Making Policy, Making Law

An Interbranch Perspective

Mark C. Miller, Jeb Barnes, Mark C. Miller, Jeb Barnes

• Publisher: Georgetown University Press
• Year: 2004
• ISBN:
  9781589013643
• Topic: Politica e relazioni internazionali
• Subtopic: Politica pubblica

The functioning of the U.S. government is a bit messier than Americans would like to think. The general understanding of policymaking has Congress making the laws, executive agencies implementing them, and the courts applying the laws as written—as long as those laws are constitutional. Making Policy, Making Law fundamentally challenges this conventional wisdom, arguing that no dominant institution—or even a roughly consistent pattern of relationships—exists among the various players in the federal policymaking process. Instead, at different times and under various conditions, all branches play roles not only in making public policy, but in enforcing and legitimizing it as well. This is the first text that looks in depth at this complex interplay of all three branches.

The common thread among these diverse patterns is an ongoing dialogue among roughly coequal actors in various branches and levels of government. Those interactions are driven by processes of conflict and persuasion distinctive to specific policy arenas as well as by the ideas, institutional realities, and interests of specific policy communities. Although complex, this fresh examination does not render the policymaking process incomprehensible; rather, it encourages scholars to look beyond the narrow study of individual institutions and reach across disciplinary boundaries to discover recurring patterns of interbranch dialogue that define (and refine) contemporary American policy.

Making Policy, Making Law provides a combination of contemporary policy analysis, an interbranch perspective, and diverse methodological approaches that speak to a surprisingly overlooked gap in the literature dealing with the role of the courts in the American policymaking process. It will undoubtedly have significant impact on scholarship about national lawmaking, national politics, and constitutional law. For scholars and students in government and law—as well as for concerned citizenry—this book unravels the complicated interplay of governmental agencies and provides a heretofore in-depth look at how the U.S. government functions in reality.

PART I
Setting the Stage: Themes and Concepts

Putting the Pieces Together
American Lawmaking from an Interbranch Perspective

JEB BARNES AND MARK C. MILLER

AMERICAN POLICYMAKING IS INHERENTLY COMPLEX. WHEREAS other industrialized democracies tend to feature centralized lawmaking processes, which channel policy disputes through national bureaucracies and strong political parties, the American system of checks and balances disperses federal lawmaking authority among multiple, overlapping political forums. As a result, federal policymaking power is shared: Congress is given the primary power to draft laws, subject to the president’s veto and judicial review; the executive branch is given the primary power to implement laws, subject to congressional oversight and judicial review; and the courts have the primary power to interpret laws, subject to a variety of legislative and executive checks, including the appointment process, budgetary powers, and the passage of “overrides”—laws that explicitly reverse or materially modify existing judicial interpretations of statutes.

This complexity casts a long shadow over the teaching and studying of American politics and policymaking. In the classroom, because it is difficult to convey the tangled web of interactions among federal lawmakers—much less the interplay among federal, state, and local governments—that underlies the making of policy, students tend to learn about American politics piecemeal. Specifically, after a brief sojourn into the framing of the Constitution, many leading introductory texts turn to the major actors of American government, separately examining Congress, the courts, the presidency, agencies, the media, and so forth (see, e.g., Ginsberg, Lowi, and Weir 2003; Lasser 2000; Wilson and DiIulio 1995; Pfiffner 1995; and Nivola and Rosenbloom 1990).

Similarly, instead of attacking the complexity of American policymaking head-on, researchers have tended to specialize, focusing on specific governmental institutions, on distinct aspects of the policymaking process, or on particular methods of inquiry. This practice arguably reached a zenith during the behavioral revolution in political science, which challenged the existing focus on formal institutions and concentrated on the determinants of the behavior of individual political actors, such as how judges, members of Congress, and individual citizens vote. Despite inroads of so-called new institutionalism in bringing institutions and rules back into the study of policymaking, behavioralism remains a dominant perspective, especially in the field of judicial politics.1

Given the obvious classroom appeal of parsing the complexity of American policymaking into parts, and the ongoing scholarly contributions of specialized studies of political behavior, one might ask: Why put the pieces together? The immediate answer is that American policymaking does not result from the edicts of any single branch of government; it emanates from interactions among the branches. This is particularly true today, as the emergence of a modern, administrative state in the United States has blurred the already fuzzy lines between legislative, executive, and judicial functions. As a result, although often a useful starting point, studying the individual components of the American policymaking process often provides a superficial—and sometimes misleading—view of the policymaking process as well as the role of each branch in the making of policy.

Consider behavioralist accounts of the U.S. Supreme Court as a national policymaker. Overall, this approach tends to view the Supreme Court and Congress as rivals, and asks whether—and under what conditions—the Court uses its power of judicial review to thwart the preferences of the “dominant lawmaking coalition.” Applying this approach, behavioralists have found that the Supreme Court generally does not challenge the other branches of government. Instead, the Court tends to rule consistently with the interests of the dominant coalition, and its most dramatic decisions seek to impose the policy agenda of the dominant national coalition on recalcitrant local and state officials (Dahl 1957). Moreover, to the extent the Supreme Court does confront the dominant coalition, it tends to fight rearguard actions, representing the old coalition’s preferences against the emerging new coalition’s preferences during periods of “critical realignment” in national politics (Funston 1975; Adamany 1980).

To reiterate: The behavioralist perspective has considerable merit. It offers a useful “first cut” at understanding the Supreme Court’s role in the policymaking process, and helps to dispel naive assumptions that the Supreme Court is a “non-political” branch of government that always champions the rights of unpopular political minorities. However, it is only scratches the surface of the Supreme Court’s diverse relationships with the other branches of government (Casper 1976; Graber 1993; McCann 1999; Lovell 2003; see also Barnes 2004). For example, the Supreme Court and Congress are not always rivals. There are cases in which the dominant lawmaking coalition is either unwilling or unable to address issues, and the Court steps into the policymaking vacuum (Epstein and Walker 1995; see also Feeley and Rubin 1998). Indeed, as Graber (1993) has powerfully argued, members of the dominant lawmaking coalition may invite judicial policymaking to avoid issues that are politically too hot to handle. Under these conditions, independent judicial policy-making does not thwart the dominant lawmaking coalition; it serves the reigning coalition and party system by insulating the elected branches of government from divisive issues, such as slavery during the Jacksonian era, racial integration following World War II, and abortion during the 1970s (Graber 1993; McAdam 1982; see also McCann 1999, providing an insightful overview of the Supreme Court as a policymaker).

There is another, perhaps more subtle, reason for trying to put the pieces together through an interbranch perspective. As scholars have grown more specialized, the field has produced a growing number of “sects” that have become increasingly insular. To make matters worse, career pressures reinforce the drive to differentiate—as opposed to synthesize—insights and approaches (Heclo 1994). The result, in our judgment, is an unnecessary balkanization among scholars, which has identified a daunting array of causal factors relevant to policymaking and lost opportunities for fruitful dialogue within the discipline. A central irony follows: in the name of parsimony and simplification, specialization has produced a confusing clutter of studies and findings. Put differently, having let “one hundred flowers bloom,” it is time to step back and look at the garden.

Accordingly, this volume seeks to put the pieces together on two levels. Substantively, we have collected original essays from some of the leading scholars who adopt an interbranch perspective on contemporary policymaking, with a special focus on the role of the federal courts in current policymaking. The goal is to offer students fresh perspectives on American policymaking, which challenge textbook descriptions of American government, especially the classic view that elected politicians are the “principals” in the making of policy and unelected judges should be their faithful “agents.” Methodologically, we bring together diverse approaches to studying interbranch relations, especially relationships between the courts and the other branches. Some are quantitative; some are qualitative; and some are normative. Some chapters use a historical approach, some are behavioral, some are strategic, some are comparative, and some are institutional in nature. By collecting these diverse studies into a single volume, we hope to underscore the value of an eclectic approach to understanding American lawmaking, while pointing to significant common ground that lies beneath the surface of different methodological approaches.

We believe that this combination of contemporary policy analysis, an interbranch perspective, and diverse methodological approaches fills a gap in the literature, especially the literature on the role of the courts in the American policymaking process. For example, Cornell Clayton and Howard Gillman’s superb edited volumes on the Supreme Court (Clayton and Gillman 1999; Gillman and Clayton 1999) focus on the Court and new institutionalist interpretive approaches, but do not focus on the policymaking process overall or highlight a range of methodologies. Lawrence Dodd and Calvin Jillison’s (1994) thought-provoking collection of essays in The Dynamics of American Politics: Approaches and Interpretations consciously embraces diverse methodological approaches, but focuses on broad theoretical issues such as the nature of social change and the role of macro- versus microanalysis for studying politics. Other excellent edited volumes concentrate on specific institutions, such as Lawrence Dodd and Bruce Oppenheimer’s (2000) Congress Reconsidered, Michael Nelson’s (2000) The Presidency and the Political System, and Lee Epstein’s (1995) Contemplating Courts, or on specific issues, such as David Ryden’s (2000) The U.S. Supreme Court and the Electoral Process, but do not embrace an interbranch perspective. We hope that this collection of essays will find a place next to these volumes, providing a useful tool for teachers, who want to introduce students to the interactive nature of American policymaking, as well as for scholars, who are interested in building bridges across divisions in the field of political science.

PUTTING THE PIECES TOGETHER: AN OVERVIEW

The book is divided into four parts. Part I is titled “Setting the Stage: Themes and Concepts.” It lays the book’s foundation, providing context and introducing empirical and normative issues that are examined and reexamined throughout the book. To begin, in chapter 1, Robert Kagan offers a comparative perspective on interbranch relations in the United States. Kagan argues that the classic conception of interbranch relations envisages that the chief executive and legislature negotiate basic policy decisions, which are memorialized in legislation. Specialized regulatory agencies implement the law according to specific administrative rules. Courts then adjudicate disputes that arise under the statutes and regulatory rules and ensure that agencies do not act arbitrarily.

Although this idealized description may roughly capture the division of labor among lawmakers in other economically advanced democracies, Kagan argues it does not accurately reflect the current American experience. The reason is that, when compared cross-nationally, the United States has always featured greater levels of “adversarial legalism”: a mode of dispute resolution, policymaking, and implementation in which public interest groups frequently place core policy and regulatory issues before the courts, and politically selected, independent judges not infrequently make policy under the guise of resolving legal disputes. Meanwhile, the groups that lose in court often “appeal” to the elected branches of government, demanding legislative relief from unfavorable court decisions. Throughout the process, the basic rules of the game are subject to constant litigation and political revision, in which legislative, executive, and judicial functions are often shared and sometimes reversed, in that the courts sometimes act as the lead policymakers and the elected branches intervene to resolve specific disputes among the contending interests.

In chapter 2, Jeb Barnes examines the implications of revved-up adversarial legalism and the related rise of judicial policymaking for the separation-of-powers doctrine. He argues that adversarial legalism’s blurring of legislative, executive, and judicial functions clearly violates the standard view of the separation of powers, which holds that elected politicians should be the principal lawmakers and non-elected judges should serve as faithful agents. However, instead of criticizing heightened adversarial legalism and judicial policymaking, Barnes argues that the standard view of the separation-of-powers doctrine should be rejected, because it rests on questionable formal, functional, and normative arguments. In place of the standard view, Barnes proposes that the separation-of-powers doctrine is best understood as creating a general arrangement of primary powers among the branches of government that differentiates American policymaking from other systems, such as parliamentary systems, as opposed to delineating rigid policymaking roles. From this perspective, the issue is not whether current interbranch relations adhere to neatly defined roles, but whether—and under what conditions—interbranch relations promote core democratic values, such as broad political participation and mutual accommodation.

Part II, titled “A Closer Look at Interbranch Perspectives,” presents interbranch lawmaking from the perspectives of Congress, the president, and the federal agencies. All the chapters recognize that policymaking and lawmaking often involve an intricate dance among various governmental institutions. Several themes emerge. First, similar to the Supreme Court, each branch of government looks beyond their own turf and considers the actions and reactions of other actors when formulating policy. Second, each branch has a unique institutional context. Third, regardless of the methodological approach taken, these chapters underscore that policymaking and lawmaking require negotiation and compromise among individual actors located in the various institutions. These chapters thus reinforce the theme that no governmental institution functions in a vacuum, but must act to accommodate other influences and actors in the policymaking process.

Chapter 3, by Mark C. Miller, serves two purposes. It starts by defining some of the key components of the historical strain of neoinstitutional analysis, including the concepts of institutional culture and institutional will. The rest of the chapter then describes the role of Congress in the policymaking process with particular emphasis on court–Congress relations. Miller argues that overall tension between Congress and the courts is on the rise in large part because of their different institutional cultures. Members on both sides of the aisle in Congress charge courts with trespassing on their lawmaking domain, while courts complain that Congress has largely fallen down on the job by writing inherently vague or flawed statutes, which then pass the buck to the courts.

This overall antipathy, however, masks a more complex reality in which court–Congress relations—and the underlying division of labor in the policymaking process between the branches—vary across types of committees. Thus the Judiciary Committees, which traditionally have been the committees of lawyers in Congress, show higher degrees of deference to the courts, whereas the Commerce Committees tend to treat courts as just another political actor, whose input is considered but is not entitled to special weight. The implication is that American policymaking not only features shared lawmaking power, but also that courts and Congress share lawmaking power differently in different institutional and issue contexts.

Nancy Kassop offers a similar analysis of the presidency in chapter 4, describing how the modern presidency and its relationship to the other branches of government defy its traditional role of implementing the law. Specifically, she views the policymaking role of the president through several lenses: (1) president as unilateral lawmaker, (2) president as negotiator in the legislative process, (3) president as administrator who selects officials to either perform independent responsibilities (judges) or implement his policies (executive officers), and (4) president as litigant, whose actions are reviewed and sometimes rebuffed by the courts. The common thread is that a few strong presidents have taken the largely undefined role of the chief executive under the Constitution and forged a place in the policymaking process that is far more complex, differentiated, and powerful than envisaged by the Framers.

In chapter 5, Shep Melnick views agencies from an interbranch perspective. He begins by detailing the rise of a powerful federal bureaucracy in the United States, which reflects two, inter-related factors. First, federal programs and bureaucracy were vastly expanded since the beginning of the New Deal. As result, federal programs now reach into nearly every corner of American society. Second, American politics has become nationalized in that (1) the federal government has gained power at the expense of state and local governments and (2) differences in state programs have come under fire, especially in the South, where states combined paltry public spending with a long history of racial discrimination.

Melnick argues that the growth of federal programs alone did not result in heightened judicial power. Indeed, for a brief period following the constitutional revolution of 1937, power shifted to the president and expert agencies and not to the courts. However, the traditional American distrust of centralized power reasserted itself as reformers in the 1960s created a series of procedural and substantive mechanisms, which allowed them to haul federal agencies to court. The bottom line? Similar to Kagan, Melnick argues that the combination of increased federal programs and distrust of centralized authority has resulted in both an expanded federal bureaucracy and more assertive courts in the United States.

Parts I and II offer a fresh look at the current state of policymaking in the United States. The crux of these chapters is that present-day American policymaking is not only more comprehensive and active, but also its structure is more complex and protean. This political reality, in turn, casts doubt on textbook accounts of the role of each branch in the policymaking process and the separation-of-powers doctrine. The question remains: how can we translate these rich descriptions of interbranch relations into a useful optic for examining today’s policymaking and the contributions of the competing actors?

Parts III and IV seek to answer this question by example, collecting essays that apply an interbranch perspective to both statutory construction and constitutional interpretation. Part III, titled “Statutory Construction: The Interbranch Perspective Applied,” examines how interbranch relations shape—and reshape—the meaning of federal statutes; it explains how Congress sometimes attempts to use statutes to overturn or to modify Supreme Court decisions; and it suggests how political actors have adapted their political resources to shape interbranch relations.

Lawrence Baum and Lori Hausegger open the analysis in chapter 6. Their chapter does double duty. First, it provides a concise—and insightful—overview of strategic accounts of court–Congress interaction, and identifies three core assumptions underlying the standard strategic model: (1) Congress and the courts act on ideological bases; (2) courts adapt their decisions so as to avoid congressional reversals of their decisions; and (3) Congress has the last word on the meaning of statutes. Second, it puts these assumptions to the test, using data on the theoretically interesting cases of the Supreme Court inviting congressional overrides of their decisions. They find that, although the strategic model remains a powerful framework, its core assumptions need to be adjusted to reflect a subtler landscape of court–Congress relations in which (1) motivations include n...