Project Muse. - Policy Drift Shared Powers and the Making of U.S. Law and Policy

Norma M. Riccucci

NEW YORK UNIVERSITY PRESS

New York

NEW YORK UNIVERSITY PRESS

New York

www.nyupress.org

2018 by New York University

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References to Internet websites (URLs) were accurate at the time of writing. Neither the author nor New York University Press is responsible for URLs that may have expired or changed since the manuscript was prepared.

Library of Congress Cataloging-in-Publication Data

Names: Riccucci, Norma, author.

Title: Policy drift : shared powers and the making of U.S. law and policy /

Norma M. Riccucci.

Description: New York : New York University Press, 2018. | Includes bibliographical references and index.

Identifiers: LCCN 2017012919 | ISBN 9781479845040 (cl : alk. paper) | ISBN 9781479839834 (pb : alk. paper)

Subjects: LCSH: LegislationUnited States. | LawPolitical aspectsUnited States.

Classification: LCC KF4945 .R53 2018 | DDC 320.60973dc23

LC record available at https://lccn.loc.gov/2017012919

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About a month after the 9/11 attacks, a friend of mine living in New York City placed a phone call to friends in Australia to share her distress and grief about the terrorist attacks. After misdialing the number, she promptly hung up the telephone receiver. Within a matter of seconds, her phone rang and the low, deep voice on the other end asked, Were you just trying to place a call to Afghanistan? My friend, shaken by the intense, throaty voice and line of questioning, answered, No, I was trying to call a friend in Australia. The line then went dead. The episode created such a fear in her that she wouldnt dial an international number for almost a year. This experience, in part, inspired me to research privacy and the Patriot Act. I began to wonder whether the government was tracking my Internet search history, and how we got to the point where this was something I would wonder.

I have long been interested in the jockeying of powers between and among the three branches of government, along with the bureaucracy, interest groups, and other stakeholders in the policy process. The strategies and methods employed by the various actors seemed provocative and in some cases enervating. I questioned, for example, how the oil and gas industries were able to flagrantly elude and violate environmental laws, and in some cases, do so in collusion with the government. How was the government allowed to repeatedly surveil the American citizenry, even with the knowledge that the activities were illegal or unconstitutional? And why were some courts willing to retreat on the progress this nation had made on civil rights?

The answers to these questions seem simple, but the complex nature of the policy process in our society precludes a simple answer. For one thing, our democratic state allows for different factions to compete with one another for power. In effect, the system is set up to produce both winners and losers and discontent in general when the policies dont work in our favor. But living in a democracy ensures that corrections and adjustments can be made to those imperfect, dissatisfying outcomes.

I have selected three significant policy areas of interest to scholars and studentssurveillance and privacy rights, civil rights, and climate policyand illustrate through a longitudinal analysis the various strategies in which policy shifts, or what Jacob Hacker calls drifts, occur. It goes beyond the standard policy development and implementation research to study policy drift both empirically and normatively within a multilevel governance framework. Much of the research done in recent decades in public administration and policy, public management, political science, and law ignores the impact of time on public policy, especially the impact of large-scale, slow-moving, secular forces in the political, social, and economic environments.

Importantly, this book is intended for classroom use. Students of public policy, administration, and law often assume that once a law is enacted, it is implemented faithfully. In turn, those perspectives are reinforced by a media that mostly take a largely static perspective on public policy and portray effortssuch as the current effort to hinder, if not roll back, the Affordable Care Actas unparalleled in history. In reality, such efforts are commonplace, as we have seen in the areas of Medicare and Medicaid.

I also hope that the book will frame an area of inquiry that is underdeveloped yet necessary for the attainment of a much more comprehensive understanding of public policy in all domains within the U.S. constitutional system, and provide new direction for policy studies in the United States.

It should also be noted that while this book was in press, Donald Trump was elected president of the United States. While the book seeks to add some material on his presidency, it is impossible to capture the full extent to which the Trump administration will alter the policy drifts addressed here. Nonetheless, party changes to the White House will always have consequences on policy drifts, and this speaks to the core of this book.

There is no finality to the public policy process. It is ongoing and continuous, and even those policies believed to be settled and stable can change or drift in unexpected directions. But there is no fixed formula for predicting the durability of public policy, because unanticipated levers of change such as economic, political, ideological, or social forces can modify the status quo in public policy, ultimately leading to further policy shifts or drifts. Recent history reveals this to be the case.

For example, Americans privacy rights are guaranteed by the Fourth Amendment appeals court, representing one of the first declassifications and breakdowns of the Patriot Act. However, although Congress subsequently amended surveillance policy in response to that ruling, there are renewed concerns about the governments surveillance policies and its continued efforts to spy on Americans.

Another example can be seen in the 2007 U.S. Supreme Courts decision in Ledbetter v. Goodyear Tire and Rubber Company, which effectively altered public policy by making it more difficult for public- and private-sector employees to file pay discrimination complaints against their employers. The Court ruled that plaintiffs charging pay discrimination under Title VII of the Civil Rights Act of 1964 must file their lawsuit within 180 days of the actual occurrence of the discriminatory practice, notwithstanding the fact that those practices cannot always be established or uncovered within that time period. The decision was a decisive blow to efforts aimed at pay equity between women and men. In response to this ruling, President Obama and the 111th Congress joined forces to pass the Lilly Ledbetter Fair Pay Act, which resets the 180 days to after each discriminatory act occurs and allows for recovery of back pay up to two years prior to the complaint. This act, however, can be repealed or altered at any time.

A final example can be seen in President Obamas battle against an intransigent Congress on climate policy. Republicans in particular question or deny the science surrounding global warming, and have vociferously opposed policies to curb greenhouse gas emissions. essence of this book.