THE JUDICIAL BRANCH
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)
CON-5.A.1
Explain the principle of judicial review and how it checks the power of other institutions and state
governments.
2
ARTICLE III OF THE CONSTITUTION
 Section 1 – Structure of Federal Courts & Appointment of Judges
 Section 2 – Jurisdiction of Courts
 Federal Courts for Federal Laws
 Supreme Court has original jurisdiction over cases where states and
ambassadors are involved
 Criminal Cases handled at the state level (except impeachment)
 Section 3 - Treason
3
ORGANIZATION OF FEDERAL COURT
SYSTEM
© 2011 Pearson Education, Inc. All Rights Reserved
FEDERALIST #78
Reading Strategies
1.
Read to describe the author’s claim(s), perspective, evidence and
reasoning
2.
Read to explain how the author’s argument or perspective relates to
political principles, institutions and behaviors
3.
Read for examples of how a president could justify his use of formal and
informal powers.
5
*FEDERALIST #78
 Perspective: Alexander Hamilton explaining the merits of the Constitution,
specifically justifying the need for an independent Judiciary.
 Claim: An independent Judiciary is necessary for the preservation of liberty
and is inherently weak.
 Evidence #1: A life-time term with good behavior is essential to give judges some
power but we should not be concerned because they have no power of the purse
or of the sword, only power to issue judgements.
 Evidence #2: A life-time term is essential so judges can honestly interpret the
Constitution and deliver unpopular decisions without their jobs being threatened.
 Evidence #3: Someone must defend the Constitution, and the legislative and
executive cannot be trusted to do so. Without its defense, there is no rule of law.
*This is one of 9 required Foundational Documents
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*FEDERALIST #78
 Perspective: Alexander Hamilton explaining the merits of the Constitution,
specifically justifying the need for an independent Judiciary.
 Claim: An independent Judiciary is necessary for the preservation of liberty
and is inherently weak.
 Evidence #1: A life-time term with good behavior is essential to give judges some
power but we should not be concerned because they have no power of the purse
or of the sword, only power to issue judgements.
 Evidence #2: A life-time term is essential so judges can honestly interpret the
Constitution and deliver unpopular decisions without their jobs being threatened.
 Evidence #3: Someone must defend the Constitution, and the legislative and
executive cannot be trusted to do so. Without its defense, there is no rule of law.
*This is one of 9 required Foundational Documents
7
MARBURY V. MADISON (1803)
Facts:
 Thomas Jefferson defeated John Adams in the 1800 presidential election. Before Jefferson took office on March 4, 1801, Adams and Congress passed
the Judiciary Act of 1801, which created new courts, added judges, and gave the president more control over appointment of judges. The Act was
essentially an attempt by Adams and his party to frustrate his successor, as he used the act to appoint 16 new circuit judges and 42 new justices of the
peace. The appointees were approved by the Senate, but they would not be valid until their commissions were delivered by the Secretary of
State. William Marbury had been appointed Justice of the Peace in the District of Columbia, but his commission was not delivered. Marbury petitioned
the Supreme Court to compel the new Secretary of State, James Madison, to deliver the documents. Marbury, joined by three other similarly situated
appointees, petitioned for a writ of mandamus compelling the delivery of the commissions.
Issue:
 Do the plaintiffs have a right to receive their commissions?
 Can they sue for their commissions in court?
 Does the Supreme Court have the authority to order the delivery of their commissions?
Decision:
 Though Marbury was entitled to it, the Court was unable to grant it because Section 13 of the Judiciary Act of 1789 conflicted with Article III Section 2 of
the U.S. Constitution and was therefore null and void.
Rationale:
 The Court found that Madison’s refusal to deliver the commission was illegal, but did not order Madison to hand over Marbury’s commission via writ of
mandamus. Instead, the Court held that the provision of the Judiciary Act of 1789 enabling Marbury to bring his claim to the Supreme Court was itself
unconstitutional, since it purported to extend the Court’s original jurisdiction beyond that which Article III, Section 2, established. Marshall expanded that
a writ of mandamus was the proper way to seek a remedy, but concluded the Court could not issue it. Marshall reasoned that the Judiciary Act of 1789
conflicted with the Constitution. Congress did not have power to modify the Constitution through regular legislation because Supremacy Clause places
the Constitution before the laws. In so holding, Marshall established the principle of judicial review, i.e., the power to declare a law unconstitutional.
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Source: "Marbury v. Madison." Oyez, www.oyez.org/cases/1789-1850/5us137. Accessed 15 Aug. 2019.
MARBURY V. MADISON PLAYERS
2nd President John Adams
3rd President Thomas Jefferson
Appointed Federal Judge
William Marbury
Sec. of State James Madison
IMPACT OF MARBURY V. MADISON
 Gives Supreme Court more power
 Court determines what the law is NOT
 What the law ought to be is the job of the…
 Legislative Branch!
Chief Justice
John Marshall
Precedents and stare decisis play an important role
in judicial decision making.
CON-5.B.1
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.
11
SUPREME COURT’S DECISIONS
 Majority
 Concurring
 Agree with majority but need to stress another point
 Dissenting
 Precedent
 A ruling that establishes legal principle
 Stare Decisis
 “Let the decision stand”
 AKA – The Doctrine of Precedent
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.
CON-5.B.2
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.
13
IDEOLOGICAL CHANGES OF THE
COURT
 Marbury v. Madison establishes Judicial Review
 John Marshall gives the Supreme Court power
 Pre-Civil War topics
 Slavery
 Strength and legitimacy of federal government
 FDR Era
 “Nine Old Men” opposing New Deal policies
 Warren Court
 Activist court of the 50’s and 60’s
 Burger Court
 “Conservative” court with liberal decisions
 Rehnquist & Roberts Courts
 Difficult to predict with “swing” voters
Controversial or unpopular court decisions can lead
to challenges to the court’s legitimacy and power
that Congress and the president can address only
through future appointments, legislation changing
the Court’s jurisdiction, or refusing to implement
decisions.
CON-5.B.3
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.
15
CHALLENGES TO COURT’S
LEGITIMACY & POWER
President
Supreme
Court
Appeals
Court
District
Court
Total
Nixon (‘69-’74)
4
45
182
231
Ford (‘74-77)
1
12
52
65
Carter (‘77-’81)
0
56
206
262
Reagan (’81-’89)
3
78
292
373
G.H.W. Bush (‘89-’93)
2
37
149
188
Clinton (‘93-’01)
2
62
306
370
G.W. Bush (‘01-’09)
2
61
261
324
Obama (‘09-’17)
2
49
268
319
Trump (‘17-’19)
2
43
99
144
 Future Appointments
 Legislation changing
the Court’s
jurisdiction
 Refusing to
implement decisions
 Source: Wolfford, David. AMSCO
AP U.S. Government and Politics.
2019, page 217.
16
REFUSING TO IMPLEMENT DECISIONS
Worcester vs. Georgia
 Facts: In September 1831, Samuel A. Worcester and others, all non-Native Americans, were indicted in the supreme court for the
county of Gwinnett in the state of Georgia for "residing within the limits of the Cherokee nation without a license" and "without having
taken the oath to support and defend the constitution and laws of the state of Georgia." They were indicted under an 1830 act of
the Georgia legislature entitled "an act to prevent the exercise of assumed and arbitrary power by all persons, under pretext of
authority from the Cherokee Indians." Among other things, Worcester argued that the state could not maintain the prosecution
because the statute violated the Constitution, treaties between the United States and the Cherokee nation, and an act of Congress
entitled "an act to regulate trade and intercourse with the Indian tribes." Worcester was convicted and sentenced to "hard labour in
the penitentiary for four years." The U.S. Supreme Court received the case on a writ of error.
 Issue: Does the state of Georgia have the authority to regulate the intercourse between citizens of its state and members of the
Cherokee Nation?
 Decision: No, The Constitution acknowledges Indian tribes as separate political entities rendering the Georgia statute void.
 Rationale: In an opinion delivered by Chief Justice John Marshall, the Court held that the Georgia act, under which Worcester was
prosecuted, violated the Constitution, treaties, and laws of the United States. Noting that the "treaties and laws of the United States
contemplate the Indian territory as completely separated from that of the states; and provide that all intercourse with them shall be
carried on exclusively by the government of the union," Chief Justice Marshall argued, "The Cherokee nation, then, is a distinct
community occupying its own territory in which the laws of Georgia can have no force. The whole intercourse between the United
States and this nation, is, by our constitution and laws, vested in the government of the United States." The Georgia act thus interfered
with the federal government's authority and was unconstitutional. Justice Henry Baldwin dissented for procedural reasons and on the
merits.
Source: "Worcester v. Georgia." Oyez, www.oyez.org/cases/1789-1850/31us515. Accessed 15 Aug. 2019.
17
Political discussion about the Supreme Court’s power
is illustrated by the ongoing debate over judicial
activism versus judicial restraint.
CON-5.B.4
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.
18
POWER OF THE SUPREME COURT
 Judicial Restraint – Limit judicial power; only strike down laws that are
obviously unconstitutional
 Judicial Activism –Judge(s) strike down a law
POWER OF THE SUPREME COURT
 Judicial Restraint – Limit judicial power; only strike down laws that are
obviously unconstitutional
 Judicial Activism –Judge(s) strike down a law
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
CON-5.C.1
Explain how other branches in the government can limit the Supreme Court’s power.
21
RESTRICTIONS ON THE SUPREME
COURT
 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
22
SUPREME COURT
 President has more influence than on lower courts
© 2011 Pearson Education, Inc. All Rights Reserved
23
CONSTITUTIONALITY OF INCOME TAX
 Pollock v. Farmer’s Loan and Trust Company
 Supreme Court declares income tax Unconstitutional
 16th Amendment
 Declares Income Tax Constitutional
THE FEDERAL BUREAUCRACY
Weaver's World by Ashley Weaver is licensed under a Creative Commons Attribution-Non Commercial 4.0 International License
THE FEDERAL BUREAUCRACY
 Can you find it in the Constitution?
 Article 1, Section 8, Clause 18
 “To make all Laws which shall be necessary and proper for carrying into Execution the
foregoing Powers, and all other Powers vested by this Constitution in the Government of
the United States, or in any Department or Officer thereof.
 Article 2, Section 3
 “… he shall take Care that the Laws be faithfully executed…”
 … And yet it is far-reaching
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.A.1
Explain how the bureaucracy carries out the responsibilities of the federal government.
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BUREAUCRATIC TASKS
 Writing and enforcing regulations
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BUREAUCRATIC TASKS
 Writing and enforcing regulations
 Issuing fines
 Testifying before Congress
 Issue networks and “iron triangles”
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IRON TRIANGLES:
AN EXAMPLE
© 2011 Pearson Education, Inc. All Rights Reserved
Political patronage, civil service, and merit system
reforms all impact the effectiveness of the
bureaucracy by promoting professionalism,
specialization, and neutrality.
PMI-2.A.2
Explain how the bureaucracy carries out the responsibilities of the federal government.
31
REFORMS FOR BUREAUCRATIC
EFFECTIVENESS
Limited Effectiveness
Advanced Effectiveness
 Political Patronage
 Civil Service
 Began in 1870
 Merit System
 Began with Pendleton Civil
Service Act of 1883
 Hatch Act
Charles Berryman, 1939
Thomas Nast [Public domain]
32
Discretionary and rule-making authority to implement policy are
given to bureaucratic agencies, including:
-Department of Homeland Security
-Department of Transportation
-Department of Veterans Affairs
-Department of Education
-Environmental Protection Agency (EPA)
-Federal Elections Commission (FEC)
-Securities and Exchange Commission (SEC)
PMI-2.B.1
Explain how the federal bureaucracy uses delegated discretionary authority for rule making and
implementation.
33
BUREAUCRATIC ORGANIZATION
 President’s Cabinet
 (Secretary of…)
 Independent Regulatory Commissions
 FCC, SEC, NLRB
 Government Corporations
 TVA, U.S. Postal Service, Amtrak
 Independent Executive Agencies
 NASA, NSF
FEDERAL CIVILIAN EMPLOYMENT
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DISCRETIONARY AUTHORITY
 Rule-making
 Implementation
Examples of Discretionary Authority in Select Departments
Homeland Security
Allowing certain exemptions for immigrants
Transportation
Determining which highway projects get special
grants
Veterans Affairs
Deciding how to administer a health program for
veterans
Education
Cancelling or lowering student debt
Environmental Protection Agency
Intervening in state environmental issues
Federal Election Commission
Audits a political campaign to ensure compliance
Securities & Exchange
Commission
Determining if financial firms should be disqualified
from raising money because of illegal conduct
Source: Wolfford, David. AMSCO AP United States Government & Politics. 2019. Page 170.
36
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.1
Explain how Congress uses its oversight power in its relationship with the executive branch.
37
CONGRESS AND THE BUREAUCRACY
 Approve the President’s
Appointments
 Hold Committee Hearings
 Alter an agency’s budget
through “power of the
purse”
April 16, 2013; FDA Commissioner Margaret A. Hamburt, M.D. being sworn in
prior to testifying before the Energy and Commerce Committee. Photo courtesy
of the United States House of Representatives, Energy and Commerce
Committee
As a means to curtail the use of presidential power,
congressional oversight serves as a check of
executive authorization and appropriation.
PMI-2.C.2
Explain how Congress uses its oversight power in its relationship with the executive branch.
39
CONGRESSIONAL OVERSIGHT
 Congress’s check on the President’s power
 Authorization
 Appropriations
40
Presidential ideology, authority, and influence
affect how executive branch agencies carry out
the goals of the administration.
PMI-2.D.1
Explain how the president ensures that executive branch agencies and departments carry out their
responsibilities in concert with the goals of the administration.
41
AGENCY IMPLEMENTATION & GOALS
OF AN ADMINISTRATION
 Impacted by
 Presidential Ideology
 Presidential Authority
42
AGENCY IMPLEMENTATION & GOALS
OF AN ADMINISTRATION
 Impacted by
 Presidential Ideology
 Presidential Authority
 Presidential Influence
43
Compliance monitoring can pose a challenge to
policy implementation.
PMI-2.D.2
Explain how the president ensures that executive branch agencies and departments carry out their
responsibilities in concert with the goals of the administration.
44
COMPLIANCE MONITORING
 Ensuring companies subject to regulation are following the law
 Often leads to inefficiency through:




Red Tape
Waste
Duplication
Unnecessary Complexity & Growth
45
Formal and informal powers of Congress, the
president, and the courts over the bureaucracy are
used to maintain its accountability.
PMI-2.E.1
Explain the extent to which governmental branches can hold the bureaucracy accountable given the
competing interests of Congress, the president, and the federal courts.
46
ACCOUNTABILITY OF BUREAUCRACY
Formal
Informal
Congress
-Create laws to be carried out
-Approve Presidential Appointments
-Power of the Purse
-Oversight Hearings
-Committee Clearance
President
-Appoint Officials
-Executive Orders
-Persuasion
-Leadership
Courts
-Overrule or Uphold Department Directives
and Agency Rulings
47
ESSENTIAL QUESTIONS
UNIT 2
 Which branch of government is the most powerful? Why?
 Are there really checks and balances when one political party controls all
three branches of government? Why or why not?
 In what ways has the evolution of government powers affected Americans
and their daily lives?
48
ENDURING UNDERSTANDINGS
UNIT 2
 CON-3: The republican ideal in the U.S. is manifested in the structure and
operation of the legislative branch.
 CON-4: The presidency has been enhanced beyond its expressed
constitutional powers.
 CON-5: The design of the judicial branch protects the Supreme Court’s
independence as a branch of government, and the emergence and use of
judicial review remains a powerful judicial practice.
 PMI-2: The federal bureaucracy implements federal policies.
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