Checks on the Judicial Branch

Announcements:
The snow days have obviously impacted our ability to get through everything that we need to before final exams the rest of the week. It also limits the time you have for any attempts at retakes. Here is how we are planning to proceed:

• Review the posts from the last couple of days on checks on the judicial and judicial philosophy.
• We will take the first 30-45 minutes or so of class to review the material on the judicial branch.
• Since we will not have the full time for administering the exam, we will NOT complete the FRQ as part of our final exam. The final (Unit 2 Exam) will consist of 35 questions over the branches of government, AP-format (stimulus-based and traditional m/c) and will be worth 70 points.
• You should review by looking at past posts--specifically the essential questions and learning standards. Looking over your identification terms, utilizing Khan Academy, and watching some of the other review videos should also help.
• For those of you needing to retake or make up a missing quiz or test--I will NOT be available Wednesday before school. However, you may come in Wednesday after school, Thursday before or after school, and Friday before school. 
• Please email me if you have any questions.

Finals Schedule:

Executive Branch Quiz Retakes: If you are not satisfied with your performance on the quiz over the executive branch, you may opt to take a retake of that quiz. Please  complete at least six of the twenty-eight assigned Khan Academy modules before the retake.

READING: 441-477 in Edwards

UNIT TWO IDENTIFICATION TERMS
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Today's Essential Question: How can the other branches limit the judicial branch?

Learning Standards:
CON-5.C: Explain how other branches in the government can limit the Supreme Court’s power.

CON-5.B.3: Controversial or unpopular Supreme Court decisions can lead to challenges of the Court’s legitimacy and power which Congress and the president can address only through future appointments, legislation changing the Court’s jurisdiction, or refusing to implement decisions.

CON-5.C.1: Restrictions on the Supreme Court are represented by:

• Congressional legislation to modify the impact of prior Supreme Court decisions 
• Constitutional amendments 
• Judicial appointments and confirmations 
• The president and states evading or ignoring Supreme Court decisions 
• Legislation impacting court jurisdiction

The courts' main weapon to limit the power of the other branches is judicial review. But what about the limits on the courts? What can the executive and legislative branches do to check the courts?






The Appointment and Confirmation Battle Over Neil Gorsuch


7 Things to Know About Supreme Court Nominations



What does the chart below tell us about confirmation politics? Why is this occurring?

Review Videos






 The Politics of Confirming the President's Judicial Nominees





JudicialNominations.org: website detailing the nomination process, includes statistics on the number of vacancies

Judicial Philosophy: Judicial Activism vs. Judicial Restraint

Announcements:


Finals Schedule:

Executive Branch Quiz Retakes: If you are not satisfied with your performance on the quiz over the executive branch, you may opt to take a retake of that quiz. Please complete at least six of the twenty-eight assigned Khan Academy modules before the retake.

READING: 441-477 in Edwards

UNIT TWO IDENTIFICATION TERMS
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Today's Essential Question: How do judges interpret the Constitution differently (judicial activism vs. judicial restraint)?

Learning Standards:
CON-5.B.4: Political discussion about the Supreme Court’s power is illustrated by the ongoing debate over judicial activism versus judicial restraint.

Judicial Philosophy
Should judges interpret the Constitution according to the original intent of the framers, or apply evolving contemporary values to their rulings?

What determines how a judge or justice will vote? Do judges and justices have certain philosophies in interpreting the law and making rulings? Many people criticize the Court and its tendency to not only just interpret the law, but to make the law (policy) through its decisions.

1. Read the following article discussing the debate over original intent and a "living" Constitution.

Original Intent or Evolving Constitution? Two Competing Views on Interpretation.

2. Discuss in your group the following questions from the article:

In addition to "original intent" vs. "living constitution" judges will also sometimes practice either judicial activism or judicial restraint in their decision making. 

3. Look at the chart below comparing judicial philosophies and find a Supreme Court case that represents judicial activism and one that represents judicial restraint.

Judicial Philosophies

from: http://www.sparknotes.com/us-government-and-politics/american-government/the-judiciary/section4.rhtml

4. Read the following articles about judicial philosophy and watch the video on Stephen Breyer on activist judges.

Judicial activism is NOT just a liberal vs. conservative interpretation.

PBS.org: What We Know-and don't--about Neil Gorsuch's judicial philosophy

Review Videos:

A really good video by Justice Breyer on judicial activism vs. restraint:

Justice Breyer and Justice Scalia debate judicial philosophy:

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How the Supreme Court Works

Announcements:


Executive Branch Quiz Retakes: If you are not satisfied with your performance on the quiz over the executive branch, you may opt to take a retake of that quiz. Please complete at least six of the twenty-eight assigned Khan Academy modules before the retake.

READING: 441-477 in Edwards

UNIT TWO IDENTIFICATION TERMS
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Today's Essential Question: How do cases reach the Supreme Court and how are judicial decisions made?

Learning Standards:
CON-5.B.1: Precedents and stare decisis play an important role in judicial decision making.


How the Supreme Court Works
What happens at the Supreme Court? Today we are going to take a look behind the curtain and see how SCOTUS operates.

Here are a few key questions:

• How does a case reach the Supreme Court?
• What happens once a case is accepted?
• What are oral arguments like?
• What are the different types of opinions that the Court issues?

These are just a few of the questions we are going to try and answer today as we look at how the Supreme Court works.

Key Terms: writ of certiorari, Rule of Four, briefs, amicus curiae brief, majority opinion, dissenting opinion, concurring opinion, law clerks, precedent, stare decisis

First, take 5-10 minutes and read how the Supreme Court operates.

Next, let's look at a real case, Riley v. California. The Court granted cert in January of 2014.  It involves warrantless searches of cell phones and the possible violation of Fourth Amendment rights. ScotusBlog and Oyez both have quite a few resources on the case.

Here's an example of a brief and a couple of amicus curiae briefs (ACLU and Arizona, et al). The oral arguments illustrate the back and forth between Justices and attorneys.

Here is the official opinion of the Court in Riley v. California.

The court system in the United States is predicated on the principle of stare decisis, or following past precedents. Why is stare decisis so important for our legal system?

Precedent & Stare Decisis

The Appointment Process & Its Effect on the Courts

Announcements:

Executive Branch Quiz Retakes: If you are not satisfied with your performance on the quiz over the executive branch, you may opt to take a retake of that quiz. Please complete at least six of the twenty-three assigned Khan Academy modules before the retake.

READING: 441-477 in Edwards

UNIT TWO IDENTIFICATION TERMS
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Today's Essential Question: How does the appointment process and the Supreme Court's ideological make-up affect its decisions?

Learning Standards:
CON-5.B: Explain how the exercise of judicial review in conjunction with life tenure can lead to debate about the legitimacy of the Supreme Court’s power.
CON-5.B.2: Ideological changes in the composition of the Supreme Court due to presidential appointments have led to the Court’s establishing new or rejecting existing precedents.

The Appointment Process & Impact of Ideology on Court Decisions



Let's first take a look at the nomination process: The Path to Kavanaugh's Confirmation

How Brett Kavanaugh Will Change the Supreme Court

Now let's examine some charts on the presidential appointments and justice ideology. For each chart, come up with at least one observation. What is the main takeaway? What questions do you have? 

Supreme Court Nominees Senate Confirmation Votes

Review Videos

Federalist 78 & Brutus XV

Announcements:

Girls State: Any girls interested in attending Girls State this summer, please email Ms. Eikel (lauren.eikel@lps53.org) to attend an informational meeting this Thursday @9:00am

Executive Branch Quiz Retakes: If you are not satisfied with your performance on the quiz over the executive branch, you may opt to take a retake of that quiz. Please complete at least six of the twenty-three assigned Khan Academy modules before the retake.

READING: 441-477 in Edwards

UNIT TWO IDENTIFICATION TERMS
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Today's Essential Question: How do Brutus XV and Federalist 78 illustrate the differences of opinions regarding the power of the national government, specifically the judicial branch?

Learning Standards:
CON-5.A: Explain the principle of judicial review and how it checks the power of other institutions and state governments.

CON-5.A.1: The foundation for powers of the judicial branch and how its independence checks the power of other institutions and state governments are set forth in:

• Article III of the Constitution 
• Federalist No. 78 
• Marbury v. Madison (1803)

The debate over what the judicial branch should look like stretches back to the early days of the republic. Today, we are going to be looking at an Anti-Federalist view of the newly proposed constitution and its judicial powers, as well as Hamilton's defense of the judiciary in Federalist 78.

Debate Questions:

1)Be it resolved that Supreme Court Justices shall serve for terms of seven years but can be reappointed for an unlimited number of terms.

2) Be it resolved that all federal judges shall be elected by a general vote of the people for limited terms of office

Discussion Questions (read the above essays with these questions in mind):

1. According to Brutus, how does the Supreme Court of the United States differ from the highest court in England?
2. What is Brutus's attitude toward the Supreme Court of the United States? Find specific statements to support your opinion.
3. The Constitution helped to ensure judicial independence, in part, by having judges be appointed instead of elected, and by giving them a life term. Using Federalist #78, explain Hamilton’s arguments for appointment of judges and life terms. Why did he think that these things made the judiciary more independent? Why was this independence so important according to Hamilton? 
4. In the course of making his arguments in Federalist #78, Hamilton notes that “. . . the judiciary is beyond comparison the weakest of the three departments of power. . .” and that as such it can “never attack with success either of the other two.” After reading Federalist #78,  explain the reasons that Hamilton gave in support of his claims above. You should also consider whether this statement rings true today, given changes in society (access to information, the media, etc.).
5. How does Hamilton defend the use of judicial review?  If the judiciary can override laws passed by the legislature, then the judicial branch must be above the legislative branch—What does Hamilton say about this?

There is growing concern over the life tenure of federal judges, including several proposals to limit judges to set terms. The articles and videos below explore some of the criticisms and proposed reforms.

Revising the Constitution: We Need Term Limits for Federal Judges

Running the Numbers on Supreme Court Term Limits

Should the Constitution be amended to limit judicial terms? Why or why not?


Here's a HipHughes video to help you understand Federalist 78 and the independence of the judiciary.

Marbury v. Madison & Judicial Review

Announcements:

Executive Branch Quiz: Tuesday (tomorrow)
Review Sheet for Executive Branch quiz

Homework: Read Brutus XV and Federalist 78 for Wednesday. Annotate or take notes over both readings and be prepared to debate the points raised in each of the essays

Junior Girls: Do you love government? Want to gain leadership skills? Missouri Girls State may be just for you. If you want to learn more about this 8 day summer experience, there will be an informational meeting on Thursday, Dec. 12th @ 9:00 AM. Please contact Mrs. Eikel if you'd like to attend the meeting. 

READING: 441-477 in Edwards

UNIT TWO IDENTIFICATION TERMS
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Today's Essential Question: How is the principle of judicial review used to check the power of the other branches?

Learning Standards:
CON-5.A: Explain the principle of judicial review and how it checks the power of other institutions and state governments.

CON-5.A.1: The foundation for powers of the judicial branch and how its independence checks the power of other institutions and state governments are set forth in:

• Article III of the Constitution 
• Federalist No. 78 
• Marbury v. Madison (1803)

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Judicial Review

Where in the Constitution does it grant the federal courts, and specifically the Supreme Court, the power of judicial review?

Here is the text of Article III (The Judicial Branch):

Section 1- Judicial powers. Tenure. Compensation.

The judicial power of the United States, shall be vested in one supreme court, and in such inferior courts as the Congress may, from time to time, ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office.

Section 2 - Judicial power; to what cases it extends. Original jurisdiction of Supreme Court Appellate. Trial by Jury, etc. Trial, where

1. The judicial power shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states, between a state and Citizens of another state, between Citizens of different states, between Citizens of the same state, claiming lands under grants of different states, and between a state, or the Citizens thereof, and foreign states, Citizens or subjects. (This section modified by Amendment XI)

2. In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction. In all the other cases before-mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

3. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

Section 3 - Treason defined. Proof of. Punishment of.

1. Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

2. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.

One of the most important (if not the most important) Supreme Court cases is Marbury v. Madison. This video will help explain the root problems addressed in Marbury and more importantly, the Court's decision and its consequences. Please fill out this TEMPLATE and keep with your other important SCOTUS decisions.

Questions to Consider:
1. In the Court's opinion, is Marbury entitled to his appointment? If the Supreme Court of the United States had issued the writ of mandamus, how could it have forced Madison and Jefferson to comply with the order? What would have happened if they had ignored it? (In other words, does the Court have enforcement power?)
   
2.   In this case, Chief Justice John Marshall and the Court "gave up some power in order to get more." Explain. What power did they give up? What power did they gain? Why did the Court do this?

3.   Why does the judicial branch, as opposed to the executive or legislative branch, have the power of judicial review?  Should the other branches have a say?

4. Is judicial review a good idea? Should nine unelected judges be able to tell our elected representatives what they can and cannot do? Why or why not? Does the Marbury decision mean that legislators or members of the executive branch have no responsibility to judge the constitutionality of their own actions?

5. Are judges, protected with lifetime tenure and drawn generally from the educated class, more likely to be reflective and above the passing enthusiasms that drive legislative action? How political is the Court?

6. Could we have a workable system of government without judicial review? How does judicial review help check tyranny by the majority?

Additional Resources:

Marbury v. Madison (Street Law)

Marbury v. Madison (Oyez)

Marbury v. Madison (Constitution Center)

Here are a few more videos to help you understand the significance of Marbury v. Madison/judicial review:

Marbury v. Madison=JUDICIAL REVIEW!

This should become as instinctive and reflexive as answering your name. Guaranteed to be on the AP exam. 

Bureaucracy & Relations with Other Institutions

Announcements:

Executive Branch (Presidency & Bureaucracy) Quiz: Tuesday, December 10th
Review Sheet for Executive Branch quiz

Congressional Quiz Retakes: If you are not satisfied with your performance on the quiz over the legislative branch, you may opt to take a retake of that quiz. Please complete at least six assigned Khan Academy modules before the retake.

READING: 409-440 in Edwards

UNIT TWO IDENTIFICATION TERMS

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Today's Essential Question: What is the relationship of the bureaucracy to other institutions and how can its power be kept in check?

Learning Standards:
PMI-2.D: Explain how the president ensures that executive branch agencies and departments carry out their responsibilities in concert with the goals of the administration
PMI-2.D.1: Presidential ideology, authority, and influence affect how executive branch agencies carry out the goals of the administration.
PMI-2.C: Explain how Congress uses its oversight power in its relationship with the executive branch.
PMI-2.E: Explain the extent to which governmental branches can hold the bureaucracy accountable given the competing interests of Congress, the president, and the federal courts.
PMI-2.C.1: Oversight and methods used by Congress to ensure that legislation is implemented as intended are represented by:

• Committee hearings 
• Power of the purse 

PMI-2.C.2: As a means to curtail the use of presidential power, congressional oversight serves as a check of executive authorization and appropriation.
PMI-2.D.2: Compliance monitoring can pose a challenge to policy implementation.
PMI-2.E.1: Formal and informal powers of Congress, the president, and the courts over the bureaucracy are used to maintain its accountability.

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Bureaucracy & Relations with Other Institutions

The size and power of the bureaucracy has grown immensely over the last century and many contend that it wields a disproportionate amount of influence in our governmental system. Today, we will look at the concerns about the bureaucracy, its interactions with other branches, and what checks are imposed on the bureaucracy by the other branches.

First, read this article, The Rise of the Fourth Branch of Government

What is the author's main argument? What supporting evidence does he have? What can be done to address the problem? As you read, either annotate the GoogleDoc (make a copy) or jot down information in your notes.

 







Link to Bureaucracy Video

Types of Bureaucracies

Announcements:

Bureaucratic Agencies Quiz: Thursday, December 5th

Executive Branch (Presidency & Bureaucracy) Quiz: Monday, December 9th

Congressional Quiz Retakes: If you are not satisfied with your performance on the quiz over the legislative branch, you may opt to take a retake of that quiz. Please complete at least six assigned Khan Academy modules before the retake.

READING: 409-440 in Edwards

UNIT TWO IDENTIFICATION TERMS
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Today's Essential Question: What are the different types of bureaucracies?

Learning Standards:

• PMI-2.A: Explain how the bureaucracy carries out the responsibilities of the federal government.
• PMI-2.A.1: Tasks performed by departments, agencies, commissions, and government corporations are represented by:
• Writing and enforcing regulations 
• Issuing fines 
• Testifying before Congress 
• Issue networks and “iron triangles”

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Types of Bureaucracies

The federal bureaucracy is a complex, hierarchical structure that consists of hundreds of individual departments, agencies, bureaus, commissions, etc. Today, we will look at how to organize the various bureaucracies and how the different types of bureaucracies carry out the various responsibilities of the federal government. The main ways to classify bureaucracies are departments, independent regulatory agencies, and government corporations.





For Review:

The Bureaucracy: How is it Structured?

The Organization of the Bureaucracy

Bureaucratic Tasks

Announcements:

Bureaucratic Agencies Quiz: Thursday, December 5th

Executive Branch (Presidency & Bureaucracy) Quiz: Monday, December 9th

Congressional Quiz Retakes: If you are not satisfied with your performance on the quiz over the legislative branch, you may opt to take a retake of that quiz. Please complete at least six assigned Khan Academy modules before the retake.

READING: 409-440 in Edwards

UNIT TWO IDENTIFICATION TERMS
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Today's Essential Question: How do bureaucracies help carry out the responsibilities of the federal government?

Learning Standards:

PMI-2.A: Explain how the bureaucracy carries out the responsibilities of the federal government.

PMI-2.A.1: Tasks performed by departments, agencies, commissions, and government corporations are represented by:

• Writing and enforcing regulations 
• Issuing fines 
• Testifying before Congress 
• Issue networks and “iron triangles”

PMI-2.B: Explain how the federal bureaucracy uses delegated discretionary authority for rule-making and implementation.

PMI-2.B.1: Discretionary and rule-making authority to implement policy are given to bureaucratic departments, agencies, and commissions, such as:

• Department of Homeland Security 
• Department of Transportation 
• Department of Veterans Affairs 
• Department of Education w Environmental Protection Agency (EPA) 
• Federal Elections Commission (FEC) 
• Securities and Exchange Commission (SEC)

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Bureaucratic Tasks and Administrative Discretion

The role of the federal bureaucracy is to help implement and carry out the laws. However, many bureaucracies also have broad discretionary and rule-making authority (sometimes referred to as administrative discretion) that enable bureaucracies to have quasi-legislative and quasi-judicial powers.

Why is it advantageous to grant these powers to bureaucracies instead of Congress? Why does Congress allow this to happen? What drawbacks are there to this system?

1. Watch this Khan Academy video on how the bureaucracy uses its delegated discretionary authority on rule-making and implementation. Please use your earbuds while watching the video.



2.  Read this article, Should Agencies Decide Laws? and answer the following questions in your notes.

• Explain what is meant by the Chevron deference. What is the main argument in favor of the Chevron deference?
• Why do some, like Justice Gorsuch, oppose the Chevron deference?
• How have Republicans and Democrats both used the Chevron deference to their advantage?
• In your opinion, should the Chevron deference be overturned? Why or why not?

3. Next, we are going to look at various bureaucracies and research the various tasks that they perform to help carry out the responsibilities of the federal bureaucracy. Choose one of the listed  bureaucracies below. For your bureaucracy you must conduct research and find examples of the bureaucracy engaging in each of these different activities:

• Administrative discretion or rule making-find an example where the bureaucracy was involved in rule-making or deference in administering the law
• Enforcement--find an example where the bureaucracy is carrying out intended policy or fining/punishing violations of a policy
• Congressional Testimony--find an example where the bureaucracy is testifying in a congressional committee (could be budgetary, policy, or congressional oversight)

Record your findings either in a GoogleDoc with links or include them in your notes. Be prepared to share your research in class tomorrow.

You should first start with the webpage of the bureaucratic agency and then move on to Google News and other sources (Washington Post) to find examples. Try to use recent examples (within the last 2-3 years). 

Bureaucratic Agencies

1. FDA

2. EPA

3. Department of Education

4. Department of Veterans Affairs

5. FEC

6. FCC

7. Department of Homeland Security

Video Review

Bureaucracy Basics

Announcements: Welcome Back!! 

Bureaucratic Agencies Quiz: Thursday, December 5th

Executive Branch (Presidency & Bureaucracy) Quiz: Monday, December 9th

Congressional Quiz Retakes: If you are not satisfied with your performance on the quiz over the legislative branch, you may opt to take a retake of that quiz. Please complete at least six assigned Khan Academy modules before the retake.

READING: 409-440 in Edwards

UNIT TWO IDENTIFICATION TERMS
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Today's Essential Question: What is the role of the bureaucracy in our federal government?

Learning Standards:

• PMI-2.A: Explain how the bureaucracy carries out the responsibilities of the federal government.
• PMI-2.A.1: Tasks performed by departments, agencies, commissions, and government corporations are represented by:
• Writing and enforcing regulations 
• Issuing fines 
• Testifying before Congress 
• Issue networks and “iron triangles”

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Bureaucracy Basics
Today, we begin our look at the federal bureaucracy and how it works to implement legislation passed by Congress or executive orders from the President. Our main questions for today are:

• What is the federal bureaucracy?
• What has led to the growth of the federal bureaucracy?
• What does the appointment process look like for the federal bureaucracy?

The bureaucracy is the part of the government (executive branch) that is responsible for enforcing and implementing the laws. There are various agencies, bureaus, departments, and commissions that have been established over the years to carry out these various tasks. Today, you will look at some of the more well known and relevant bureaucracies in our federal government.

Make a copy of this Google Document and fill in the appropriate information. You should be able to correctly describe/identify the policy area and types of legislation that the bureau/agency deals with. There will be a quiz over these bureaucracies on Wednesday!

How the Trump Era is Changing the Federal Bureaucracy

Federalist 70

Announcements:

Congressional Quiz Retakes: If you are not satisfied with your performance on the quiz over the legislative branch, you may opt to take a retake of that quiz. You must complete at least six of the assigned Khan Academy modules before the retake.

READING: Federalist 70 (read and annotate for Monday)

READING: 341-378 in Edwards

UNIT TWO IDENTIFICATION TERMS

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Today's Essential Question: What arguments does Hamilton make in Federalist 70 supporting a unitary executive?


Learning Standards:
CON-4.C: Explain how presidents have interpreted and justified their use of formal and informal powers.

CON-4.C.1: Justifications for a single executive are set forth in Federalist No. 70.

CON-4.C.2: Term-of-office and constitutional-power restrictions, including the passage of the Twenty-second Amendment, demonstrate changing presidential roles.

CON-4.C.3: Different perspectives on the presidential role, ranging from a limited to a more expansive interpretation and use of power, continue to be debated in the context of contemporary events

Federalist 70
Federalist 70 addresses concerns about the executive branch in the newly proposed Constitution. Opponents feared that a single executive would lead to tyranny, while Hamilton defends the necessity for a unitary executive with energy to carry out the duties of the President to help maintain security.

Using Federalist 70, develop arguments that support the idea of a single executive rather than a pluralist executive or an executive constrained by a council. You will have ten minutes in your group to discuss and prepare your arguments and points before we discuss in class and you try to change my mind.

Here are some of the questions we will be looking at:

QUESTIONS

1. What benefits does a strong presidency provide to a representative democracy?

2. What are four ingredients of an energetic executive?

3. What problems might arise if the presidency were split between two people or consent of a council?

4. President Truman had a sign on his desk that stated, "The buck stops here."

How does this support Hamilton's argument of a single executive?

5. Why is a single executive permissible in a republic, but may lead to tyranny in a monarchy?
What role does the legislature play?

Video Review: