O’Hara’s Summary and Observations, Class # 3---PAD 700, Fall 1998

General Warning to Students: This commentary should NOT be your source for test answers, homework development or other graded exercises. Your assigned readings and exercises are THE source for gathering the information and insights upon which you will be graded. The purpose of these commentaries is to reflect on lectures already delivered, and to work in relevant ideas developed by students and/or professors in the course of class discussion. In developing this commentary, Professor O’Hara is going to be free-wheeling, and at times irreverent. Though the subject matter of Professor O’Hara’s commentary usually will relate to materials from assigned readings, the commentary is designed to augment and flavor what you have already read and absorbed. This commentary IS NOT a substitute for assigned work.

Class # 3 Commentary

Legislative and Judicial Branches Interacting with the Bureaucracy---From last Week’s discussion of Federalism, we turn, at least with Question 4 whose answer you had to submit at this class, to a discussion of Separation of Powers. Separation of Powers is not about state governments and the federal government. "Federalism" deals with those relationships. Separation of powers IS about the relationship between the executive branch of government, the legislative branch of government, and the judicial branch of government.

If you remember last week’s notes, I talked about the states delegating to the federal government certain functions when the Constitution was written in 1787. What the states also gave to the federal government was its STRUCTURE. Before a federal government with "separated powers" was created, most states already had a three-branch structure. Remember that, before 1787, the little central governing that did occur took place mainly through a Congress, whose head was called "president." But neither the Congress nor its president had sufficient power to make the states do much of anything. When the constitution of 1787 created a more powerful Federal Government (with an Executive/President Branch, a Legislative/Congressional branch, and a Judicial branch), the model used was from state government structures that exist to this day,

The Point of the paragraph above is this: The Separation of Powers idea (with its closely associated "checks and balances" idea) applies to federal AND state governments in the United States. Because of the federalism idea—namely that each state, as well as the federal government, has sovereignty over its governing mechanisms---state governments are not CLONES of the federal model, or vice versa. However, the basic executive/ legislative/judicial model is shared. That is why I asked the question "Compare the power of the Presidency today with the powers exercised by most governors." What is interesting to a student of public administration is that, within the basic model, the President of the United States, who is the SINGLE ELECTED HEAD of the Federal bureaucracy, has more power that most state governors, who are usually ONE OF SEVERAL ELECTED HEADS of the state bureaucracy. (Think of New York where Governor Pataki has as his administration’s lawyer an elected Attorney General, Dennis Vacco, and has as his administration’s accountant an elected Comptroller, Carl McCall, who isn’t even from Governor Pataki’s political party.) So Pataki at times has to reach an accommodation about certain issues with powerful elected individuals in his own branch of government before he even deals with New York State’s legislative and judicial branches. President Clinton, on the other hand, is THE BOSS of the federal branch--the only one elected, the Commander-in-Chief.

The relative power of the branches of government is relevant to questions two and three from Week Three.

Question Two asks about three ways of organizing city government. Two of the local government organizing models overload one branch with power—the little-used "commission" form gives legislative and executive power to a set of elected administrators, the more prevalent "council-manager" form gives most legislative and executive power to an elected legislature (Council). The Council hires (and can fire) a city manager to do the executive part.

We get back to the basic three-branch model when we talk about Mayor/Council forms of local government. In a "strong" Mayor local government structure, the Mayor prepares the budget for submission to council, can hire and fire department administrators, and may have other powers, such as a veto over legislative acts. New York City has a strong mayor STRUCTURE, which presently happens to be occupied by a MUSCULAR PERSONALITY, Rudolph Guiliani. Los Angeles has a weak mayor structure—the LA Mayor can not, for instance, hire or fire the police chief. The LA Mayor, Riordan, may be a forceful guy but the local government STRUCTURE he operates in only allows him to take charge so much. In contrast, David Dinkins had a local government structure in New York that would have allowed him to dominate, had it not been for his low-key personality.

Question 3, based on the article "The States Lead in Rights Protection," is also relevant to the RELATIVE POWER wielded by the executive, legislative and judicial branches. Under Federal law, taping another without their knowledge is OK. So, Linda Tripp’s secretly-made tapes of Monica Lewinsky stand at the heart of Ken Starr’s federal case against Bill Clinton. Special Prosecutor Starr, an executive branch operative (who by the way CANNOT be fired by the President) has nothing to fear from the federal courts (the Judiciary) over Linda Tripp’s tapes. Such taping is OK under federal law. On the other hand, if Starr was a Maryland prosecutor, the Maryland Courts would most likely throw the case out and admonish Starr for conspiring with Tripp to make some of the tapes. Taping someone without their knowledge is a NO-NO under Maryland law. Note that this story is not just about laws, but the relative latitude the executive branch enjoy in the federal government as opposed to the latitude the executive branch enjoys in the state government of Maryland.

Now, finally, to Question 4, the one you had to hand in. I’m not going to answer it here. You did it on paper. We did it in class. I do not have to repeat here the list of legislative/judicial/executive interactions that you developed individually and that we then put on the board in class. That’s what your homework and class notes are for.

I will make a general comment here about "checks and balances." The men who wrote the Constitution of the United States were paranoid, and not only about a too powerful federal government (see my notes from Class 2). The Constitution’s authors were paranoid about Presidential Dictatorships, Congressional Tyrannies, and (to somewhat less of a degree) All-Powerful Supreme Courts. So the Constitution not only set about dividing powers ("Separation of Powers), but overlapping them. For instance, the President signs laws the Congress passes. If he doesn’t, a veto occurs, and Congress has to re-pass the law, this time by two-thirds, if they want to prevail. The President gets to pick the top officers of his executive departments, but he is allowed to hire them only if the Senate goes along. The President nominates Supreme Court justices, but the Senate has to confirm them. The list goes on and on, and is the basis for the extensive list of legislative and judicial checks on administrative agencies (the ones that work for Presidents, Governors, etc.) that we talked about in class.

Bottom Line: The Federal government was deliberately created to be a gummy, slow-moving maker and implementer of policy. If the Founders had been designing a car instead of a Constitution, they would have put in three steering wheels, three accelerators, three brake pedals AND a governor on the engine so nobody, either individually or together, could drive more than 5 miles an hour.

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