Policy Drift
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Policy Drift

Shared Powers and the Making of U. S. Law and Policy

Norma M. Riccucci

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Policy Drift

Shared Powers and the Making of U. S. Law and Policy

Norma M. Riccucci

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About This Book

The role of formal and informal institutional forces in changing three areas of U.S. public policy: privacy rights, civil rights and climate policy There is no finality to the public policy process. Although it’s often assumed that once a law is enacted it is implemented faithfully, even policies believed to be stable can change or drift in unexpected directions. The Fourth Amendment, for example, guarantees Americans’ privacy rights, but the 9/11 terrorist attacks set off one of the worst cases of government-sponsored espionage. Policy changes instituted by the National Security Agency led to widespread warrantless surveillance, a drift in public policy that led to lawsuits challenging the constitutionality of wiretapping the American people. Much of the research in recent decades ignores the impact of large-scale, slow-moving, secular forces in political, social, and economic environments on public policy. In Policy Drift, Norma Riccucci sheds light on how institutional forces collectively contributed to major change in three key areas of U.S. policy (privacy rights, civil rights, and climate policy) without any new policy explicitly being written. Formal levers of change—U.S. Supreme Court decisions; inaction by Congress; Presidential executive orders—stimulated by social, political or economic forces, organized permutations which ultimately shaped and defined contemporary public policy. Invariably, implementations of new policies are embedded within a political landscape. Political actors, motivated by social and economic factors, may explicitly employ strategies to shift the direction of existing public polices or derail them altogether. Some segments of the population will benefit from this process, while others will not; thus, “policy drifts” carry significant consequences for social and economic change. A comprehensive account of inadvertent changes to privacy rights, civil rights, and climate policy, Policy Drift demonstrates how unanticipated levers of change can modify the status quo in public policy.

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Publisher
NYU Press
Year
2018
ISBN
9781479896356

1

The Making of Law, Policy, and Policy Drifts

There is no finality to the public policy process. It is ongoing and continuous, and even those policies believed to be settled and stable can change or drift in unexpected directions.1 To be sure, some policies achieve greater durability or stability, depending upon the political and legal landscapes that surround those policies. But there is no fixed formula for predicting the durability of public policy, because unanticipated levers of change such as economic, political, ideological, or social forces can modify the status quo in public policy, ultimately leading to further policy shifts or drifts. Recent history reveals this to be the case.
For example, Americans’ privacy rights are guaranteed by the Fourth Amendment to the U.S. Constitution, ratified in 1791. Yet the 9/11 terrorist attacks set off what many believe to be the worst case of government-sponsored espionage since the McCarthy era.2 Policy changes instituted by the National Security Agency under the George W. Bush administration led to a widespread warrantless surveillance program—in other words, warrantless wiretapping. This drift in public policy set off a massive number of lawsuits challenging the constitutionality of the wiretapping of the American people. Whistleblowers from Edward Snowden to Private Bradley (now Chelsea) Manning have been condemned as traitors by some, and glorified as heroes by others for leaking classified information. In May 2015 the first NSA warrantless program Snowden disclosed was ruled illegal by a federal appeals court, representing one of the first declassifications and breakdowns of the Patriot Act. However, although Congress subsequently amended surveillance policy in response to that ruling, there are renewed concerns about the government’s surveillance policies and its continued efforts to spy on Americans.
Another example can be seen in the 2007 U.S. Supreme Court’s decision in Ledbetter v. Goodyear Tire and Rubber Company, which effectively altered public policy by making it more difficult for public- and private-sector employees to file pay discrimination complaints against their employers. The Court ruled that plaintiffs charging pay discrimination under Title VII of the Civil Rights Act of 1964 must file their lawsuit within 180 days of the actual occurrence of the discriminatory practice, notwithstanding the fact that those practices cannot always be established or uncovered within that time period. The decision was a decisive blow to efforts aimed at pay equity between women and men. In response to this ruling, President Obama and the 111th Congress joined forces to pass the Lilly Ledbetter Fair Pay Act, which resets the 180 days to after each discriminatory act occurs and allows for recovery of back pay up to two years prior to the complaint. This act, however, can be repealed or altered at any time.
A final example can be seen in President Obama’s battle against an intransigent Congress on climate policy. Republicans in particular question or deny the science surrounding global warming, and have vociferously opposed policies to curb greenhouse gas emissions. In June 2014 President Obama instructed the EPA to issue his proposed Clean Power Plan, which would cut carbon dioxide emissions and other toxic pollutants produced by power plants across the country. State governments and industry groups vowed to fight the EPA on this administrative fiat. A number of consolidated lawsuits that were filed against the EPA reached the U.S. Supreme Court in February 2016; the lawsuits charged in part that states would be severely impacted economically by the EPA’s rule, causing major job losses and energy-price increases. The High Court backed industry and the states in the case, West Virginia v. Environmental Protection Agency (2016), temporarily blocking implementation of the Clean Power Plan, also known as the global warming rule.3 It was a setback to the Obama administration’s climate action policies and was viewed as an effort to micromanage the rulemaking authority of the EPA. With the election of Donald Trump to the U.S. presidency, climate control policy is certain to drift in directions other than those supported by the Obama administration. Hence the durability or stability of climate policy remains in question. This speaks to the essence of this book.
These three cases indicate how the three branches of government at the federal level as well as other stakeholders compete for power in an effort to alter or “fix” existing laws and policies. Changes in political, economic, and social contexts over time force modifications in policies or the interpretation of laws without fundamentally changing the existing structures of law or policy, although interpretations under the law may change. This has been referred to as “policy drift” by Jacob Hacker.4 Policy drifts are, in effect, dependent upon changes to the social, economic, and political milieux. This conceptual framework, as Hacker points out, “illuminates and clarifies the sometimes-covert strategies that political actors adopt when trying to transform embedded policy commitments.”5 This framework, discussed more fully later in this chapter, clearly illustrates the fragmented and fluctuating nature of public policy making: law or policy can remain in a perpetual state of flux.6 Thus, the manner in which policies or programs operate will change in significant ways over time, which may even produce adverse effects for the initial intended beneficiaries of a law or policy as originally enacted or adopted. Such was the case with the U.S. Supreme Court’s Ledbetter decision discussed earlier. The durability of policy shifts then remains questionable.
The primary purpose of my book is to examine shared powers in the making of public policy through the framework of policy drifts. Policy drift has been underutilized as a framework for studying changes or shifts in public policy, yet it can be instrumental for sifting through the various factors that can predict or lead to the drifts. I look ultimately at the durability of the drifts based on a host of factors, including shifts in the structure or composition of stakeholders (e.g., Congress). The book offers contemporary cases to illustrate that shared powers explicate and elucidate policy drifts over time. The three areas were selected because of their ongoing complexity, relevance, and significance to the American people. The central thesis of this book is that formal levers of change, often unanticipated (e.g., U.S. Supreme Court decisions; inaction by Congress; actions by interest groups), stimulated by exogenous social, political, ideological, or economic forces, foment permutations that ultimately shape and define contemporary public policy; some segments of the population will benefit from this process, while others will not. Thus, policy drifts carry significant consequences for social and economic change. Ultimately, and most importantly, there is no finality to public policy or the policy cycle. It is ongoing and continuous. My aim reflects that of Beryl Radin and Willis Hawley in their analysis of federal reorganization. They state that the policy process is “continuous and open-ended” and “has its own functional demands” and institutional settings “where different actors have varying degrees of both authority and legitimacy.”7 Policies that were thought to be settled and stable reopen to new, often unexpected or unpredictable directions.
As this book will show, laws and public policies, whether regulatory, distributive, or redistributive, are developed and implemented in this nation in part as a result of shared powers by the executive, legislative, and judicial branches of government.8 Each branch of government exerts power and political will in its own unique way, but a single branch does not operate at the exclusion of the others. The U.S. Constitution delineates the formal powers of the executive, legislative, and judicial branches of government. Checks and balances work to prevent the usurpation of power by any one branch. The bureaucracy also plays a vital part in policy debates to the extent that it serves as the administrative arm of the president.9 The role of bureaucracy in its capacity as a professional administrative complex is also an important one, since bureaucratic resistance can occlude policy shifts desired by the president or Congress.10
But shared powers go beyond the separation of powers. Traditionally the term “shared powers” refers to relations between the federal and state governments (i.e., federalism).11 But a broader interpretation conceptualizes shared powers as the sharing of powers between and among the three branches of the federal government, the bureaucracy, special interest groups, consumer groups, contractors, state governments, the media, and others.12 In this sense, shared powers derive from a composite of political theories or frameworks of policy making, which will be addressed more fully later in this chapter.13 These theories set forth the proposition that in addition to the formal powers of government, there are other stakeholders that participate in the policy-making process to promote their particular interests as well as block the interests of others. The outcome can produce fundamental changes to the policy and its initial objectives, and have an enormous impact on the interests of the stakeholders. These frameworks of policy making further hold that to the extent that competing interests exert power, democracy is better served.
The book will show that in some cases policy drifts occur as a result of the participation of and power exerted by a narrow set of policy players or stakeholders, such as the three branches of the federal government (i.e., the institutional model discussed later). In other cases, coalitions of interested parties may have greater control over the process and policy drifts (e.g., advocacy coalition framework, discussed later). The policy drifts may depend on the policy area, the stakeholders, and the specific economic, social, ideological, or political forces in operation at a particular time.14
Importantly, the transformations or drifts can sometimes come in large spurts or increments, as seen with the Patriot Act of 2001, discussed in chapter 2. In addition, the book does not seek to address political efforts to replace or completely eliminate an existing law or policy, such as the welfare reform bill did in 1996. There, the entitlement program Aid to Families with Dependent Children (AFDC) was completely gutted and replaced by the Temporary Assistance for Needy Families, which sought to end welfare and move recipients into jobs.
This book illustrates the impact of political processes on law and public policy over the course of time, and how each of the branches of government and other stakeholders participate in shaping the actual contours of specific laws or policies in the areas of privacy rights, civil rights, and environmental policy. This book will also help to clarify popular misconceptions, such as the idea that policy is made in a vacuum by, for example, the president or the Congress. In effect, the book shows that policy success or failure is systemic and institutional and cannot be attributed to a single branch of government, another common fallacy. The book will also address the challenges to federalism when, for example, the president uses executive orders to circumvent Congress. For instance, when the president issues an executive order on climate change, some states will inevitably file a lawsuit, claiming that it will have an adverse impact on their economies. Obviously, an executive order or action does not carry the same weight as a statute passed by the U.S. Congress, and a newly elected president can effectively vacate an executive order issued by a predecessor. While states can challenge the constitutionality of a federal statute, executive orders incur greater wrath from the states, thereby leading to lawsuits.15
The book will also address the implications of shared powers for the promotion of democracy, political accountability, and states’ rights.16 The shared powers model of public policy produces gains for some and losses for others. And, as noted, political actors motivated by exogenous social and economic factors may explicitly employ strategies to derail existing policies. But this was in fact envisioned by the nation’s founders—a fragmented system of government, based on checks and balances, to ensure that power would not accumulate perpetually in any single body, institution, or group of individuals.
The remainder of this chapter addresses the formal (i.e., constitutional) powers of the three branches of government. Theories of policy making, including the role of various players or stakeholders in the policy process, formal or informal, including the bureaucracy, will also be discussed.

The Separation of Powers

James Madison wrote in Federalist Paper No. 47, “The accumulation of all powers, legislative, executive and judiciary in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”17 While the English philosopher John Locke is credited with advancing the idea of separating executive and legislative powers, it was the French philosopher Montesquieu who influenced Madison and the other founders in framing a Constitution to separate the legislative, executive, and judicial powers of government in order to prevent any single branch from acquiring and accumulating complete power, the effects of which would constitute a threat to liberty, justice, and democratic rule.18 It would, in fact, promote the form of monarchical rule that the nascent nation sought to eschew. The constitutional system of the separation of powers would have an integral structure of checks and balances, where each branch would serve as a check on the others in order to ensure a balance of power among all three branches.
The separation of powers has been seen globally as the very foundation of liberal democracy. Its historical and political significance has endured, and it has become a symbol of constancy and accountability. The separation of powers is the sine qua non of the legislative and policy-making processes in the United States. While not the only basis for public policy making, as discussed below, the U.S. Congress, the president, and the U.S. Supreme Court participate in the policy process from various perspectives.19 The agenda setting and formulation and development of law or pol...

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