edited by Mark C. Miller and Jeb Barnes
contributions by Mark C. Miller, Nancy Kassop, R. Shep Melnick, Lawrence Baum, Lori Hausegger, Thomas F. Burke, Stephen G. Bragaw, Mark C. Miller, Louis Fisher, Lee Epstein, Jack Knight, Andrew D. Martin, Neal Devins, Jeb Barnes, Mark C. Miller, Jeb Barnes, Mark C. Miller, Robert A. Kagan and Jeb Barnes
foreword by Robert A. Katzmann Jr.
Georgetown University Press, 2004
Paper: 978-1-58901-025-3
Library of Congress Classification JK305.M35 2004
Dewey Decimal Classification 320.60973


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.