Intervention by the federal courts in regulatory policymaking has increased markedly, in both quantity and level of intrusiveness, over the last 40 years. Scholarly commentators have concluded that this level of intervention is not appropriate. This suggests a question: Why are the courts so involved in regulatory policymaking? This article answers that question by examining congressional motivation to increase the rights of interested parties to take their policy battles into court. By analyzing three sets of amendment to the Clean Air Act, I show that members of Congress strategically manipulate statutory rules governing the role of courts in regulatory policymaking to help their political supporters and to advance their own policy goals. Thus, a primary explanation of the increased role of the judiciary in regulatory policymaking is that this increase has served the goals of members of Congress.
References
1.
Congressional Quarterly Almanac. 1977. Washington: Congressional Quarterly, Inc.
2.
Congressional Quarterly Almanac. 1990. Washington: Congressional Quarterly, Inc.
Clayton, Cornell W.2002. “The Law of Politics: The Supply and Demand Sides of Judicial Policy-Making (Or, Why Be So Positive About the Judicialization of Politics?).”Law and Contemporary Problems65 (summer): 69-85.
5.
De Figueiredo, John M., and Emerson H. Tiller. 1996. “Congressional Control of the Courts: A Theoretical and Empirical Analysis of Expansion of the Federal Judiciary.”Journal of Law & Economics39(October): 435-462.
6.
Dodd, Lawrence C., and Richard L. Schott. 1979. Congress and the Administrative State. New York: Wiley.
7.
Epstein, David, and Sharyn O’Halloran. 1999. Delegating Powers: A Transaction-Cost Approach to Policymaking under Separate Powers. Cambridge, MA: Cambridge University Press.
8.
Ferejohn, John. 2002. “The Law of Politics: Judicializing Politics, Politicizing Law.”Law and Contemporary Problems65 (summer): 61-68.
9.
Fiorina, Morris. 1982. “Legislative Choice of Regulatory Forms.”Public Choice39: 33-61.
10.
Gillman, Howard. 2002. “How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875-1891.”American Political Science Review96: 511-524.
11.
Horowitz, Donald. 1977. The Courts and Social Policy. Washington, DC: The Brookings Institution.
12.
League of Conservation Voters National Legislative Scorecards. 1970 through 1998. On file with the author.
13.
McCubbins, Matthew, Roger Noll, and Barry Weingast. 1987. “Administrative Procedures as Instruments of Political Control.”Journal of Law, Economics and Organization (3): 243-243.
14.
McCubbins, Matthew, Roger Noll, and Barry Weingast. 1989. “Structure and Process, Politics and Policy: Administrative Arrangements and the Political Control of Agencies.”Virginia Law Review (75): 431-431.
15.
Melnick, R. Shep. 1983. Regulation and the Courts: The Case of the Clean Air Act. Washington, DC: The Brookings Institution.
16.
Moe, Terry M.1989. “The Politics of Bureaucratic Structure.” In John E. Chubb and Paul E. Peterson, eds., Can Government Govern. Washington, DC: The Brookings Institutioon.
17.
Pierce, Richard J. 11993. “Lujan v. Defenders of Wildlife: Standing as a Judicially Imposed Limit on Legislative Power.”Duke Law Journal42: 1170-1201.
18.
Rabkin, Jeremy. 1989. Judicial Compulsi Brookings Institution.ons: How Public Law Distorts Public Policy. New York: Basic Books.
19.
Redish, Martin. 1980. Federal Jurisdiction: Tensions in the Allocation of Judicial Power. Indianapolis, IN: Bobbs-Merril.
20.
Shapiro, Martin. 1968. The Supreme Court and Administrative Agencies. New York: Free Press of Glencoe.
21.
Shapiro, Martin. 1988. Who Guards the Guardians: Judicial Control of Administration. Athens: The University of Georgia Press.
22.
Shipan, Charles R.1997. Judicial Review as a Political Variable: Interest Groups, Congress and Communications Policy. Ann Arbor: University of Michigan Press.
23.
Shipan, Charles R.2000. “The Legislative Design of Judicial Review: A Formal Analysis.”Journal of Theoretical Politics12 (3): 269-304.
24.
Shipan, Charles R., and William Lowry. 2001. “Environmental Policy and Party Divergence in Congress.”Political Research Quarterly54 (June): 245-263.
25.
Stewart, Richard B.1975. “The Reformation of American Administrative Law.”Harvard Law Review88 (June): 1669-1814.
26.
Stidham, Ronald, Robert A. Carp, Donald R. Songer, and Donean Surratt. 1992. “The Impact of Major Structural Reform on Judicial Decisionmakinert: A Case Study of the U.S. Fifth Circuit.”Western Political Quarterly, 45 (1): 143-152.
27.
Sunstein, Cass R.1988. “Standing and the Privanization of Public Law.”Columbia Law Review88: 1432-1481.
28.
U.S. Senate. Committee on Environment and Public Works. 1993. A Legislative History of the Clean Air Act Amendments of 1990. (S. Prt. 103-38-18) Washington, DC: Government Printing Office.
29.
Weingast, Barry R., and Mark J. Moran. 1983. “Bureaucratic Discretion or Congressional Control? Regulatory Policy-making by the Federal Trade Commission.”Journal of Political Economy91 (51): 765-765.
30.
Gary Zuk, Deborah J. Barrow, and Gerard S. Gryski, producers, Auburn University. Ann Arbor, MI: Inter-university Consortium for Political and Social Research, distributor, 1997.
31.
Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation. 484 U.S. 49 (1987).
32.
Sierra Club v. Ruckelshaus, 344 F. Supp. 253 (D.C. Circ. 1972).
33.
United States v. Kaiser Steel Corp. No. 82-2623-IH (C.D. Cal. Jan. 26, 1984).
