Making Policy, Making Law

Book excerpt: This volume proposes a new way of understanding the policymaking process in the United States by examining the complex interactions among the three branches of government, executive, legislative, and judicial. Collectively across the chapters a central theme emerges, that the U.S. Constitution has created a policymaking process characterized by ongoing interaction among competing institutions with overlapping responsibilities and different constituencies, one in which no branch plays a single static part. At different times and under various conditions, all governing institutions have a distinct role in making policy, as well as in enforcing and legitimizing it. This concept overthrows the classic theories of the separation of powers and of policymaking and implementation (specifically the principal-agent theory, in which Congress and the presidency are the principals who create laws, and the bureaucracy and the courts are the agents who implement the laws, if they are constitutional). The book opens by introducing the concept of adversarial legalism, which proposes that the American mindset of frequent legal challenges to legislation by political opponents and special interests creates a policymaking process different from and more complicated than other parliamentary democracies. The chapters then examine in depth the dynamics among the branches, primarily at the national level but also considering state and local policymaking. Originally conceived of as a textbook, because no book exists that looks at the interplay of all three branches, it should also have significant impact on scholarship about national lawmaking, national politics, and constitutional law. Intro., conclusion, and Dodd's review all give good summaries.