Making Policy, Making Law: An Interbranch Perspective(Making Policy, Making Law)

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.

Table of Contents:
Contributors ForewordJudge Robert A. Katzmann Acknowledgements Part I: Setting the Stage: Themes and ConceptsPutting the Pieces Together: American Lawmaking from an Interbranch PerspectiveJeb Barnes and Mark C. Miller 1. American Courts and the Policy Dialogue: The Role of Adversarial LegalismRobert A. Kagan 2. Adversarial Legalism, the Rise of Judicial Policymaking, and the Separation-of-Powers DoctrineJeb Barnes Part II: A Closer Look at Interbranch Perspectives3. The View of the Courts from the Hill: A Neoinstitutional PerspectiveMark C. Miller 4. The View from the PresidentNancy Kassop 5. Courts and AgenciesR. Shep Melnick Part III: Statutory Construction: The Interbranch Perspective Applied6. The Supreme Court and Congress: Reconsidering the RelationshipLawrence Baum and Lori Hausegger 7. The Judicial Implementation of Statutes: Three Stories about Courts and the Americans with Disabilities ActThomas F. Burke 8. The City of Boerne: Two Tales of One CityStephen G. Bragaw and Mark C. Miller Part IV: Constitutional Interpretation: The Interbranch Perspective Applied9. Judicial Finality or an Ongoing Colloquy?Louis Fisher 10. Constitutional Interpretation from a Strategic PerspectiveLee Epstein, Jack Knight, and Andrew D. Martin 11. Is Judicial Policymaking Countermajoritarian?Neal Devins 12. Governance as DialogueJeb Barnes and Mark C. Miller Bibliography

About the Author :
Mark C. Miller is an associate professor and chair of the Department of Government and International Relations, and director of the Law and Society Program at Clark University, and author of The High Priests of American Politics: The Role of Lawyers in American Political Institutions. Jeb Barnes is assistant professor in the Department of Political Science at the University of Southern California, and author of Overruled? Legislative Overrides, Pluralism, and Contemporary Court-Congress Relations. Mark C. Miller is an associate professor and chair of the Department of Government and International Relations, and director of the Law and Society Program at Clark University, and author of The High Priests of American Politics: The Role of Lawyers in American Political Institutions. Jeb Barnes is assistant professor in the Department of Political Science at the University of Southern California, and author of Overruled? Legislative Overrides, Pluralism, and Contemporary Court-Congress Relations.

Review :
This first-rate collection provides additional and more comprehensive support for a sophisticated, interactive political model of separated powers. . . . Anyone with an interest in American political institutions ought to read this volume. It is chock full of thoughtful and insightful scholarship on a central aspect of American governance. This first-rate collection provides additional and more comprehensive support for a sophisticated, interactive political model of separated powers. . . . Anyone with an interest in American political institutions ought to read this volume. It is chock full of thoughtful and insightful scholarship on a central aspect of American governance.