16 2.7 – CONSTITUTIONAL ACTORS

CONSTITUTIONAL ACTORS

The Constitution created a federal government that could address the policy preferences of different political groups within the new republic by allowing regional populations to be represented in the House, state-wide populations that could be best served in the Senate, and the national population that would be represented by the president. The new federal government’s policy making powers were separated into a legislative branch that would “make the laws,” an executive branch that would “enforce the laws,” and a judiciary that would (eventually) give itself the power to “interpret the laws.” These three branches of the new federal government, created by Articles One, Two, and Three, of the Constitution, respectively, represent the constitutional actors in the policy process. Most of the enumerated powers given to these three branches are simultaneously separate from, and connected to, the enumerated powers of the other branches. This structure created a government that sacrificed legislative efficiency in exchange for protection from the growth of tyrannical power. The next few sections will discuss the three federal government branches’ policy making responsibilities. 

2.7.1.  Congress

Article One of the Constitution is the longest and most detailed portion of the entire document. The framers of the new republic intended for Congress to be the epicenter of policy making and gave the legislative branch more policy making powers than the executive and judicial branches combined. Congress would serve as a conduit for both translating and filtering public desires into public policy decisions (Whitman-Cobb, 2020). The long history of popularly–elected legislatures, beholden to local populations, was a significant catalyst for the framers’ erring on the side of legislative power in the new federal government. The framers of the Constitution made it clear that the legislative branch was to be the first among the three equal branches. (Mann and Ornstein, 2006).

In addition to representation of constituents within specific geographic districts, Congress is responsible for passing legislation, appropriating all revenue spent by the federal government, and providing oversight of the actions of the executive branch. Creating and passing laws is one of the most important and recognizable policy making powers held by Congress. While the lawmaking process is too complex to fit into a simple summary, it is fair to say that the two chambers of the legislative branch share similar characteristics while also displaying unique institutional personalities. One of the most common features of both chambers of Congress can be found in the committee system used to coordinate the passage of legislative bills. Both chambers use specialized standing committees that focus on specific policy areas to discuss legislation before sending it to the full plenary,  that is, all members of the particular group

Another policy making power that Congress wields is the power of the purse, which describes congressional power to appropriate all revenue spent by the federal government. Appropriation power allows Congress to define the amount of money to be spent by the executive and judicial branches of government while also influencing how legislative policies are implemented. Congressional power over the appropriation of all public funds is one of the most significant checks the legislative branch enjoys over the other two branches of the federal government (Stith, 1988).

The Constitution requires all revenue-raising bills—those bills that include taxes—to originate in the House of Representatives. In 1974, Congress passed the Budget and Impoundment Control Act allowing the legislature to propose alternatives to the president’s budget. Congress created the Congressional Budget Office (CBO) to provide itself with the same level of fiscal expertise found in the executive branch’s Office of Management and Budget (which puts together the president’s budget proposal for congressional approval). The CBO is a nonpartisan agency that allows Congress to accurately assess expected revenues and expenditures for the federal government. The CBO also provides projections for the likely economic effects of different spending programs and information on the costs of proposed policies (Greenstein, 1995).  Finally, the Constitution requires congressional approval for the creation of all executive branch departments and agencies, also known as constituent policy. Congress has the power to oversee how the executive branch is implementing public policy. Congress uses the appropriations process to annually explore what bureaucratic agencies are doing, inform them of what Congress expects them to do, and funds those activities favorable to Congress, while withholding funding from policy areas not popular to a majority of legislators (Wasserman, 2015). 

2.7.2.  The President

Article Two of the Constitution enumerated far fewer policy making powers and responsibilities to the American president than Congress received in Article One. Fearing too much power in too few hands, the framers saw the executive branch’s potential to become tyrannical. However, Article Two contains several pieces of elastic language that have afforded presidents the opportunity to expand their influence over a number of policies when needed. Wielding “the executive power” and taking care that the laws be “faithfully executed” are two of the more prominent avenues used by American presidents to extend their constitutional influence over public policy. Presidents’ control over the federal bureaucracy gives them significant influence over the implementation stage of the policy process. As we shall soon see, the president’s constitutional role as the nation’s chief diplomat provides them with a significant amount of influence over foreign policy making decisions.

The Constitution vested “executive power” into the president. The ambiguity of this clause prevents it from being precisely defined in all circumstances. Several scholars have suggested that the American president has access to more than the specific enumerated powers identified by Article Two and can legitimately exercise unspecified executive power (Milkis and Nelson, 2016). Originally, executive power was viewed as a means to carry out or execute the laws passed by Congress. Today, however, the president controls a bureaucracy spending almost $5 trillion a year—2020 estimates of the Trump administration’s budget proposal—and employing almost 3 million public servants.Presidents have significant power in the policy making process through their control over federal bureaucratic departments

Executive orders are signed and published directives from the president that manage the operations of the federal government. Through executive orders, presidents are able to establish guidelines for federal agencies that possess the force of law. Executive orders do not require congressional approval and are often challenged in court; however, they remain a powerful tool for presidents who wish to utilize more direct policy making powers.     

The Constitution also gives the president broad powers in the area of foreign policy making. The president is constitutionally responsible for receiving foreign ambassadors and public ministers. Having the president serve as the exclusive representative of the U.S. government encourages consistent foreign policy that is preferable to having all of the voices of Congress pushing different objectives to the international community. The president also simultaneously serves as theU.S. head of state and head of government. This provides additional consistency in the formulation of national policy decisions (Vile, 2010).

The president shares foreign policy decision–making power with the Senate when dealing with the ratification of international treaties. While the Constitution gives the president the power to conduct foreign relations with other governments and negotiate treaties, a two-thirds supermajority vote in the Senate is required for ratification of treaties. When presidents do not enjoy this supermajority support in the Senate, they will often utilize executive agreements that have the same force of law without requiring Senate approval. However, while executive agreements can be created by current presidents without Senate approval, they can just as easily be unilaterally withdrawn by future administrations (Vile 2010).

The president’s policy-making influence over legislation has changed dramatically throughout the history of the republic. The president has constitutional power to recommend legislation to Congress, provide information related to the state of the union, and convene Congress in special sessions. While the annual state of the union address has become a significant tool for the president to influence public policy by appealing to the voting public, convening special sessions of Congress has become less valuable as Congress has become more of a year-round job.

The Budget and Accounting Act of 1921 gave the president formal power to submit budget estimates to Congress. This dramatically increased presidential influence over the budgetary process (O’Brien, 2017). The Office of Management and Budget (OMB) provides the chief executive significant influence over the final budget by providing estimates of each executive department’s spending  needs. While Congress has the final say over appropriations, it is often difficult for the legislative branch to claim to know more about what the executive departments need than does the executive branch.

Finally, regulatory agencies within the executive branch exercise significant influence over public policy through their rule–making power and by issuing new regulations affecting old legislation. While this bureaucratic power was constrained by Congress’ Administrative Procedures Act in 1947, the rule–making power of executive branch agencies gives the president extraordinary control over the implementation of public policies (O’Brien, 2017). Having discussed the two elected branches’ impact on the policy process, we will now explore the un- elected judiciary’s influence on public policy decisions. 

2.7.3.  The Courts

Article Three created what the framers considered to be the least dangerous branch of the new federal government. The courts have no explicit policy making powers. The court must rely on the other branches of government, at the state and federal level, to enforce its decisions. In general, the judiciary impacts federal and state policies by issuing opinions on the constitutionality of a variety of government policies (Calvi and Coleman, 2004).

The most significant power enjoyed by the federal court—especially in terms of public policy—was not specifically enumerated in Article Three: the power of judicial review. This gives the federal court the power to determine if congressional legislation and presidential actions are constitutional. The court’s landmark opinion in Marbury v. Madison (1803) initiated the court’s power of judicial review. Having the power to determine what is or is not constitutional provides the federal court with significant influence over public policy. The other branches of the federal government are expected to honor the rulings of the federal court. While there are select examples of the other branches of government ignoring judicial opinions, the majority of judicial opinions represent a significant judicial check on the elected branches of the federal government (Van Geel, 2005).

Judicial review also gives the federal court policy–making power over state government actions. While exercising the power of judicial review, the federal court is significantly involved in creating public policy, defining the relationship between the branches of the national government, identifying the constitutional powers of state and federal agencies, shaping the liberties of individuals, and bringing social issues to the attention of government and the general population (Wasserman, 2015).

The court’s impact on public policy has evolved over the years. In the first century of its existence, the federal court primarily dealt with the relationship between state and national government powers and the issue of slavery. Post-WWII, the court has focused its attention on the protection of civil liberties for women and minority groups (Vile, 2010). The amount of influence the court exerts over public policy is determined by the degree of activism or restraint employed by the court’s justices. Judicial restraint describes a belief that the court should not push its views on the other branches of government unless an obvious constitutional violation is involved. Judicial restraint calls for less direct judicial influence on public policy. Judicial activism views the court as an active member in the policy-making process.

Advocates of judicial activism believe the court should use its authority to solve policy problems that have been ignored by the elected branches of government (Wasserman, 2015).