit applies to almost all federal debt, including the debt
held by the public and the debt the government owes itself as a result of
borrowing from various government accounts, like the Social Security and
Medicare trust funds. As a result, the debt continues to rise due to both
annual budget deficits financed by borrowing from the public and from trust
fund surpluses, which are invested in Treasury bills with the promise to be
repaid later with interest. Since the end of World War II, Congress and the
President have modified the debt ceiling more than 100 times. Lawmakers
suspended the debt limit, rather than raising it by a specific dollar
amount, seven times since 2012 and increased the debt limit twice in 2021.
In early 2023, the US once again hit its debt ceiling, which was capped at
$31.4 trillion. After months of using “extraordinary measures” to stave off
default, lawmakers enacted legislation to suspend the debt limit through
January 1, 2025.
The debt ceiling increase enacted in
late 2021 sustained federal borrowing authority until January 19, 2023, with
extraordinary measures (accounting maneuvers that provide for shifting
certain funds around such as suspending the sale of some government
securities) allowing the federal government to pay its obligations in full
and on time until at least June of that year. However, once the debt ceiling
was reached, the US government would not be able to issue any new debt,
potentially defaulting on its obligations. If Congress had not raised or
suspended the debt ceiling before then, the federal government would have
lacked the cash to pay its obligations.
Such obligations are the result of
laws previously enacted by Congress. Raising the debt limit is not about new
spending; it is about paying for previous choices policymakers legislated.
There is no plausible set of changes that can generate the instant surplus
necessary to avoid having to raise or suspend the debt ceiling. Once the
government hits the debt ceiling and exhausts all available extraordinary
measures, it is no longer allowed to issue debt and soon after will run out
of cash-on-hand. At that point, given annual deficits, incoming receipts
will be insufficient to pay millions of daily obligations as they come due.
The federal government will have to at least temporarily default on many of
its obligations, from Social Security payments and salaries for federal
civilian employees, and the military to veterans’ benefits and utility
bills, among others. Some believe the Treasury Department could buy more
time by engaging in unprecedented actions such as selling large amounts of
gold, minting a special large-denomination coin, or invoking the Fourteenth
Amendment to override the statutory debt limit. Whether any of these tools
is truly available is in question, and the potential economic and political
consequences of each of these options are unknown. A Treasury report found
that a delay of payments, which suspends all government payments until they
can all be paid on a day-to-day basis, is the least harmful scenario.
Realistically, though, the only option to avoid a default of our nation’s
obligations is for Congress to raise or suspend the debt ceiling.
A default occurs when the Treasury
does not have enough cash available to pay for obligations that have already
been made. In the debt ceiling context, a default is precipitated by the
government exceeding the statutory debt limit and being unable to pay its
obligations to its citizens and creditors. Without enough money to pay its
bills, all payments are at risk, including all government spending,
mandatory payments, interest on debt, and payments to US bondholders. A US
government default would be disastrous. A default would roil global
financial markets and create chaos (including extreme stock market
volatility), since both domestic and international markets depend on the
relative economic and political stability of US debt instruments and the US
economy. Interest rates would rise, and demand for Treasuries would drop as
investors stopped or scaled back investments in Treasury securities that
were no longer considered safe. Even the threat of default during a standoff
increases borrowing costs. If interest rates for Treasuries increase
substantially, interest rates across the economy would follow, affecting car
loans, credit cards, home mortgages, business investments and other costs of
borrowing and investment. The balance sheets of banks and other institutions
with large holdings of Treasuries would decline as the value of Treasuries
dropped, potentially tightening the availability of credit. In the event of
an actual default, increased unemployment rates could persist for years.
Although policymakers have often
enacted “clean” debt ceiling increases, Congress has also coupled increases
with other legislative priorities … “I’ll vote to raise the debt ceiling if
you’ll pass my bill.” In nearly all instances in which a debt limit increase
was accompanied by such deal-making, lawmakers generally approved temporary
increases in the debt limit to allow time for negotiations to be completed
without the risk of default. But threatening to break the promises of the
US government to people all over the world as well as its own citizens in
order to gain political points makes no sense. Such legislative maneuvers
ought to be banned as a weapon. Failing to raise a debt ceiling would be
disastrous. It would result in severe negative consequences that experts are
not capable of fully predicting in advance. Even threatening a default or
taking the country to the brink of default has serious implications. In
2011, such maneuvers took the country to the brink of default and prompted a
downgrade of the country's top-notch credit rating. The argument that
raising the debt ceiling encourages additional future spending is logically
irresponsible. The debt ceiling has to be raised to authorize past spending
already approved by past Congresses. The truth is that the US doesn't need,
and shouldn't have, a debt ceiling. Every other democratic country, with the
exception of Denmark, does fine without one.
B. Types of Spending
1. Discretionary: 28% of all Federal Spending (2023)
This is the money the President and Congress must decide to spend each year. It includes money for such programs as the FBI, Coast Guard, housing, education, space exploration, highway construction, defense, foreign aid and so on.
2. Mandatory: 62% of all Federal Spending (2023)
This is the money that the national government spends automatically -
unless the President and Congress change the laws that govern it. It includes entitlements - such as Social Security, Medicare and Food Stamps - through which individuals receive benefits because they meet some criteria of eligibility (e.g. age, income). It also includes interest on the national debt, which the Government pays to individuals and institutions that buy saving bonds and other US securities. Despite its name, however, mandatory spending is not unchangeable. The President and Congress can change the laws that govern entitlements or taxes but they must take explicit action to do so
since they include laws other than appropriations acts.
C. The Budget Process
The President's budget is sent to Congress in early February. This proposal is his plan for the next fiscal year, beginning October 1. This plan, however, only becomes official after Congress passes and the President signs spending bills and legislation creating new taxes and entitlements.
After receiving the President's budget, Congress examines it in detail. Scores of committees and subcommittees hold hearings on proposals under their jurisdiction. The House and Senate Armed Services Committees, for instance, hold hearings on the President's defense plan. If the President's plan contains proposals that affect federal revenues, the House Ways and Means and Senate Finance committees hold hearings. The President, the Budget Director, the Cabinet and others work with Congress as it accepts some proposals, rejects some and changes others.
Each year Congress must pass and the President must sign, 13 appropriation bills that include all of the discretionary spending. The President and Congress do not have to enact new laws governing entitlements or taxes. If they do not, the government will pay the benefits for Social Security and other programs and collect the taxes required by laws already in place.
D. Budget Calendar
The Budget Calendar
No later than the 1st Monday in February
The President transmits the budget, including a sequester preview report.
Six weeks later
Congressional committees report budget estimates to the Budget Committee.
Action completed on congressional budget resolution.
House consideration of annual appropriations bills may begin.
Action completed on reconciliation.
Action on appropriations completed by House.
The President transmits the Mid-Session Review of the budget.
OMB updates the sequester preview.
The fiscal year begins.
15 days after the end of a session of Congress
OMB issues final sequester report and the President issues a sequester order if necessary.
We the Economy Films: Chapter 3:
What is the role of our government?
oWhy is our tax system so complicated?
Can a cartoon conquer a
challenge like today’s tax system, with its ever-changing, 75,000
pages of laws? With retro flair, "Taxation Nation" looks into how
our tax system does – and doesn’t – work.
oWhere do our tax dollars go?
Uncle Sam takes a cut of our
earnings every April. But what does he spend our hard-earned money
on? The answers will truly surprise you in this vérité odyssey.
oWhy does the US fund foreign aid? The US spends approximately
$37 billion dollars a year on foreign aid - just under 1% of our
federal budget. "The Foreign Aid Paradox" zeroes in on food aid to
Haiti and how it affects American farming and shipping interests as
well as Haiti’s own agricultural markets. The result: a surprising
study in unintended consequences.
A. Must be a natural-born citizen of the US (can be born abroad of parents who are American citizens).
B. Must be 35 years of age.
C. Must be a resident of the US for at least 14 years (but not necessarily the 14 years preceding the election).
A. White House
B. a chef
C. a salary of $400,000 per year (taxable)
D. expense account of $50,000 per year (taxable)
E. travel expenses of $100,000 per year (tax-free)
F. pension, on retirement, cabinet member's salary (taxable)
G. staff support on leaving the presidency
H. a place in the country: Camp David
I. a personal airplane:Air Force One
AIR FORCE ONE: OBAMA ON BOARD (2:36)
AIR FORCE ONE: BLACK, WITH EQUAL (0:40)
[If you see the message
ErrorLoadingImage in either of the two players above, just ignore it and hit the play button.]
III. The President's Roles
Commander in Chief of the Military
The President is responsible for all military decisions. Ultimately, any military action taken by this nation is his responsibility. This is particularly important because of the nature of the use of weapons ... they start wars and people die.
The President is the nation's chief diplomat. It is his responsibility to negotiate treaties and conduct foreign affairs.
All of the heads of the agencies in Washington report to the President. In the end he is responsible for carrying out the law and making sure the bureaucracy runs efficiently.
Often the President suggests laws and he is always pushing for legislation he feels is important. In this function he often acts as a lobbyist, exerting pressure and shepherding bills through Congress. The President must also sign and/or veto legislation.
Leader of Public Opinion
The President is the one office for which the entire nation votes. He represents and leads the nation. This is particularly difficult considering the contentious nature of politics. Often in trying to lead public opinion he only serves to enrage half of the country. That's what politics is all about.
The President is responsible for helping to get members of his party elected / reelected (as well as himself). While this is not an official function it is very time-consuming.
IV. The Powers of the President
Article II of the Constitution the President has the following powers:
Serve as commander in chief of the armed forces
Commission officers of the armed forces
Grant reprieves and pardons for federal offenses (except impeachment)
The executive branch consists of a number of different people/offices other than the president.
I. Vice President
Traditionally, the power of the vice president has depended on the president. The Constitution makes the VP the 'president' of the Senate, but he has no actual power in the Senate. The Constitution mainly provides for a VP who waits around for the president to die. Few VPs, then, are given any real power by their president. Most presidents don't like their VPs (since each was chosen to balance a ticket and has little in common with
the president) and don't trust their VPs (since they assume the VP is out to replace him).
The cabinet is the collective heads of the various executive departments - the head of State, Defense, Commerce, etc. The cabinet was intended to come together and act as a source of wisdom for the president on policy matters. After all, you have in one group the leading authority of every subject in the country. However, the cabinet has never been a major source of policy because members tend to think in terms of departmental interests, rather than national interest.
III. White House Staff / Office
These are the presidential advisors that actually have offices in the White House. These people - the press secretary, the national security advisor, etc. - will always be the president's closest advisors since, unlike any other officials, they have daily access to the president.
IV. Executive Office of the President
These agencies report directly to the president and perform services directly for him but are not located in the White House. Their contact with the president is direct, but not as intimate as the White House staff. The Executive Office of the President includes such positions as the CIA director and the OMB director.
...the people who are responsible for
implementation: putting specific policies into operation. The chief advantage of a bureaucracy is that is tends to standardize everything so that procedures and personnel can be easily transferred or replaced. Today over 85% of the government operates on the merit system. It is this vast group of people that add stability to the government. Presidents, congressman, judges may come and go but the bureaucracy remains the same. The chief disadvantage of a bureaucracy is that is tends to standardize everything so that people become numbers and problems become cases. How far can the bureaucracy go in the name of efficiency?
By the way, most people who work in government don’t work in Washington: 85% of
the federal workforce is based elsewhere, and nearly 18 million of the 20
million civilian government jobs are at the state and local level.
The Constitution created one
national court - the Supreme Court - but did not mandate its
structure. Instead the structure of the Supreme Court is determined by Congress. Originally, the Supreme Court had a chief justice and five associate justices. Today, it has a chief justice and 8 associate justices.
The Constitution also gave Congress the power to create any additional
national courts necessary. Over time, the national
court structure has evolved into what we have today, with 91
national district courts, 13
national appeals courts, the
Supreme Court and a handful of specialized national
Each level of the national court system has its own
jurisdiction (types of cases a court
is competent to hear and decide). The national district courts
are courts of
original jurisdiction, while the national appeals courts
have appellate jurisdiction. The Supreme Court has both types of
jurisdiction, depending on the case. It exercises its appellate jurisdiction
when it hears an appeal from a lower court. When the Supreme Court hears a case directly it is exercising original jurisdiction.
Rarely, the court hear cases that have not been previously heard by a lower
court, such as between one state's government and another.
The justices decide which cases they will hear, about 80 each year. The US
Supreme Court decides fewer cases than any other court in modern times. In
recent years, the Court has heard an average of about 80 cases a term, which is
half the number they heard 20 years ago and makes up fewer than 1% of the
approximately 10,000 review petitions they receive. They decide
another 50 without hearing arguments. The cases they choose usually address
constitutional issues or federal law. The Court decides cases based on
merit: cases in which two lower courts have issued contradictory
decisions and issues that have broad impact on the country. Judicial review is the power of courts to declare acts of Congress, actions of national executives or laws enacted by any level of government to be unconstitutional.
There are many cases that don't get heard. If the justices decide not to hear a
case, the decision of the lower court stands.
What Happens When the Supreme Court Hears a Case?
Typically, all nine of the justices hear each case. Sometimes less than the full
nine justices may hear a case due to illness, a vacant position, or if one
justice recuses him/herself (chooses not to participate in a case) due to
conflict of interest. A minimum of six of the nine judges must be present to
make a decision on a case.
Each case is decided by majority vote. In case of a tie, the decision of the
lower court is upheld.
Since the court only reviews cases which are appealed from a lower court, there
is no evidence presented, and no witnesses are heard. There are simply briefs
(written arguments) and oral argument by the parties. Each side has 30 minutes
to present oral arguments, and the justices interrupt with questions while they
After the attorneys are finished speaking, the justices meet in secret to
discuss the case and come to a decision. No official record is kept of this
When the Supreme Court announces what they have decided in a case, they issue a
formal document called a decision, and sometimes more than one.
The conclusion of the court is a majority opinion.
The justices that disagreed with the majority vote may issue one or more
dissenting opinions, explaining their reasons for disagreeing.
Sometimes, one or more justices may be on the majority side but disagree with
the reasoning behind the decision, and issue a concurring opinion.
In recent years many long-held traditions of the Court have changed or been
dropped without explanation. The Supreme Court building has been closed to the
public since the beginning of the pandemic in 2020. Then, not long after the
leak in early May 2022 of a draft of the opinion that overruled Roe v Wade,
the Supreme Court building was surrounded by an eight-foot fence. Always
cloistered and remote, the Court is now impenetrable.
For unexplained reasons, the justices have stopped announcing their decisions
from the bench, abandoning a tradition that is both ceremonial and illuminating.
In the old days, the author of the majority opinion would give a quick and
conversational summary of the ruling that could be extremely valuable for a
reporter on deadline and, by extension, for members of the public trying to
understand a decision. More important yet were oral dissents, reserved for
decisions that the justices in the minority believed were profoundly mistaken.
Ordinarily, one or more of the justices who dissent in a case would raise their
voices in protest. These days, the Court makes do with posting PDFs of its
decisions, robbing the occasion of ceremony, drama and insight.
The Supreme Court
Texas to ban nearly all abortions (2021) was different from most major
rulings by the court. This one came out shortly before midnight. It consisted of
a single paragraph, not signed by the justices who voted for it and lacking the
usual detailed explanation of their reasoning. And there had been no oral
arguments, during which opposing lawyers could have made their cases and
answered questions from the justices. Instead, the opinion was part of something
that has become known as “the
shadow docket.” In the shadow docket, the court makes decisions
quickly, without the usual written briefings, oral arguments or signed opinions.
In recent years, the shadow docket has become a much larger part of the Supreme
Court’s work. Shadow-docket cases are frequently those with
urgency - such as a voting case that must be decided in the final weeks before
an election. As a result, the justices don’t always have time to solicit briefs,
hold oral arguments and spend months grappling with their decision. Doing so can
risk irreparable harm to one side in the case. For these reasons, nobody
questions the need for the court to issue some expedited, bare-bones rulings.
But many legal experts are worried about how big the shadow docket has grown,
including in cases that the Supreme Court could have decided in a more
the justices expanded the shadow docket? In part, it is a response to a newfound
willingness by lower courts to issue decisions that apply to the entire country.
By acting quickly, the Supreme Court can retain its dominant role. But there is
also a political angle. Shadow-docket cases can let the court act quickly and
also shield individual justices from criticism: In the latest abortion case,
there is no signed opinion for legal scholars to pick apart, and no single
justice is personally associated with the virtual end of legal abortion in
Texas. The only reason that the public knows the precise vote - 5 to 4 - is that
the four justices in the minority each chose to release a signed dissent.
Critics argue that judges in a democracy owe the public more transparency. The
idea of unexplained, unreasoned court orders seems so contrary to what courts
are supposed to be all about. If courts don’t have to defend their decisions,
then they’re just acts of will, of power. The shadow docket also leaves
lower-court judges unsure about what exactly the Supreme Court has decided and
how to decide similar cases they later hear. Because the lower-court judges
don’t know why the Supreme Court does what it does, they sometimes divide
sharply when forced to interpret the court’s non-pronouncements.
the court’s six Republican-appointed justices are driving the growth of the
shadow docket, and it is consistent with their overall approach to the law. They
are often (though not always) willing to be aggressive, overturning longstanding
precedents, in campaign finance, election law, business regulation and other
areas. The shadow docket expands their ability to shape American society. The
three Democratic-appointed justices, for their part, have grown frustrated by
the trend. Chief Justice Roberts also evidently disagrees with the use of the
shadow docket in the Texas abortion case. In his dissent, joining the three
liberal justices, he said the court could instead have blocked the Texas law
while it made its way through the courts. That the court chose another path
means that abortion is now all but illegal in the nation’s second-largest state.
One new line of reasoning recently
introduced in SCOTUS arguments is the Major Questions Doctrine (MQD).
Federal agencies are given great power to operate within the authority granted
to them by Congress. Historically, courts have given agencies broad discretion
as long as they are not operating in a way that is not expressly restricted and
where they can show that their interpretation is reasonable. However, the MQD, a
term the Court never used in a majority opinion prior to 2022, is a principle of
statutory interpretation in US administrative law which states that courts will
presume that Congress does not delegate to executive agencies issues of major
political or economic significance. When the US Supreme Court issued its 2022
decision in West Virginia v. Environmental Protection Agency, the
majority concluded that the EPA’s policy involved a major question, and
that the agency went too far in its attempt to regulate, without explicit
permission from Congress to do so. This signaled a turn away from how the Court
traditionally interpreted statutes and was at odds with the normal tools of
statutory interpretation. Advocates of limiting the power of the federal
bureaucracy cheered, while others worried that it could prevent the government
from taking decisive action on urgent problems like climate change, student
loans, healthcare and so on. Under the MQD, courts make an initial finding of
whether something has vast political or economic implications - and if so, the
agency loses. The MQD stops agency action, even if a law potentially gives
them the power, until Congress authorizes the action again clearly. That
seems okay because Congress can, in principle, still act. But the odds of
current congressional action are quite poor. Congress, in other words, isn’t
going to do what the MQD says it is meant to do. The MQD could potentially be
quite harmful since the whole point of an administrative state is to allow broad
delegation to agencies. It suggests that the Court does not really respect
governmental choices about delegating power to agencies. Rather, the Court looks
like an imperial court, motivated by power, not reason. And the MQD stops
healthy action, especially in areas where it’s most needed - like climate action
or regulation of emerging technologies. The MQD seems to be simply an expression
of judicial aggrandizement. It creates a bureaucracy unable to function and
imposes an unconstitutional judicial limit on US administrative law. The major
questions doctrine inherently benefits the status quo, and with industry, the
environment and society evolving at a pace far faster than Congress can
legislate with the specificity required, the ruling has cast doubt on how
agencies will be able to act on the major issues of our day. If Congress will
not act on important issues because the parties are too busy fighting, and the
Court stops agencies and the President (see Biden v. Nebraska (2023))
from acting, the country is going to be in real trouble.
What Do Supreme Court Justices Do Besides Hear Cases?
In remarks in May 2022, Justice Clarence Thomas reflected on how things had
changed at the Court since an 11-year stretch without changes in its membership
before the arrival of Chief Justice John Roberts in 2005. “This is not the Court
of that era,” Justice Thomas said, adding: “We actually trusted each other. We
may have been a dysfunctional family, but we were a family.” A less collegial
Court seems like it could be especially problematic for justices in the
minority. There are now five Republican-appointed justices who are even more
conservative than Chief Justice Roberts. If the Court is a less collaborative
place, it probably gives justices in the minority less ability to shape
decisions. It’s possible to overstate the power of collegiality, though.
Justices cast votes based on the strength of the relevant arguments and the
desired outcomes, not on how likable their colleagues are. The justices also say
there is no vote-trading across cases. On the other hand, there are certainly
negotiations within cases. It seems fairly clear, for instance, that Justices
Breyer and Kagan shifted positions in one part of the 2012 case that upheld a
key portion of the Affordable Care Act to make certain they would secure Chief
Justice Roberts’s vote on another part. Justices may well be prepared to narrow
or reshape a draft opinion that seeks to speak for a five-justice majority in
exchange for a vote. But once the author has gotten to five, the value of
another potential vote plummets. It is that dynamic that must worry the Court’s
Speaking of collegiality … On June 30, 2022, Justice Breyer officially retired
and helped swear in his replacement, Justice Ketanji Brown Jackson. When a new
justice joins the Supreme Court, tradition requires the second-most junior
justice to arrange a little party. In 2006, for instance, when Justice Samuel
Alito came on board, that task fell to Justice Breyer, who knew his new
colleague to be a Phillies fan. Before dessert was served, Justice Breyer
introduced a special guest: the Phillie Phanatic, the team’s mascot. This year,
Justice Amy Coney Barrett is the second-most junior justice and will presumably
be in charge of the welcoming celebration for Justice Jackson.
The Court is in recess from sometime near the end of June until October each
year. During the break justices analyze new petitions for review, consider
motions and applications, study argued and forthcoming cases and work on their
opinions, travel extensively, make public appearances and speeches (for which
they are well compensated), and write books and articles. The justices often
teach courses in exotic places. In 2012, for instance, after voting to uphold
the Affordable Care Act (and thus angering Republicans), Chief Justice Roberts
left for Malta to teach a two-week class on the history of the US Supreme Court.
“Malta, as you know, is an impregnable island fortress,” Roberts said. “It
seemed like a good idea.”
Because the justices do not meet to decide whether to grant or deny review in
cases during the summer months, thousands of legal petitions pile up during
their absence. The Court plows through this backlog at their first conference
(aptly referred to as the “long conference”) in the last week of September. But
they obviously cannot give these petitions the same consideration as those that
arrive later in the term. (For this reason, savvy appellate attorneys know that
it is best to avoid filing petitions over the summer if they can.) When pressing
issues arise during the recess, the matter is often handled by a single justice
“in chambers” who must make important decisions about whether to grant stays,
injunctions or extensions without consulting with his/her absent colleagues.
Under the Constitution, federal courts exercise only judicial powers. The Supreme Court only considers cases that are
othe petitioner has
standing to sue (stake in outcome): In an actual case or
controversy, the plaintiff in a federal lawsuit also must have legal
standing to ask the court for a decision. That means the plaintiff must have
been aggrieved, or legally harmed in some way, by the defendant. This means
that federal judges may interpret the law only through the resolution of
actual legal disputes, referred to in Article III of the Constitution as
“Cases or Controversies.” A court cannot attempt to correct a problem on its
own initiative, or to answer a hypothetical legal question.
othe case is
ripe for decision (will have an impact on the country)
oit is not
moot (has not already been decided): it must present an ongoing
problem for the court to resolve
oit is not a
political question (an issue with which the Congress or the President should deal)
The case must present a category of dispute that the law in question was
designed to address, and it must be a complaint that the court has the power to
remedy. In other words, the court must be authorized, under the Constitution or
a federal law, to hear the case and grant appropriate relief to the plaintiff.
The federal courts, thus, are courts of limited jurisdiction because they may
only decide certain types of cases as provided by Congress or as identified in
the Constitution .Although the details of the complex web of federal
jurisdiction that Congress has given the federal courts is beyond the scope of
this brief discussion, it is important to understand that there are two main
sources of the cases coming before the federal courts: federal question
jurisdiction and diversity jurisdiction.
In general, federal question jurisdiction arises in cases that involve
the US government, the US Constitution or federal laws, or controversies between
states or between the United States and foreign governments. A case that raises
such a federal question may be filed in federal court. Examples of such cases
might include a claim by an individual for entitlement to money under a federal
government program such as Social Security, a criminal prosecution by the
government that alleges someone violated a federal law, or a challenge to
actions taken by a federal agency.
A diversity jurisdiction case also may be filed in federal court based on
the diversity of citizenship of the litigants, such as between citizens of
different states or between US citizens and those of another country. To ensure
fairness to the out-of-state litigant, the Constitution provides that such cases
may be heard in a federal court. An important limit to diversity jurisdiction is
that only cases involving more than $75,000 in potential damages may be filed in
a federal court. Claims below that amount may only be pursued in state court.
Moreover, any diversity jurisdiction case regardless of the amount of money
involved may be brought in a state court rather than a federal court.
Federal courts also have jurisdiction over all bankruptcy matters, which
Congress has determined should be addressed in federal courts rather than the
state courts. Through the bankruptcy process, individuals or businesses that can
no longer pay their creditors may either seek a court-supervised liquidation of
their assets, or they may reorganize their financial affairs and work out a plan
to pay their debts.
Although federal courts are located in every state, they are not the only forum
available to potential litigants. In fact, the great majority of legal disputes
in American courts, civil or criminal, are addressed in the separate state court
systems. State courts have jurisdiction over virtually all divorce and child
custody matters, probate and inheritance issues, real estate questions, and
juvenile matters, and they handle most criminal cases, contract disputes,
traffic violations, and personal injury cases. In addition, certain categories
of legal disputes may be resolved in special courts or entities that are part of
the federal executive or legislative branches or state and federal
Contrary to popular belief the Supreme Court has
traditionally been limited by a number of factors:
Constitution sets certain outer limits by guaranteeing certain rights and liberties.
oPast decisions –
Precedents must serve as general guidelines for current decisions.
super-precedent is a case that is so deeply embedded in the fabric of the
law that it should be especially hard to overturn, a decision so widely accepted
that it is invulnerable to serious legal challenges that could see it
overturned, a cases that is so well settled that no one seriously pushes for its
overruling, e.g., Brown v. Board of Education (1954 ruling that outlawed
racial segregation in public schools), Marbury v. Madison (1803) decision
giving courts the authority to strike down laws as unconstitutional. Recent
decisions by the current very conservative Court, however, have shown that the
current Court does not feel bound by precedent.
Court does not have any enforcement power.
However, as recent decisions have shown, if state legislatures agree with the
Court, they will provide enforcement power of the Court's decisions.
Court relies on public acceptance of its rulings ... although that seems to
be changing. The Court's rejection of Roe v. Wade and a constitutional
right to reproductive choice (2022) was unpopular with an overwhelming majority
of the country.
amend the Constitution, which
could negate any ruling
the Supreme Court may have made on any applicable issue. However, as the
past has shown, amending the US Constitution is difficult, perhaps impossible in
There are limits to the Supreme Court’s power: Political progressives and
moderates who are alarmed about the 2022 Court - the combination of its
aggressiveness and the relative youth of its conservative members - have many
options for confronting it.
Some options are fairly radical, like changing the size of the Court or passing
a law declaring any subject to be off limits from Supreme Court review (both of
which, to be fair, have happened in previous centuries). Other options are more
straightforward. They involve the basic tools of democratic politics: winning
over public opinion and winning elections. The founders did not design the Court
to be the final arbiter of American politics, anyway. At the state level,
progressives still have the ability, for example, to protect abortion rights, so
long as they can persuade enough voters. At the federal level, Congress has more
authority to defy Court decisions than many people realize. For example, the
same-sex marriage bill is so intriguing because it is a rare recent instance of
Congress acting as a check and balance on the Supreme Court, just as the
founders envisioned and the Constitution allows.
When the Court overturns a specific law, Congress can often pass a new law,
written differently, that accomplishes many of the same goals. Congress took
this approach with civil rights starting in the 1980s, including with the Lilly
Ledbetter Fair Pay Act of 2009, which made it easier for workers to sue for pay
discrimination. The law was an explicit response to a Supreme Court ruling
against Ledbetter. More recently, however, Congress has been too polarized and
gridlocked to respond to Court decisions. As a result, the courts have tended to
dominate federal policy, by default.
However, after the Court’s abortion decision in June 2022 contained language
that seemed as if it might threaten same-sex marriage rights, House Democrats
quickly proposed a marriage bill that would defang any future Court decision.
The Court could still issue a ruling allowing states to stop performing same-sex
marriages but the House bill would require one state to recognize another
state’s marriage. Two women or men who married in, say, California would still
be legally married in South Carolina even if it stopped performing same-sex
weddings. According to a recent Gallup poll, 71% of Americans support same-sex
[It should be noted that progressives still face obstacles to achieving their
goals through Congress. The Senate has a built-in bias toward rural,
conservative states. The House suffers from gerrymandering (although 2022’s
districts don’t actually give Republicans a big advantage). And the Supreme
Court has made it easier for states to pass voting restrictions.]
The Right accuses the Supreme
Court of being too liberal.
The Left accuses the Supreme
Court of being too conservative.
If both Republican and Democratic presidents have been able to make their share of Supreme Court nominations over time
(and that's a big "if" given the US Senate's behavior regarding Court appointees
in the last decade), can we not say that, over time, we have had a balanced Supreme
Court? As of 2022, however, an ambitious
Republican-appointed majority controls the Supreme Court even though Democrats
have won the popular vote in seven of the past eight presidential elections.
The justices usually make an effort to treat
one another respectfully. They disagree on the law, sometimes harshly, while
maintaining productive and even warm relationships, like
the famous friendship between Antonin Scalia and Ruth Bader Ginsburg.
The American system of government is based on the concept that power flows from the people to the government.
When the power of government is limited by a framework of fundamental written law, that government is said to be constitutional.
...prohibitions against government interference in the lives of its citizens
Civil liberties refer to individuals in general situations.
my right to say what I please on the street
your right to worship in the church of your choice.
Civil liberties guarantee individuals freedom from government intrusion into their lives.
Government does not provide liberty
can provide the condition of legal order necessary for liberty.
Government can get too strong without restraint -- thus the Bill of Rights
-- but civil liberties are significant only if individuals use them.
Civil liberties are found in the Bill of Rights, Articles 1, 3
and in various Congressional laws -- for example, the Freedom of Information Act and
the Privacy Act.
Liberties Guaranteed in the US Constitution (before the Bill of Rights was added)
May not suspend writs of habeas corpus (except during invasion or rebellion).
Congress or states may not pass bills of attainder.
and states may not pass ex post facto laws.
The right of trial by jury in criminal cases is guaranteed.
Citizens of each state are entitled to the privileges and immunities of the citizens of every other state.
No religious test or qualification for holding federal office are imposed.
States may not pass laws impairing the obligation of contracts.
Protections Afforded Citizens to Participate in the Political Process
Amendment 1: Freedom of religion, speech, press and assembly; right to petition government
Protections against Arbitrary Police and Court Action
Amendment 4: No unreasonable searches or seizures
Amendment 5: Grand jury indictment required to prosecute an individual for a serious crime, no double jeopardy (being tried twice for the same offense), forcing an individual to testify against himself prohibited, no loss of life, liberty or property without due process
Amendment 6: Right to a speedy, public, impartial trial with defense counsel and right to cross-examine witnesses
Amendment 7: Jury trials in civil suits where value exceeds $20
Amendment 8: No excessive bail or fines, no cruel and unusual punishments
Protections of States' Rights and Unnamed Rights of People
Amendment 9: Unlisted rights necessarily denied
Amendment 10: Powers not delegated to US or denied to states are reserved to states
Amendment 2: Right to bear arms
Amendment 3: Troops not quartered in homes in peacetime
Although the Bill of Rights is the fundamental charter of American civil liberties, the Supreme Court determines how those rights are defined and applied.
Civil liberties were established at a time when the common perception was that individuals could take care of themselves if government left them alone. Gradually Americans became less optimistic about the individual's ability to take care of himself and more optimistic about the government's ability to take care of people.
Do you think this has led to our willingness to allow our freedoms to erode? Do we now say "the government can have my freedom of privacy if they will keep drugs off of my street"? If so, have our priorities shifted?
Know Your Rights: What to Do...
...If You're Stopped by the Police
Think carefully about your words, movement, body language and emotions.
Don't get into an argument with the police.
Remember, anything you say or do can be used against you.
Keep your hands where the police can see them.
Don't run. Don't touch any police officer.
Don't resist even if you believe you are innocent.
Don't complain on the scene or tell the police they're wrong or that you're going to file a complaint.
Do not make any statements regarding the incident. Ask for a lawyer immediately upon your arrest.
Remember officers' badge and patrol car numbers.
Write down everything you remember ASAP.
Try to find witnesses and their names and phone numbers.
If you are injured, take photographs of the injuries as soon as possible, but make sure you seek medical attention first.
If you feel your rights have been violated file a written complaint with police internal affairs division or a civilian complaint board.
...If You're Stopped for Questioning
It's not a crime to refuse to answer questions, but refusing to answer can make the police suspicious about you. If you are asked to identify yourself, see #2
at the bottom.
Police may "pat-down" your clothing if they suspect a concealed weapon. Don't physically resist but make it clear that you don't consent to any further search.
Ask if you are under arrest. If you are, you have a right to know why.
Don't bad-mouth the police or run away even if you believe what is happening is unreasonable. That could lead to your arrest.
...If You're Stopped in Your Car
Upon request, show them your driver's license, registration, and proof of insurance. In certain cases, your car can be searched without a warrant as long as the police have probable cause. To protect yourself later, you should make it clear that you do not consent to a search. It is not lawful for police to arrest you simply for refusing to consent to a search.
If you're given a ticket, you should sign it; otherwise you can be arrested. You can always fight the case in court later.
If you're suspected of drunk driving (DWI) and refuse to take a blood, urine or breath test, your driver's license may be suspended.
...If You're Arrested or Taken to a Police Station
You have the right to remain silent and to talk to a lawyer before you talk to the police. Tell the police nothing except your name and address. Don't give any explanations, excuses or stories. You can make your defense later, in court, based on what you and your lawyer decide is best.
Ask to see a lawyer immediately. If you can't pay for a lawyer, you have a right to a free one and should ask the police how the lawyer can be contacted. Don't say anything without a lawyer.
Within a reasonable time after your arrest, or booking, you have the right to make a local phone call: to a lawyer, bail bondsman, a relative or any other person. The police may not listen to the call to the lawyer.
Sometimes you can be released without bail or have bail lowered. Have your lawyer ask the judge about this possibility. You must be taken before the judge on the next court day after arrest.
Do not make any decisions in your case until you have talked with a lawyer.
...In Your Home
If the police knock and ask to enter your home, you don't have to admit them unless they have a warrant signed by a judge.
However, in some emergency situations (like when a person is screaming for help inside or when the police are chasing someone) officers are allowed to enter and search your home without a warrant.
If you're arrested, the police can search you and the area close by. If you are in a building, close by usually means just the room you are in.
What you say to the police is always important. What you say can be used against you and can give the police an excuse to arrest you, especially if you bad-mouth a police officer.
You must show your driver's license and registration when stopped in a car. Otherwise, you don't have to answer any questions if you are detained or arrested, with one important exception. The police may ask for your name if you have been properly detained and you can be arrested in some states for refusing to give it. If you reasonably fear that your name is incriminating, you can claim the right to remain silent, which may be a defense in case you are arrested anyway.
You don't have to consent to any search of yourself, your car or your house. If you DO consent to a search, it can affect your rights later in court. If the police say they have a search warrant, ASK TO SEE IT.
Do not interfere with or obstruct the police
... you can be arrested for it.
We all recognize the need for effective law enforcement, but we should also understand our own rights and responsibilities, especially in our relationships with the police. Everyone, including minors, has the right to courteous and respectful police treatment. If your rights are violated, don't try to deal with the situation at the scene. You can discuss the matter with an attorney afterwards or file a complaint with Internal Affairs or the Civilian Complaint Board.
...regulations permitting state interference to guarantee rights of full political participation to groups excluded by law, custom or condition of poverty
Civil rights are the freedom or opportunity to take part in government. They usually come about after a struggle leading to new laws that offer guarantees to a previously excluded group. America's history is one of the extension of opportunity to participate in politics to more and different groups of people.
Expansion of the franchise (right to vote) is an obvious example of civil rights struggles.
Amendment 15 gave African Americans right to vote.
Amendment 19 gave women right to vote.
Amendment 26 gave 18-to-20 year olds right to vote.
Specific civil rights are found in Amendments 13-15, 19, 24
In addition, Congress has passed a number of Civil Rights Acts over the past several decades.
Although the civil rights movement of African Americans is the most obvious struggle, it is certainly not the only one. Other groups
-- women, Hispanics, gays and lesbians, migrant workers, children, disabled -- have struggled and continue to struggle to increase their rights in the system.