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.

Examines the patchwork evolution of school desegregation policy. In 1954, the Supreme Court delivered the landmark decision of Brown v. Board of Education-establishing the right to attend a desegregated school as a national constitutional right-but the decision contained fundamental ambiguities. The Supreme Court has never offered a clear definition of what desegregation means or laid out a framework for evaluating competing interpretations. In The Crucible of Desegregation, R. Shep Melnick examines the evolution of federal school desegregation policy from 1954 through the termination of desegregation orders in the first decades of the twenty-first century, combining legal analysis with a focus on institutional relations, particularly the interactions between federal judges and administrators. Melnick argues that years of ambiguous, inconsistent, and meandering Court decisions left lower court judges adrift, forced to apply contradictory Supreme Court precedents in a wide variety of highly charged political and educational contexts. As a result, desegregation policy has been a patchwork, with lower court judges playing a crucial role and with little opportunity to analyze what worked and what didn't. The Crucible of Desegregation reveals persistent patterns and disagreements that continue to roil education policy.

Examines the patchwork evolution of school desegregation policy. In 1954, the Supreme Court delivered the landmark decision of Brown v. Board of Education-establishing the right to attend a desegregated school as a national constitutional right-but the decision contained fundamental ambiguities. The Supreme Court has never offered a clear definition of what desegregation means or laid out a framework for evaluating competing interpretations. In The Crucible of Desegregation, R. Shep Melnick examines the evolution of federal school desegregation policy from 1954 through the termination of desegregation orders in the first decades of the twenty-first century, combining legal analysis with a focus on institutional relations, particularly the interactions between federal judges and administrators. Melnick argues that years of ambiguous, inconsistent, and meandering Court decisions left lower court judges adrift, forced to apply contradictory Supreme Court precedents in a wide variety of highly charged political and educational contexts. As a result, desegregation policy has been a patchwork, with lower court judges playing a crucial role and with little opportunity to analyze what worked and what didn't. The Crucible of Desegregation reveals persistent patterns and disagreements that continue to roil education policy.

One civil rights-era law has reshaped American society-and contributed to the country's ongoing culture wars Few laws have had such far-reaching impact as Title IX of the Education Amendments of 1972. Intended to give girls and women greater access to sports programs and other courses of study in schools and colleges, the law has since been used by judges and agencies to expand a wide range of antidiscrimination policies-most recently the Obama administration's 2016 mandates on sexual harassment and transgender rights. In this comprehensive review of how Title IX has been implemented, Boston College political science professor R. Shep Melnick analyzes how interpretations of ""equal educational opportunity"" have changed over the years. In terms accessible to non-lawyers, Melnick examines how Title IX has become a central part of legal and political campaigns to correct gender stereotypes, not only in academic settings but in society at large. Title IX thus has become a major factor in America's culture wars-and almost certainly will remain so for years to come.

Judicial interpretation of federal statutes has often been at the center of political controversy in recent years. In fact, it would be difficult to find a major domestic policy area in which statutory interpretation by the federal courts has not played a significant role in shaping the activities of government. In most important cases, judges base their interpretation not on the letter of the law, but on their reading of its history, purpose, and spirit. What judges discover between the lines of statutes often has major policy consequences. This book examines how statutory interpretation has affected the development of three programs: Aid to Families with Dependent Children, education for the handicapped, and food stamps. It explores how these decisions have changed state and national policies and how other institutions--especially Congress--have reacted to them. Although these three programs differ in several important ways, in each instance court action has expanded program benefits and increased federal control over state and local governments. R. Shep Melnick ties trends in statutory interpretation to broader policy developments, including the expansion of the agenda of national government, the persistence of divided government, and the resurgence and decentralization of Congress. He demonstrates that Congress frequently modifies or overturns court rulings, and he explains why statutory interpretation became so controversial in the 1980s. Between the Lines also explores the understanding of welfare rights that has guided the development of welfare policy over the past fifty years. What basic beliefs about the welfare state underlie court decisions interpreting these statutes? Towhat extent do members of Congress share these views? How have the assumptions of judges and members of Congress changed over time? These are some of the questions addressed in this detailed study of American welfare policy.

In recent years, federal courts have become increasingly aggressive in shaping regulatory policy, abandoning their traditional deference to bureaucratic expertise. This new judicial activism has been particular evident in the regulation of air pollution. R. Shep Melnick analyzes the effects a variety of court decisions have had on federal air pollution control policy and assesses the courts' institutional capacity for policymaking in such a complex arena. In six cases studies of environmental programs or issues he examines the interplay among the courts, the Environmental Protection Agency, Congress, and the White House. The conventional wisdom is that the courts have improved environmental policymaking, but Melnick concludes that as a whole "the consequences of court action under the Clean Air Act are neither random nor beneficial." He finds that "court action has encouraged legislators and administrators to establish goals without considering how they can be achieved," widening the gap between promise and performance. The results, he charges, have been increased cynicism, serious inefficiencies and inequities, and a lack of rational debate. An analysis of the institutional characteristics of the judicial branch reveals how these problems have come about and why they are likely to afflict other programs as well as environmental regulation. The author proposes several reforms to improve the courts' ability to handle regulatory cases.