AP U.S. Government and Politics · Lesson 3

The courts and the bureaucracy

Know Know it

Article III creates one Supreme Court and lets Congress create lower federal courts. The president nominates federal judges, the Senate confirms them, and they serve during good behavior, which in practice means for life. Life tenure is meant to keep judges independent of elections.

In Federalist No. 78, Alexander Hamilton argued that the courts would be the weakest branch, because they control neither the military nor the budget and can only issue judgments. Judicial review, the power to strike down laws that conflict with the Constitution, was set out in Marbury v. Madison (1803). Courts also follow precedent under stare decisis, though the Supreme Court sometimes overturns earlier rulings.

Judges differ in approach. Judicial restraint defers to elected branches and precedent. Judicial activism is a label for judges more willing to overturn laws or precedent. Other branches check the Court: the Senate confirms justices, Congress can pass a new law after the Court reads a statute, and Congress and the states can amend the Constitution. Congress also sets the number of justices and much of the courts' appellate jurisdiction, and the Court depends on the executive branch to enforce its rulings.

The bureaucracy is the set of departments, agencies and commissions that carry out laws. Congress often writes broad laws and gives agencies discretionary authority and rule-making authority to fill in the details. Since the Pendleton Act of 1883, most federal jobs are filled by a merit system instead of party patronage. An iron triangle links a congressional committee, an agency and an interest group that share a policy goal.

Agencies are held accountable from several sides. Congress uses oversight hearings, investigations and the power of the purse. The president appoints and can remove top officials, issues executive orders and proposes budgets. Courts can set aside rules that go beyond the authority Congress granted.

Trap The Court waits for a case

Judicial review is not a veto the Court can use whenever it likes. Federal courts rule only on real cases brought to them, so a law stands until someone with a stake challenges it in court.

Worked example Easy

Which Supreme Court case set out the power of federal courts to strike down laws that conflict with the Constitution?

  1. McCulloch v. Maryland
  2. Baker v. Carr
  3. Marbury v. MadisonAnswer
  4. Shaw v. Reno

How to solve it

  1. Match each case to its main holding.
  2. McCulloch is about implied powers; Baker and Shaw are about districts.
  3. Marbury v. Madison is the case that set out judicial review.

Why each choice is right or wrong

  • A. Incorrect. McCulloch v. Maryland upheld implied powers and a national bank, not the power of judicial review.
  • B. Incorrect. Baker v. Carr let federal courts hear challenges to unequal districts, long after judicial review began.
  • C. Correct. In Marbury v. Madison (1803) the Court declared part of a federal law unconstitutional, setting out judicial review.
  • D. Incorrect. Shaw v. Reno dealt with districts drawn mainly by race, not with the origin of judicial review.

Explain Explain it

Task verbs: explain, describe

To explain a check on the Court or on an agency, say who acts, what tool they use, and what it changes in the scenario. A ruling that reads a statute can be undone by a new statute. A ruling that reads the Constitution needs an amendment or a later Court.

Worked example Medium

A law tells a federal agency to keep drinking water safe. The agency then sets an exact limit for lead in tap water. Which idea does this show?

  1. Judicial review of an act of Congress
  2. Congressional oversight of an agency
  3. Rule-making authority given to an agencyAnswer
  4. Executive privilege claimed by a president

How to solve it

  1. Congress set only a broad goal: safe water.
  2. The agency filled in the detail with a specific limit.
  3. Writing detailed regulations under a broad law is rule-making authority.

Why each choice is right or wrong

  • A. Incorrect. Judicial review is a court striking down a law, but no court acts in this scenario.
  • B. Incorrect. Congressional oversight is Congress checking an agency, while here the agency is the one acting.
  • C. Correct. Congress passed a broad goal, and the agency used power given by Congress to write the detailed rule.
  • D. Incorrect. Executive privilege is a president keeping communications private, which has nothing to do with this rule.

Explain Your turn

The Supreme Court rules that a federal law violates the Constitution. Explain how Congress and the states could overturn the effect of that ruling, and why simply passing the same law again would not work.

Write it, then compare. Nothing you type here is saved or graded.

Compare with a model answer

A full answer does this

  • Names a constitutional amendment, proposed by Congress and ratified by the states
  • Says the same law would be struck down again because the ruling rests on the Constitution

Model answer

Congress could propose a constitutional amendment by a two-thirds vote in each chamber, and three-fourths of the states could ratify it, changing the Constitution itself. Passing the same law again would not work, because the Court based its ruling on the Constitution, and an ordinary law cannot override it, so the Court would strike the new law down too.

Apply Apply it

Practice these topics. AP Practice questions on exactly what this lesson covers, with an explanation for every answer.

Practice these topics