Govt 4: How does the US government work? (v1.0)

  A key reference is Professor Jennifer Nicoll Victor PhD of George Mason University.

This is the second of a two-part series of essays. The first covered the structure of government and the constitution. First, I would like to briefly dwell on three core parts that permeates much of our politics, political institutions and discussions, laws, and court rulings – federalism, civil liberties, and civil rights – before digging into how our government works (its mechanics).

The first thing to explain is federalism which is a key concept in the US constitution. Federalism is a system of government where sovereignty is divided between the federal government and one or more levels of local government. In the US, the sovereignty comes from the people because it is a democracy. People give some power to the federal government, some to the state (and in some cases city, or county) and some powers are shared between them (called concurrent powers). Federalism helped protect individual liberties better at that time (framers thought it could be better protected if there were two sovereign levels to champion it and adjust to local variances) and functioned as a check on federal power. One driver also at that time was slavery, where southern states wanted to keep it because their economy was fundamentally based on it and needed the sovereignty to do so. However, there is a direct tradeoff between liberty and security. By giving states some of the sovereignty, they tried to avoid tyranny from the federal government over security. They tried to strike a balance. As an example, Gun laws is a classic example. Each state has their own gun laws. But as mass shootings proliferate, should there be a federal law restricting it to some extent? State government have the clear power for conducting elections, regulating state and local commerce, and protection of public health and safety. Concurrent powers are taxation, borrowing money, chartering banks, taking private property, and law enforcement. The federal government has exclusive powers over coining money, regulating commerce, levying, and collecting taxes, declare war or regulate the postal system. There is also a “elastic” clause in the constitution where congress has the power to pass laws for the proper execution of the federal powers. This gives the federal government the power to assert authority on something that might not be explicitly listed as its powers. There is also a “supreme” clause that asserts that the federal government is supreme to the state government.

Federalism played out historically before 1930 with state powers being the stronger. Federal government gained strength with control over interstate commerce, regulating work conditions, mandate minimum wage, and protect rights of workers to organize with supreme court rulings. These rulings triggered a sea change in how the judiciary started interpreting the constitution allowing federal government to regulate more things. In the latter part of the 20th century, federal government had considerable powers. The higher power of the purse of the federal government also gives the federal government leverage over states. As an example, interstate highway funds provided the federal government the leverage to get states to adopt a national speed limit. Other examples are pushing states to implement federal policies like poverty, housing, or nutrition with federal grants. Now in the 21st century, things are swinging towards states again in some cases. For example, the supreme court blocked a law congress passed banning handguns near public schools delegating that to the preview of states. It knocked down the federal government’s objections to Oregon’s assisted suicide law. This tension is baked into our institutions and the constitution of the United States. The tension is there by design. If it works right, it keeps the power of both in check at the same time provides enough power for each to address serious problems.

Civil liberties and Civil Rights are core features of American political institutions. They are also particularly important to me so I will talk about them a bit. Civil Liberties are an individual right protected by the constitution from government infringement The key liberties codified in the constitution are in the bill of rights and other amendments. The due process clause in the 5th and 14th amendments together have been interpreted by the supreme court to also guarantee civil liberties at the state level through selective incorporation (ruled on one liberty at a time). Only legislatures can create new laws. Courts rule on cases brought before them and through a series of rulings create a body of precedents.

The equal protection clause of the 14th amendment is the foundation of civil rights. Civil right is the right of a group of people to be treated equally or fairly by the government. The purpose is to make sure the laws of government are just and applied fairly. Fairly does not mean necessarily equally. I will only focus on African Americans and women to keep it short. Before the emancipation proclamation and the civil war followed by the abolishment of slavery, slaves had little or no rights. During the era of Jim Crow, African Americans experienced extreme discrimination and injustices were brutal. The supreme court brought in the era of separate but equal where there was massive segregation. This persisted for half a century. In 1954 legal segregation was abolished by the supreme court and busing started and segregation gradually faded. MLK advanced civil rights further. The 1964 civil rights act and the 1965 voting rights act by Johnson were watersheds. In 2013 the supreme court weakened it a bit resulting in some backsliding. For example, the court ruled that while minority status being a factor was permissible to achieve racial diversity, quotas were not. Also, they overturned a small but important part of the voting rights act (nullified section 5 that requires federal review of changes to voting laws in certain states). Women got the right to vote in 1920 with the 19th amendment. The Equal Rights Amendment for women was proposed in 1923. It was passed by congress and currently has the 38 state votes but likely will face legal challenges and is not yet ratified. It is not unusual for an amendment to take an exceedingly long time to be ratified.

Congress (house) does four things. Law making, Oversight of federal bureaucracy, Services to constituents, and Representation of districts. Will focus on passing a law. Legislative ideas come from various sources – organized interest group, personal interest, constituents (or a representative’s perception of their needs), campaign pledge, etc. The bill is sponsored, agreements reached, the office of legislative counsel codifies it, and the bill is introduced by dropping it in a box called a hopper. It is then assigned to a congressional committee and a subcommittee. The speaker may refer it to multiple committees. They could be asked to work concurrently or sequentially. Many bills die due to committee inaction. Committee may hold a hearing. Any committee member can have a limited amount of time to ask questions of witnesses. If the committee decides to proceed, the bill is marked up with amendments and revisions. At the vote, the bill passes out of committee or dies. Only 8% of bills make it out of committee. Partisanship plays a significant role. The majority party has most seats and the chair in committees. They control the agenda. The majority party controls all the key positions in chamber including the speaker of the house. Before coming to the floor, it must pass the rules committee. It can decide among other things the amount of time to debate and if it can be amended. When it arrives at the house floor, it might have to wait on a calendar (controlled by majority party). There are 435 members. It needs 218 to pass the house. It then goes to the senate.

In the senate, it then starts all over again. The senate process is similar with some exceptions. There is no rules committee. Instead, a floor procedure called unanimous consent (all 100 senators agree on rules) after majority and minority agree offline on rules. At that time, any senator could object and stall it in which case renegotiation can happen. After debate and vote. If the house and senate have passed the exact same version of the bill, it goes to the president for signature. If not, it must be reconciled. One approach is for one chamber to agree to adopt the other’s bill. That body then must pass the other body’s bill intact. 80% of bills use this method. Another is amendment exchange until both pass the exact same bill. 15% of bills use this method. Another method is to form a temporary conference committee from both chambers to resolve differences. A conference report is produced with a revised version of bill. When a conference report comes up for a vote in both chambers, it cannot be filibustered in the senate. It cannot be amended by either chamber. It is a straight up or down vote. If it passed both chambers, the bill is passed and goes to president for signature. 5% are reconciled by conference committee.

The president can sign the bill onto law. The president can veto the bill. The veto can be overridden with a 2/3 vote in each chamber. If the president does nothing, if the congress is still in session, the bill becomes law after 10 days. If congress is out of session, it is a pocket veto, and the bill dies.

There are some differences between the chambers that is important. Senate has a filibuster rule. The bill must pass the cloture vote with 60% of the vote to end debate and for the bill to advance to a final vote. This gives the minority party significant leverage. The minority party can also use it to obstruct. Some things like presidential executive nomination confirmations or justice confirmations require only a simple majority. Changing the filibuster rule for any area to a simple majority by any party is called the nuclear option. In the house an amendment must be germane to the bill’s subject. Debate rules are very restricted and limited in the house. House committees are quite powerful. Bills dealing with taxes must start in the house. International treaties are passed in the senate with a 2/3 vote. Presidential nominations are confirmed by senate.

The president is elected by the electoral college (independent electors selected by each state and equals number of house representatives plus number of senators per state plus three for district of Columbia = 538). Each party in the state selects a slate of electors that pledge to vote for party’s candidate if the candidate gets the most votes. Maine and Nebraska are a little bit different. The correct slate is chosen based on the vote.

The president has just a few constitutionally outlined formal powers. Veto Legislation. Commander in Chief of the US armed forces, Executive service and judicial appointments, and issue pardons. The modern presidency has many more powers. They are implied or evolved through norms. Also, from time-to-time congress has delegated some powers to the presidency typically in foreign policy and military matters. These are typically for crises or national security. The roles of head of state (representative of US) and head of government (chief executive of government) also apply to the presidency. Although the senate constitutionally controls treaties, in practice the presidency does all the negotiations and hammers out the agreement. The presidency makes executive agreements (bypassing the senate) and the route of a formal treaty requiring 2/3 vote in senate is much rarer. This is part of the expansive head of state role. The head of government role encompasses the role of chief executive of government (the white house office and the vast executive bureaucracy is not really mentioned in the constitution). The president nominates (most subject to senate approval) justices and judges, officials of executive agencies, cabinet level heads, and ambassadors. The president can call a special session of congress or an adjournment (both very rare). The president delivers the state of the union address (not really enumerated in the constitution – just a norm). The president often articulates a legislative agenda or policy goals at this event (the president however has no power to introduce legislation). The presidency often works with legislative leadership to push legislative ideas. Annually, the presidency submits a proposed budget request for a fiscal year to the legislature (a huge focus of the office of management and budget – OMB). If the majority party in house and senate is of the same party, the legislature uses this as a draft and starting point. Otherwise, the legislature works on the budget separately and if they come to an agreement, they work on appropriations (where congress spends the money). If congress does not reach agreements in time, they pass a Continuing resolution with a time limit. If congress fails to pass a continuing resolution the government partially or fully shuts down.

Executive privilege and executive orders are not outlined in the constitution but is part of the presidency. Executive privilege is a legal claim that a president uses when challenged, to withhold information (a claim of legal immunity). But a president can be impeached by congress for unbelievably bad or corrupt behavior (will not go further on this). Famously Nixon lost his specific claim of executive privilege in the supreme court. Clinton also lost his specific claim. Trump greatly expanded executive privilege claims, but supreme court has not ruled on all of them but did reject his claim out of office to withhold documents during his term, from congress. Executive orders are an instruction from the president that has the force of law. Congress or the courts can nullify it. As commander in chief of the armed forces, the president leads as a civilian – not a military officer. This is intentional to check the military power through political forces. Constitutionally, only congress declares war, but presidents have often gotten the US into many wars and conflicts. The war powers act requires the president to explain any military action within 48 hours of troop deployment. Further, it requires the president to terminate any troop deployment within 60 to 90 days unless congress extends or authorizes it. Also, congress can compel troop recall after 90 days. However, the act is not always followed, and the bottom line is congress is ineffective in foreign policy or wars. Accusations of violations of war powers act were made by congress for Libya (Obama) and Yugoslavia (Clinton) to name a few. But few presidents on both sides take it too seriously. Here is a good reference to challenges to the act: https://www.history.com/topics/vietnam-war/war-powers-act

An adequate treatment of the federal bureaucracy is not viable for this blog. But the key departments whose heads form the cabinet are:

1. The defense department

2. The state department

3. The treasury department

4. The department of Justice

5. The department of homeland security

6. The commerce department

7. The interior department

8. The transportation department

9. The department of Housing and Urban Development

10. The department of health and human services

11. The labor department

12. The department of agriculture

13. The Department of education

14. The department of Energy

15. The department of Veterans Affairs

16. The office of Science and Technology Policy

Other key officials with cabinet rank are:

1. The director of the office of management and budget

2. The administrator of the Environmental Protection Agency

3. The US Trade representatives

4. The US Ambassador to the UN

5. The chairperson of the council of economic advisors

6. The administrator of the small business administration

7. Director of National Intelligence

8. Trade Representative

9. The white House Chief of Staff

The judiciary is structured with the supreme court at the top (with 9 justices), 13 appeals courts (with 179 judgeships) in the middle and 94 district courts at the bottom (with 677 judgeships). This is separate from state supreme court, state appeals court and state district court. The federal supreme court is supreme over the state supreme court and can hear challenges that were ruled on in the state supreme court. In addition, there is court of federal claims (property compensation) and the tax court. The loser of a court case in a district court can appeal to the appeals court. The loser of an appeal can petition the supreme court to take the case. For the supreme court to accept it, three things must be true. There must be controversy - a point of contention the court can settle. There must be standing – the parties would be affected by the outcome of the case. Lastly there must be mootness – the question before the court has not already been settled. These are just necessary conditions and not sufficient. The supreme court hears few cases (100 or less per year). Typically, the court agrees to hear the case if four out of nine justices agree to hear it. The chances of being heard increases if there is a conflict in two lower courts, civil rights cases, or where federal government is an appellant. When the supreme court renders an opinion, it sets a precedent that has the force of law, and subsequent cases in lower courts must follow that precedent.

There are three types of judicial cases – criminal cases, civil cases, and administrative cases. Criminal cases can result in jail time, fines, or execution. Civil cases can result in financial damages. Administrative cases involve the power of government. Judicial authority is contained in the constitution. The second source of authority is the judiciary act of 1789. The power to declare laws unconstitutional is called judicial review and was established in 1803 in a supreme court decision. This is the most significant authority the supreme court has which allows it to declare the whole or a part of a law passed by the legislature unconstitutional.

The US is a constitutional democracy, and almost all of us would not want to live in any other system. However, there are several factors that could cause our government to not work properly or for the foundations to be weakened.

People follow supreme court decisions because of trust they have on the integrity of that body. There are two things that could significantly reduce that trust. The court nomination process in recent years has become extremely political. This leads people to question if the outcome of such a process could plausibly result in a court that is balanced, is free of political ideology, and focused on the limited role of interpreting the law. The second thing that might significantly reduce the trust is the shadow docket. This is meant to super accelerate decisions for extreme emergencies and just about every step in the process is truncated or eliminated. It is not the normal transparent process. In more recent years the court has chosen to use the shadow docket to rule on highly controversial charged cases which are not emergencies at all. Once trust evaporates, the weight of the rulings greatly dilutes and people’s acceptance of it suffers. This greatly weakens the rule of law that is essential.

Government really functions through collaboration for the common good between states and federal, legislature and the executive, between the chambers of the legislature and between the majority and minority party in a chamber. With the extreme polarization in recent years, many of these are breaking down if the two groups are from different parties. For example, we have seen several law makers focusing on sound bites that their base cheers, or antics that are provocative or outrageous to appease their base. We have seen increased votes purely along party lines. We have seen acts which can only be called obstruction to move ahead. We have also seen increased polarization in media with people gravitating to the media outlets that match their orientation, and the media outlet further accentuates the divide. One direct consequence of extreme polarization is increased use of executive orders by presidents which is not how laws are supposed to be created. We cannot have governance by fiat. All of this is of great concern. Some of the problems we see today can be traced to the dominance of only two parties in our political sphere and the fierce party loyalty or tribalism that is actively cultivated that you see. Often these trumps representing your constituents or working on the common good. The founders were uneasy about political parties. Political parties were entirely omitted from the US constitution. Many competing parties force collaborations and coalitions and might be better.

Election integrity is the bedrock of a democracy and the functioning of a government. In recent years we have seen an increased rhetoric of claims of fraud with no proof, accusations of voter suppression without the legal threshold being met, and state laws passed with claims by detractors of partisan legislative intervention in the mechanics of elections that corrupts the results and gerrymandering by partisan legislatures of congressional maps. Also, it is quite clear an attempt was made to overturn the result of an election during congressional certification in 2021. The electoral count act must be strengthened against future such attempts. All this causes faith in elections to evaporate, and people will not accept election results. I am not able to rule on this. It is critical that the judiciary rapidly and transparently and fairly rule on all these. Once trust in elections evaporate, democracy dies.

The system of checks and balances are critical for government to work properly. Many presidents have used executive privilege claims. This is not spelled out in the constitution. The original intent was to protect the country from harm from information disclosure and to allow the presidency to function in an honest and candid way. However, using it to obstruct legitimate congressional oversight or to hide criminal behavior is a danger to proper execution of government. The court has ruled in some cases but a clearer demarcation of when it applies is sorely needed. Also needed is clear demarcation on the pardon power to avoid its use to hide criminal behavior by a president or dole out favors to criminal cronies.

Campaign finance is a complex subject. However, if the elected official has loyalties elsewhere than his constituents or the common good, or if the people perceive so, then the whole fabric of democracy is weakened and corrupted and the laws that come out don’t further the constituents nor the common good.