United States

   

Quality of Democracy

#18
Key Findings
Despite the administration’s newly routine flouting of political norms, the United States falls into the upper-middle ranks (rank 18) with regard to democracy quality. Its score on this measure has declined by 1.0 point relative to 2014.

The media has become a highly polarized, contested environment, with conservative broadcasters adopting Trump’s often misleading rhetoric, and other outlets castigated as “fake news.” Trump has personally threatened news organizations in various ways. Loose campaign-finance laws lead to vast, often unaccountable private spending on elections.

A majority of states have implemented measures making it harder for some groups to register and vote. The Trump administration has rolled back anti-discrimination rules. Numerous policies have been implemented and regulations canceled through the use of unilateral executive actions. The prospect of judicial appeals will undermine legal certainty for years.

The Republican Senate’s refusal to act on Obama’s Supreme Court nomination, and subsequent confirmation of Trump’s, highlighted the newly partisan character of the federal judiciary. However, courts continue to act independently in blocking some administration policies. The new administration has shown a brazen and unprecedented disregard of conflict-of-interest norms.

Electoral Processes

#19

How fair are procedures for registering candidates and parties?

10
 9

Legal regulations provide for a fair registration procedure for all elections; candidates and parties are not discriminated against.
 8
 7
 6


A few restrictions on election procedures discriminate against a small number of candidates and parties.
 5
 4
 3


Some unreasonable restrictions on election procedures exist that discriminate against many candidates and parties.
 2
 1

Discriminating registration procedures for elections are widespread and prevent a large number of potential candidates or parties from participating.
Candidacy Procedures
10
Procedures for registering parties and candidates are fair and nondiscriminatory. State governments determine the requirements for ballot access, so the details vary across states. All states, however, require a party or candidate to collect signatures on a petition and to file the petition by a specified deadline. Parties and candidates who meet the requirements are included on the ballots. In addition to the dominant Democratic and Republican parties, several minor parties or independent candidates are often included. In some cases, the ballot-access requirements may be a burden for smaller parties or independent candidates. But the single-member-district, plurality-election system precludes victory by such participants anyway. In general, ballot access has not been controversial, and no major problems regarding ballot access have been reported in recent elections. In the 2016 presidential election, a Green party candidate who received about 1% of the popular vote was on the ballot in regions accounting for 480 out of the total available 538 electoral votes. Libertarian party candidate Gary Johnson was on the ballot in all 50 states.

To what extent do candidates and parties have fair access to the media and other means of communication?

10
 9

All candidates and parties have equal opportunities of access to the media and other means of communication. All major media outlets provide a fair and balanced coverage of the range of different political positions.
 8
 7
 6


Candidates and parties have largely equal opportunities of access to the media and other means of communication. The major media outlets provide a fair and balanced coverage of different political positions.
 5
 4
 3


Candidates and parties often do not have equal opportunities of access to the media and other means of communication. While the major media outlets represent a partisan political bias, the media system as a whole provides fair coverage of different political positions.
 2
 1

Candidates and parties lack equal opportunities of access to the media and other means of communications. The major media outlets are biased in favor of certain political groups or views and discriminate against others.
Media Access
7
In a formal and legal sense, media access is fair, although the U.S. media exhibit some significant biases. There are only modest publicly funded media: the Public Broadcasting System (PBS, for television), National Public Radio (NPR) and C-SPAN. Most media organizations are privately owned, for-profit enterprises, independent of the government and political parties.

Media content reflects several biases. In election campaigns, media coverage of the major candidates and parties generally reflects the strength and popularity of the competing campaigns, with more favorable coverage going to the leading candidate, regardless of party.

Some media, such as the MSNBC cable news network, have a strong liberal and Democratic party bias. Others, most importantly Fox News Channel, have an fervent conservative and/or Republican bias. During the 2016 campaign and the first year of Trump’s presidency, Fox News has broadly adopted Trump’s often false and misleading rhetorical positions – including his claim that outlets including CNN, the New York Times, and the Washington Post are providers of “fake news.” Based on neutral fact-checking organizations, Trump is by far the most prolific liar in modern U.S. political history, but Fox News and some far-right websites regularly repeat his claims and rarely question them. Responsible conservative commentators have noted the abandonment of journalistic standards in a large segment of right-wing news media.

Importantly, in election campaigns, media messages are often dominated by paid advertising. Such advertising can reflect massive imbalances in the fundraising capabilities of the opposing candidates or parties, with a modest, inconsistent advantage for the Republicans. In an unusual feature, Donald Trump had a strong advantage in free air-time on news media because audiences were interested in his frequently extreme rhetoric at campaign rallies.

During the 2016 campaign, for the first time, citizens reported getting their information through social media, especially Facebook and Twitter, as often as from traditional news sources. Social media proved highly amenable to the spreading of false information. In particular, Facebook estimates that more than 125 million individuals viewed content that was created by Russian-sponsored accounts seeking to promote Trump’s election, generally by promoting false stories. (It is possible, but far from clear, that this and other Russian interference influenced the outcome of the election.)

The unprecedented biases and distortions in right-wing media and the vulnerability of social media to false news indicate that citizens’ access to reliable information has become problematic.

Citations:
https://www.brookings.edu/research/how-to-combat-fake-news-and-disinformation/

To what extent do all citizens have the opportunity to exercise their right of participation in national elections?

10
 9

All adult citizens can participate in national elections. All eligible voters are registered if they wish to be. There are no discriminations observable in the exercise of the right to vote. There are no disincentives to voting.
 8
 7
 6


The procedures for the registration of voters and voting are for the most part effective, impartial and nondiscriminatory. Citizens can appeal to courts if they feel being discriminated. Disincentives to voting generally do not constitute genuine obstacles.
 5
 4
 3


While the procedures for the registration of voters and voting are de jure non-discriminatory, isolated cases of discrimination occur in practice. For some citizens, disincentives to voting constitute significant obstacles.
 2
 1

The procedures for the registration of voters or voting have systemic discriminatory effects. De facto, a substantial number of adult citizens are excluded from national elections.
Voting and Registration Rights
6
Voter registration is subject to regulation by the federal government, but it is administered by the states. Most discriminatory practices have been eliminated through federal regulation and enforcement over the last 50 years. Convicted felons are ineligible to vote in many states; non-citizen residents are not permitted to vote, although permanent residents are encouraged to become citizens.

Between 2011 and 2016, Republican-controlled legislatures in over half of the states have enacted or considered measures that have made it harder for some groups to vote – mostly by upgrading the identification requirements for voter registration or by reducing opportunities for mail-in and early voting. Federal courts have struck down or delayed implementation of several state measures, but also have declined to delay others. In 2013, the U.S. Supreme Court struck down a 2006 congressional 25-year extension of the section of the Voting Rights Act that required specified states or counties with a history of discrimination to pre-clear changes in voting laws with the U.S. Justice Department. The Justice Department can still challenge discriminatory practices in court, but cannot prevent their initial adoption. During 2015 and 2016, registration procedures have been highly controversial, with bills to restrict registration or (less often) to facilitate it under consideration in many states. Some Republican-controlled states reduced the number of polling places, resulting in several-hour waits in minority and low-income areas. Long lines clearly reduced the Latino and African American vote in certain areas in the 2016 elections. The Trump Justice Department has not challenged such voting restrictions.

To what extent is private and public party financing and electoral campaign financing transparent, effectively monitored and in case of infringement of rules subject to proportionate and dissuasive sanction?

10
 9

The state enforces that donations to political parties are made public and provides for independent monitoring to that respect. Effective measures to prevent evasion are effectively in place and infringements subject to effective, proportionate and dissuasive sanctions.
 8
 7
 6


The state enforces that donations to political parties are made public and provides for independent monitoring. Although infringements are subject to proportionate sanctions, some, although few, loopholes and options for circumvention still exist.
 5
 4
 3


The state provides that donations to political parties shall be published. Party financing is subject to some degree of independent monitoring but monitoring either proves regularly ineffective or proportionate sanctions in case of infringement do not follow.
 2
 1

The rules for party and campaign financing do not effectively enforce the obligation to make the donations public. Party and campaign financing is neither monitored independently nor, in case of infringements, subject to proportionate sanctions.
Party Financing
6
The U.S. system of political finance has evolved to become only partly transparent. At the federal level, campaign-finance law is enacted by Congress and enforced by the Federal Election Commission (FEC). The Federal Election Campaign Act of 1974 and the Bipartisan Campaign Reform Act of 2002 (McCain-Feingold Act) established a strictly regulated and transparent system to monitor contributions to candidate campaigns and political parties. However, so-called independent expenditures (spent on behalf of a candidate, e.g., for advertising, without coordination with the candidate) have been subject to fewer, and steadily diminishing, constraints. More significantly, in the 2010 Supreme Court ruling Citizens United v. Federal Election Commission, the court rejected any limits on private advertising in election campaigns.

As a result, recent elections have seen the rise of so-called Super PACs – political action committees able both to make unlimited contributions on behalf of parties or candidates, and to receive unlimited contributions from individuals, corporations, unions or other entities. Neither the contributor nor the candidate or party can be held accountable. In the 2014 McCutcheon case, the Supreme Court went further, striking down the limit (then set at $123,200) on aggregate contributions by an individual directly to political parties or candidates (as opposed to independent groups).

Candidates of both parties, though especially Republicans, have relied increasingly on independent expenditures originating from extremely wealthy individuals or large businesses. In some cases, the donations are laundered through intermediary organizations to obscure their source.

Do citizens have the opportunity to take binding political decisions when they want to do so?

10
 9

Citizens have the effective opportunity to actively propose and take binding decisions on issues of importance to them through popular initiatives and referendums. The set of eligible issues is extensive, and includes national, regional, and local issues.
 8
 7
 6


Citizens have the effective opportunity to take binding decisions on issues of importance to them through either popular initiatives or referendums. The set of eligible issues covers at least two levels of government.
 5
 4
 3


Citizens have the effective opportunity to vote on issues of importance to them through a legally binding measure. The set of eligible issues is limited to one level of government.
 2
 1

Citizens have no effective opportunity to vote on issues of importance to them through a legally binding measure.
Popular Decision-Making
8
Popular decision-making mechanisms do not exist in the United States at the federal level, but are strong for some state and local governments. The federal government does not have any provision for citizen initiatives or referendums. Twenty-four of the 50 state governments and many local ones provide rules for some forms of direct democracy. Ballot measures provide citizens the opportunity to discuss and vote on policy issues at the local level and state level. In around 30 states, petitions can force special elections in which voters are asked to remove or retain a slate of local elected officials. In several states, a recall with sufficient signatures can launch a by-election for any reason. Some states or cities have adopted measures granting or restricting rights for the LGBTQ community, legalizing marijuana, imposing or removing limits on taxes, and other provisions.

Access to Information

#12

To what extent are the media independent from government?

10
 9

Public and private media are independent from government influence; their independence is institutionally protected and fully respected by the incumbent government.
 8
 7
 6


The incumbent government largely respects the independence of media. However, there are occasional attempts to exert influence.
 5
 4
 3


The incumbent government seeks to ensure its political objectives indirectly by influencing the personnel policies, organizational framework or financial resources of public media, and/or the licensing regime/ market access for private media.
 2
 1

Major media outlets are frequently influenced by the incumbent government promoting its partisan political objectives. To ensure pro-government media reporting, governmental actors exert direct political pressure and violate existing rules of media regulation or change them to benefit their interests.
Media Freedom
7
The United States has long upheld an unusually rigorous version of media freedom, based on the language of the First Amendment to the U.S. Constitution. In general, government interference in the media sector has been nearly nonexistent. News organizations are rarely subject to damage suits, even for clearly false accusations against government officials. Because judicial precedents virtually prohibit “prior restraint,” they are rarely enjoined from publishing information – even if a source illegally provided it. The United States does not have a national “shield law” protecting the confidentiality of journalists’ sources (and barring punishment for a journalist’s refusal to reveal them), but most states offer such protection.

Recent developments have placed journalists under new pressure. Conflicts have occurred between press freedom and national-security and counterterrorism efforts – including government surveillance of journalists and attempts to compel reporters to reveal the sources of leaked information.

Both in his presidential campaign and as president, Trump has threatened news organizations in various ways for critical coverage, which he dismisses as “fake news.” He has demanded (unsuccessfully) that critical reporters be fired, threatened antitrust action against the owner of the Washington Post (though no such action has been taken) and suggested that a major television network might be denied its broadcast license (even though over-the-air TV stations, not networks, have licenses). He has also excluded reporters he regarded as unfriendly from campaign events or White House press briefings. By late 2017, there have been no apparent cases of substantial punishment or censorship of news organizations, but the president’s lack of deference for press freedom has been widely regarded as dangerous.

To what extent are the media characterized by an ownership structure that ensures a pluralism of opinions?

10
 9

Diversified ownership structures characterize both the electronic and print media market, providing a well-balanced pluralism of opinions. Effective anti-monopoly policies and impartial, open public media guarantee a pluralism of opinions.
 8
 7
 6


Diversified ownership structures prevail in the electronic and print media market. Public media compensate for deficiencies or biases in private media reporting by representing a wider range of opinions.
 5
 4
 3


Oligopolistic ownership structures characterize either the electronic or the print media market. Important opinions are represented but there are no or only weak institutional guarantees against the predominance of certain opinions.
 2
 1

Oligopolistic ownership structures characterize both the electronic and the print media market. Few companies dominate the media, most programs are biased, and there is evidence that certain opinions are not published or are marginalized.
Media Pluralism
8
The media market is characterized by pluralism in the electronic and broadcast sectors. Publicly funded television and radio networks provide high-quality programming but have modest resources for news gathering. There are strong television-news networks on both the left (MSNBC) and the right (Fox News) of the political spectrum. Within the private media, an unprecedented consolidation has occurred in recent years. The number of independent television-station owners has dropped by 40% since 1995. During the same period, the number of commercial radio stations has dropped by 36%. Just five big media corporations control nearly 75% of primetime viewing. In addition, there has been a steady decline of competition in the print media, especially with regard to local newspapers; few cities today have more than one newspaper.

The main challenge with respect to pluralism is the decline in financial resources available for actual news gathering and reporting, as opposed to commentary. As an unfortunate consequence, an increasing proportion of news coverage consists of statements made directly by politicians or public officials, often without filtering or analysis by reporters. The rapidly increasing use of mobile phones as a principal means of accessing news reduces the depth of the reporting people receive.

To what extent can citizens obtain official information?

10
 9

Legal regulations guarantee free and easy access to official information, contain few, reasonable restrictions, and there are effective mechanisms of appeal and oversight enabling citizens to access information.
 8
 7
 6


Access to official information is regulated by law. Most restrictions are justified, but access is sometimes complicated by bureaucratic procedures. Existing appeal and oversight mechanisms permit citizens to enforce their right of access.
 5
 4
 3


Access to official information is partially regulated by law, but complicated by bureaucratic procedures and some poorly justified restrictions. Existing appeal and oversight mechanisms are often ineffective.
 2
 1

Access to official information is not regulated by law; there are many restrictions of access, bureaucratic procedures and no or ineffective mechanisms of enforcement.
Access to Government Information
7
The Freedom of Information Act (FOIA) allows citizens a high degree of access to documents and files held by federal agencies. Various categories of information are exempt, such as information related to national defense, personnel rules and practices and ongoing criminal investigations. Administrators have considerable discretion in permitting access, as citizens and researchers have difficulty knowing when relevant information has been withheld.

The Obama White House reported that it had reduced FOIA request backlogs and denied fewer requests than the preceding Republican administration. Moreover, the Obama administration generally responded to requests from Congress for internal documents, making fewer claims of “executive privilege.” Yet, in 2013 and 2014, the Obama administration denied or delayed a record number of such requests, in many cases on national-security grounds. In 2015, Congress debated a Freedom of Information Oversight bill that would tighten FOIA procedures and standards.

Early evidence of the Trump administration’s approach to providing information is alarming. Both as candidate and president, Trump has refused to disclose his income tax filings – a departure from the nearly consistent practice of the last half-century. His agencies refused to provide information on past lobbying activities to the Office of Government Ethics, which was legally responsible for examining the information to guard against conflicts of interest. Trump attacks the press almost daily as corrupt and biased. At the end of the study period, it is too early to assess the administration’s response to FOIA requests, but all evidence points to a drastic decline in good-faith compliance.

Citations:
https://www.newyorker.com/news/ryan-lizza/how-trump-broke-the-office-of-government-ethics

Civil Rights and Political Liberties

#16

To what extent does the state respect and protect civil rights and how effectively are citizens protected by courts against infringements of their rights?

10
 9

All state institutions respect and effectively protect civil rights. Citizens are effectively protected by courts against infringements of their rights. Infringements present an extreme exception.
 8
 7
 6


The state respects and protects rights, with few infringements. Courts provide protection.
 5
 4
 3


Despite formal protection, frequent infringements of civil rights occur and court protection often proves ineffective.
 2
 1

State institutions respect civil rights only formally, and civil rights are frequently violated. Court protection is not effective.
Civil Rights
6
The emphasis on protections from intrusion by the state has been compromised significantly as a result of the anti-terrorism measures following the attacks of 9/11. The Patriot Act, widely reviled by civil-liberties advocates, has taken a more balanced approach than is generally recognized, although some surveillance and investigative procedures have opened the way for abuse. The more significant compromises of privacy protections resulted from actions of the Bush administration, notably the ordering of widespread wiretapping and internet surveillance by the National Security Agency, which was entirely without statutory authority. The Obama administration did not produce a sweeping change to these actions, however. Congress also authorized parts of the National Security Agency’s (NSA) wiretapping program, at least as it pertains to foreign suspects.


From 2014 to the present, African-American activists (the Black Lives Matter movement) have charged urban police departments of reckless, sometimes fatal use of force against black citizens. Despite some scandalous episodes captured in video recordings, according to a controversial study by Harvard economist Roland Fryer, empirical evidence has not shown a general pattern of racial bias in police use of lethal violence (shootings). Critics have argued that police training overemphasizes avoidance of risk to the officer, resulting in overly quick violent responses. In 2015, police review boards (for investigating citizen complaints of police abuse) were strengthened in some cities. In addition, a bipartisan group in Congress made progress promoting a sentencing-reform bill that would reduce excessive sentences for nonviolent offenses.

Trump has rejected complaints about excessive use of force by police (endorsing the counter-slogan Blue Lives Matter) and withdrawn support for legislative efforts at sentencing reform.

President Trump’s proposed budget assumes a major reduction of staff in the civil rights division of the Justice Department, the section charged with enforcing laws against discrimination and protecting the right to vote. Since taking office, Attorney General Jeff Sessions has rescinded Obama-era guidance on combating discrimination against transgender students and announced his intention to end the civil rights division’s aggressive oversight of police departments, even seeking to rescind a court-monitoring agreement overseeing police in Baltimore. The budget proposal also makes no mention at all of fighting discrimination against people with disabilities, a prominent change from the Obama-era 2016 request, which described it as a major priority.

Citations:
http://www.nber.org/papers/w22399
https://scholar.harvard.edu/jfeldman/blog/roland-fryer-wrong-there-racial-bias-shootings-police

To what extent does the state concede and protect political liberties?

10
 9

All state institutions concede and effectively protect political liberties.
 8
 7
 6


All state institutions for the most part concede and protect political liberties. There are only few infringements.
 5
 4
 3


State institutions concede political liberties but infringements occur regularly in practice.
 2
 1

Political liberties are unsatisfactory codified and frequently violated.
Political Liberties
9
The United States generally has a strong record of protecting political liberties. The protections cover all of the recognized political freedoms of speech, association, voting, and pursuit of public office, and extend even to extreme groups such as neo-Nazis. Religious freedoms are protected even for religious fringe groups. In contrast with most developed democracies, the United States’ constitutional free-speech doctrine does not permit laws banning hate speech.

In one significant limitation to political rights, convicted felons are barred from voting in nearly all states, although usually not permanently. Additionally, while the government allows protest demonstrations for all kinds of causes, even when they may become disruptive or disorderly, local police have sometimes confined demonstrators to locations far removed from the target events (e.g., during G-8, G-20 and WTO meetings).

From 2015 to 2017, there was increasing media and political attention on the practice on many university campuses of imposing restrictions on speech deemed to offend one or more groups – primarily African Americans, LGBTQ or women. Some universities have barred conservative speakers from making appearances on campus, mostly citing security concerns that arise from left-wing activists’ efforts to disrupt the events. According to the non-profit Foundation for Individual Rights in Education (FIRE) , a majority of colleges and universities have speech codes with provisions that have been ruled unconstitutional by federal courts.

Recently, there have been reactions against such university censorship. Many mainstream liberal media outlets have been highly critical of this kind of censorship, but some have given both sides the opportunity to state their positions . The Trump administration’s Department of Education (DOE) has withdrawn a highly controversial, supposedly advisory letter that ordered universities to weaken free speech and due process rights on campus; the Obama administration had issued it to strengthen anti-discrimination and sexual harassment enforcement, backed by the threat of losing federal funds. The House Judiciary Committee, controlled by Republicans, had challenged the Obama administration’s interpretations of the law and warned campuses to ensure that their speech codes do not violate constitutional rights. FIRE reports that the number of universities with unconstitutional speech codes has declined for several years.

How effectively does the state protect against different forms of discrimination?

10
 9

State institutions effectively protect against and actively prevent discrimination. Cases of discrimination are extremely rare.
 8
 7
 6


State anti-discrimination protections are moderately successful. Few cases of discrimination are observed.
 5
 4
 3


State anti-discrimination efforts show limited success. Many cases of discrimination can be observed.
 2
 1

The state does not offer effective protection against discrimination. Discrimination is widespread in the public sector and in society.
Non-discrimination
8
The U.S. federal and state governments have enacted many laws prohibiting discrimination. At the federal level, enforcement is centered in a Civil Rights Division within the Justice Department and an independent Equal Employment Opportunity Commission. While the origins of these policies are found in the civil rights movement of the 1960s, the framework of protection has been extended from racial minorities to women, the aged and disabled, and in some state and local contexts, LGBTQ. The Obama administration made progress with regard to gender equality.

The federal government has not actively pushed affirmative-action policies, such as preferential treatment for disadvantaged groups, since the Clinton administration. The U.S. Supreme Court has imposed restrictions on state-university practices that favored black or Latino students in admissions, while upholding state policies that barred race or ethnicity as considerations in admission. In general, liberals and conservatives disagree on how much the persistence of unfavorable outcomes for African Americans in educational achievement, employment status, income, incarceration and other areas is a consequence of ongoing discrimination despite existing legal protections.

The Trump administration has announced reversals of some Obama-era anti-discrimination policies. The Justice Department has announced that an anti-discrimination law does not protect transgender workers, opening people up to potential discrimination in the workplace based on their gender identity. In 2017, Donald Trump signed a directive reinstating a ban on transgender individuals serving in the military. Transgender troops had been able to serve openly since the Obama administration lifted the ban in 2016. The Trump administration and the Republican-controlled Congress will undoubtedly minimize anti-discrimination enforcement. Attorney General Jeff Sessions was a strong opponent of anti-discrimination policies while he served in the Senate. The administration is also appointing numerous very conservative judges. It is possible that past anti-discrimination achievements will be eroded.

Rule of Law

#21

To what extent do government and administration act on the basis of and in accordance with legal provisions to provide legal certainty?

10
 9

Government and administration act predictably, on the basis of and in accordance with legal provisions. Legal regulations are consistent and transparent, ensuring legal certainty.
 8
 7
 6


Government and administration rarely make unpredictable decisions. Legal regulations are consistent, but leave a large scope of discretion to the government or administration.
 5
 4
 3


Government and administration sometimes make unpredictable decisions that go beyond given legal bases or do not conform to existing legal regulations. Some legal regulations are inconsistent and contradictory.
 2
 1

Government and administration often make unpredictable decisions that lack a legal basis or ignore existing legal regulations. Legal regulations are inconsistent, full of loopholes and contradict each other.
Legal Certainty
6
There is little arbitrary exercise of authority in the United States, but the legal process does not necessarily provide a great deal of certainty either. Some uncertainty arises as a consequence of the country’s adversarial legal system. Policy implementation is one area that suffers. Adversarial tendencies have several negative effects, such as supplanting the authority of elective policymaking institutions, reducing administrative discretion, causing delay in decision-making, and increasing reliance on courts and judges to design policies and/or administrative arrangements. On important issues, a government agency will undertake a lengthy, highly formalized hearing before issuing a decision. The resulting action will be appealed (often by multiple affected parties) to at least one level of the federal courts, and firms will not know their obligations under the new regulation for at least several years.

In recent years, certain constitutional issues have increased uncertainty across a range of issues. Citing Congress’s failure to resolve major issues, President Obama has acted unilaterally, taking an expansive view of executive discretion, in a variety of areas. In 2015 and 2016, federal courts nullified Obama’s expansive executive actions on undocumented immigrants and coal-fired power plants, indicating that unilateral presidential action can result in legal uncertainty. In 2017, President Trump adopted an even more aggressive approach to unilateral action, canceling many Obama-era regulations, especially on the environment. Because these actions will be subject to judicial appeals, businesses and individuals will have difficulty assessing their regulatory obligations for at least several years.

Citations:
https://www.degruyter.com/view/j/for.2017.15.issue-3/for-2017-0037/for-2017-0037.xml
Milkis and Jacobs

To what extent do independent courts control whether government and administration act in conformity with the law?

10
 9

Independent courts effectively review executive action and ensure that the government and administration act in conformity with the law.
 8
 7
 6


Independent courts usually manage to control whether the government and administration act in conformity with the law.
 5
 4
 3


Courts are independent, but often fail to ensure legal compliance.
 2
 1

Courts are biased for or against the incumbent government and lack effective control.
Judicial Review
9
The United States was the originator of expansive, efficacious judicial review of legislative and executive decisions in democratic government. The Supreme Court’s authority to overrule legislative or executive decisions at the state or federal level is virtually never questioned, although the Court does appear to avoid offending large majorities of the citizenry or officeholders too often or too severely. At least in the United States, however, judicial review does not simply ensure that legislative and executive decisions comply with “law,” in some neutral or consistent sense. The direction of judicial decisions depends heavily on the ideological tendency of the courts at the given time. The U.S. federal courts have robust authority and independence but lack structures or practices to ensure moderation or stability in constitutional doctrine.

In recent years, the Supreme Court has been sharply divided, with a 5 to 4 or larger conservative majority on most issues, while still providing narrow majorities for liberal decisions on some issues. Either way, the Court’s decisions clearly go far beyond any well-established legal principles, and in effect impose the constitutional views or policy preferences of the court majority. A series of decisions on campaign finance, culminating in the notorious 2010 Citizens United decision, has rendered campaign-finance regulation almost without substantive effect. The Court’s 2015 decision requiring states to permit same-sex marriage set aside more than 200 years of U.S. public policy. The death of conservative Justice Antonin Scalia in early 2016 left the court with a 4 to 4 liberal-conservative split, hindering its ability to rule on a considerable number of issues. In a sharp break from past practice, the Republican-controlled Senate refused to act on Obama’s nomination of a replacement for more than a year. After the 2016 election, President Trump nominated and the Senate confirmed a conservative Republican justice. The Senate’s handling of the appointment is an indicator of the partisan and ideological character of the federal judiciary in this era.

Judicial review remains vigorous. In 2015 and 2016, the federal courts struck down several expansive uses of executive power by the Obama administration as well as potentially discriminatory voter registration requirements in a number of states. During 2017, federal courts have blocked the Trump administration’s constitutionally dubious travel ban affecting visitors from certain Muslim countries as well as Trumps executive decision to end the DACA program.

To what extent does the process of appointing (supreme or constitutional court) justices guarantee the independence of the judiciary?

10
 9

Justices are appointed in a cooperative appointment process with special majority requirements.
 8
 7
 6


Justices are exclusively appointed by different bodies with special majority requirements or in a cooperative selection process without special majority requirements.
 5
 4
 3


Justices are exclusively appointed by different bodies without special majority requirements.
 2
 1

All judges are appointed exclusively by a single body irrespective of other institutions.
Appointment of Justices
7
Federal judges, including Supreme Court justices, are appointed for life by the president, with advice and consent (endorsement by a majority vote) by the Senate. In general, they are likely to reflect the political and legal views of the presidents who appointed them. Over the last 30 years, however, judicial appointments have become highly politicized. With the severe polarization of Congress in the 2000s, the opposition-controlled Senate has been increasingly willing to hold up confirmations for federal judgeships. When, however, the president’s party controls the Senate, the president’s nominees will receive casual scrutiny, with no requirement of ideological consensus. (Owing to a rule change introduced by the Democratic-controlled Senate in 2013, the Senate minority cannot filibuster most judicial appointments.) These arrangements fail to guarantee a politically “neutral” judiciary.

As of December 2017, Trump has nominated 59 people for federal judgeships. Among them, 19 have been confirmed by the Republican-controlled Senate: Neil Gorsuch to the Supreme Court, 12 circuit court judges and six district court judges. So far this year, four of Trump’s nominees have been judged by the standing committee of the American Bar Association to be “not qualified.” By comparison, no nominee received that rating from the ABA during President Obama’s first two years in office. While the White House has suffered from disorganization in some areas, the judicial nominee process has been relatively efficient and analogous to those in past administrations.

To what extent are public officeholders prevented from abusing their position for private interests?

10
 9

Legal, political and public integrity mechanisms effectively prevent public officeholders from abusing their positions.
 8
 7
 6


Most integrity mechanisms function effectively and provide disincentives for public officeholders willing to abuse their positions.
 5
 4
 3


Some integrity mechanisms function, but do not effectively prevent public officeholders from abusing their positions.
 2
 1

Public officeholders can exploit their offices for private gain as they see fit without fear of legal consequences or adverse publicity.
Corruption Prevention
7
The first year of the Trump presidency has brought a brazen and unprecedented disregard of established practices to prevent conflict of interest.

The U.S. federal government has long had elaborate and extensive mechanisms for auditing financial transactions, investigating potential abuses and prosecuting criminal misconduct. The Federal Bureau of Investigation (FBI) has an ongoing, major focus on official corruption. Auditing of federal-spending programs occurs through congressional oversight as well as independent control agencies such as the General Accountability Office (GAO) – which reports to Congress, rather than to the executive branch. The GAO also oversees federal public procurement. With all of these controls, executive-branch officials have been effectively deterred from using their authority for private gain and prosecutions for such offenses have been rare.

President Trump has openly flouted established practices, if not the law, with respect to conflict of interest. Most obvious, he has refused to sell off his extensive domestic and international business interests (especially hotels, casinos, and resorts) and to put the proceeds in a blind trust to avoid the potential of his financial interests influencing presidential decisions. Many individuals and groups, including foreign governments, stay at or hold events in his hotels in Washington, D.C. and other locations, often at inflated prices – thus directly contributing revenue to Trump’s businesses. He visited his various properties 100 times in his first year. Trump has defended his refusal to move his assets into a blind trust on the grounds that (in contrast with other federal officials) there is no conflict-of-interest statute that pertains to the president. His son-in-law Jared Kushner and daughter Ivanka have continued to run separate business while performing White House roles. The administration has been heedless of conflict-of-interest in appointments to regulatory and other positions. The administration simply refused to provide information to the Office of Government Ethics concerning potential conflicts among appointees, prompting the respected nonpartisan director of the office to resign in protest. Several Trump officials have been embroiled in scandals involving abuse of public resources (such as using military aircraft for vacation travel).
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