Looking at the article Depoliticizing Administrative Law by Miles and Sunstein, we explore the problem of partisanship in appellate and Supreme Court reviews of agency decisions. The evidence abounds that judicial review of agency actions is highly politicized. Republican appointees are much more likely to invalidate liberal decisions while Democratic Appointees are just as likely to invalidate conservative decisions. If Judges are assigned to random three judge panels and the panel is inadvertently composed of an all Republican or an all Democrat panel then the decisions that come out of those panels can play a significant role in regulation decision making. The biggest issue is that if these agencies are not being treated the same, then there is a risk to the rule of law based upon these politicized voting decision since the future of important decisions can be effectively swayed by a panel of judges divided among political lines. There is a lot of evidence that is presented showing that judicial behavior is, in fact, highly politicized in administrative law. This evidence leads to a question of how to remove the politicized bias in administrative review decisions. Is it even possible and what are the implications of the effects of any change that may be made? Article Summary The article is broken down into 3 sections. The first being the empirical evidence that is used to prove the authors thesis that there is something very wrong with the politicizing of administrative law decisions. The authors explore the key findings to Segway into the second section. Section two explores the evidence and uses interpretive questions to explore the seriousness of the problem. The final section offers up three potential s... ... middle of paper ... ...truly looking at the issues. The second Prong approach would be to ban RRR and DDD panels and require a mixed panel. The facts show that mixed panels are not shown to vote in a politicized fashion. Thus we can see that there is more reason to trust the decisions of the mixed panels than the unified panels. Another option would be to require five panel teams instead of the three. That way you don’t have to worry about the randomness of assignment. The odds that you will get a RRRRR or DDDDD team is low and if it were to happen, then additional safeguards could be put in place to review the decision (Shapiro & Murphy, 2012) The politicization of judicial decisions is an important one and understanding the empirical data that proves it occurs is the first step in deciding whether we need to address this problem and if so what solutions will be implemented.
Often, when the discussion of American bureaucracy is broached in conversation, those holding these conversations often think of the many men and women who operate behind the scenes within the government. This same cross section of Americans is looked upon as the real power within the federal government and unlike the other branches of government, has little to no oversight. A search of EBSCO resulted in the following definition, an organization “structure with a rigid hierarchy of personnel, regulated by set rules and procedures” (Bureaucracy, 2007). Max Weber believed that a bureaucracy was technically the most efficient form of organization, one structured around official functions that are bound by rules, each function having its own specified competence (2007). This wide ranging group of Americans has operated within the gaps, behind the scenes, all under the three core branches of government: the legislative, executive, and judicial branches. The division of government into three branches and separate powers gives each branch both exclusive powers and some additional power...
The strategic model acknowledges that judges seek to achieve policy goals, but it also acknowledges that they are subject to certain restrictions in doing so. Since they cannot act accordingly to preference, they must act strategically to achieve their goals given by the restrictions. It argues that like politicians, justices make their decisions based off other’s decisions or make their decisions while trying to determine how another person will react from it. This decision style says justices would base their decisions on the influence of other justices.
According to Cornelius Kerwin, "Rulemaking is the single most important function performed by agencies of government Rulemaking refines, and in some instances defines, the mission of every government agency. In so doing it provides direction and content from budgeting, program implementation, procurement, personnel management, dispute resolution, and other important government activities" (Preface XI). This is the foundation for the book, Rulemaking. The whole text primarily revolves around this statement. Throughout the book Kerwin's central theme is that rulemaking is the single most important function that any government agency has within its possession. Much like other admin law books he discusses how those agencies with their rulemaking powers interpret legislation and proceed forward with making policy.
The Brethren: Inside the Supreme Court, by Bob Woodward and Scott Armstrong, gives the public an intimate description of the justices who serve on the Supreme Court in the 1969-1976. This book also gives an unprecedented look at the daily work and personal lives of the justices. The book describes the relationships the justices have with each other and the relationships they have with their clerks. Woodward and Armstrong give the reader insight to the justice's personalities and their personal agenda. There is an appearance that the justices use their positions on the Supreme Court to push their ideologies and create laws instead of enforcing the laws set by congress.
In this essay, I will explain why Texas should retain the partisan election of judges. Texas is one of the few states that elect their judges using a Partisan voting method. Partisan elections can be unfair and can misinform the voter. A high legal position such as a judge should never be chosen in such a manner. Partisan elections often cost more than nonpartisan elections in campaigning. Partisan elections are also more likely to lead to straight ticket voting or mindless voting. Partisan elections also lead to more campaign contributions and can increase the power of constituencies. Lastly partisan elections can cause an imbalance in equal represent the population. Therefore, Partisanship voting does not belong in the courts of Texas and
Judicial Tyranny: The New Kings of America? Is a conglomeration of articles and short essays that attempts to expose the federal court’s relatively recent intrusion into our way of life by way of immoral legislative influence; made possible by presidents, congressmen, and apathetic voters who have relinquished their consent without contest. The author, Mark I. Sutherland and his associates believe that the Constitution’s system of checks and balances between the three branches of government has been usurped by an overreaching, immoral federal court system. The book explores how Judges have been influencing and shaping social and political policy for years by legislating from the judicial bench. In short, Americans have exchanged the rule of law for the rule by the judges. However, it does a poor job in addressing other major issues concerning the federal court system as a whole.
federal courts: A content analysis based on agency theory. PhD diss., The George Washington University.
In William Hudson’s book, American Democracy in Peril, he writes about different “challenges” that play a vital role in shaping the future of the United States. One is the problem of the “imperial judiciary”. Hudson defines its as that the justice system in the United States has become so powerful that it is answering and deciding upon important policy questions, questions that probably should be answered by our democratic legislatures. Instead of having debates in which everyone’s voices are heard and are considered in final decision-making process, a democratic-like process; we have a single judge or a small group of judges making decisions that effect millions of citizens, an “undemocratic” process. Hudson personally believes the current state of judicialized politics is harming policy decisions in Americans. According to him, the judicial branch is the “least democratic branch”, and ...
Such precedent setting decisions are usually derived from the social, economic, political, and legal philosophy of the majority of the Justices who make up the Court, and also represent a segment of the American population at a given time in history. Seldom has a Supreme Court decision sliced so deeply into the basic fabric that composes the tapestry and direction of American law or instigated such profound changes in cherished rights, values, and personal prerogatives of individuals: the right to privacy, the structure of the family, the status of medical technology and its impact upon law and life, and the authority of state governments to protect the lives of their citizens.(3-4)
Modern Bureaucracy in the United States serves to administer, gather information, conduct investigations, regulate, and license. Once set up, a bureaucracy is inherently conservative. The reason the bureaucracy was initiated may not continue to exist as a need in the future. The need or reason may change with a change in the times and the culture needs. A bureaucracy tends to make decisions that protect it and further it’s own existence, possibly apart from the wishes of the populace. It may not consistently reflect what might be optimal in terms of the needs and wants of the people. Local governments employ most of the United States civil servants. The 14 cabinet departments in the U.S. are run day-to-day by career civil servants, which have a great deal of discretionary authority.
Hall, Kermit L, eds. The Oxford guide to United States Supreme Court decisions New York: Oxford University Press, 1999.
In “Constitutional Democracy and Bureaucratic Power,” Peter Woll states that our system of government, “. . in many ways supported bureaucratic organization and functions independent of the president,” (311). According to Woll, the Framers intended to establish an independent bureaucracy, as they gave Congress substantial power over the administrative “branch.” However, because of the bureaucracy’s independence, Woll asserts that, though he possesses the authority, the president often lacks the power to control the bureaucracy. Naturally, this can lead to the corruption and inefficiency of the administrative process. Also contributing to this inefficiency and corruption, is the very nature of the bureaucracy itself. By definition, a bureaucracy is a “large, complex organization of appointed officials,” (“American Government: Institutions and Politics”); this inherent complexity causes many of the issues of bureaucracy. In discussing bureaucratic agencies’ budgets, James Wilson claims that “. . since measuring the output of a bureau is often difficult. . .the bureau has a great deal of freedom within which to seek the largest possible budget,” (“The Rise of the Bureaucratic State”, Wilson). Essentially, the vastness of each bureaucratic agency makes close scrutiny a time consuming and futile effort. Additionally, Woll contends that “. . the three branches do not always use to the fullest extent their authority to regulate the bureaucracy,” (“Constitutional Democracy and Bureaucratic Power”, 314). This assertion suggests that perhaps the source of the bureaucracy’s problems lie, not within the institution itself, but within the reluctance of the other branches of government to regulate it. Wilson proffers another explanation for the bureaucracy’s inefficiency in his scrutiny of the USPS, arguing that
The significant impact Robert Dahl’s article, “Decision-Making in a Democracy: the Supreme Court as a National Policy-Maker” created for our thought on the Supreme Court it that it thoroughly paved the way towards exemplifying the relationship between public opinion and the United States Supreme Court. Dahl significantly was able to provide linkages between the Supreme Court and the environment that surrounds it in order for others to better understand the fundamental aspects that link the two together and explore possible reasoning and potential outcomes of the Court.
Frank J. Goodnow’s “Politics and Administration,” infers that politics and administration cannot be divided and are in need of each other to function. However, politics are superior to administration. Goodnow’s further analyzes and identifies three forms of authorities that enforce and implements states will. The first responsibility of authority is to respect the right of the people when conflicts ascend between either private or public matters. The second is judicial authorities also referred to as executive authorities that ensure the needs and policies of the state are executed. The third authority also referred to as “administrative authorities,” focuses on the mechanical, scientific and business authorities pertaining to the government.
What Is Politics On hearing the word politics, what usually springs to mind are images of government, politicians and their policies or more negatively the idea of corruption and dirty tricks. The actual definition seems to have been obscured and almost lost by such representations and clichés that tend not to pinpoint the true essence, which defines this thing, called politics. In order to make an attempt at a definition of politics a systematic approach is required. To begin with, a brief historical overview will be considered, to understand the origins of politics. Following this, different core concepts, which are imperative to a definition of politics, will be discussed, in the hope to discover a true and fair interpretation of the word politics.