During the Iran-Contra hearings in 1987, Secretary of State George Shultz was asked about the control his department
exercised over foreign policy. He replied, with unerring accuracy: "Nothing ever gets settled in this town. You have to keep
fighting, every inch of the way." His observation applies to this fine book by Shep Melnick, who examines three areas of
welfare policy: Aid to Families with Dependent Children (AFDC), education for the handicapped, and food stamps. Nothing is
ever settled for these programs. Issues bounce back and forth between Congress, the agencies, the courts, interest groups, and
academic studies. Melnick's book, elegantly written and incisive in analysis, provides a penetrating view into separation of
powers and domestic policy. Readers will come away enriched and highly appreciative.
After setting forth some basic concepts about legislative strategy, agency rulemaking, and statutory interpretation by the courts,
Melnick recounts the history of welfare reform in these three case studies. The stages of action by all three branches, with each
one checking and modifying the other, are described with admirable lucidity. Out of these cases studies come some
generalizations about court involvement. Federal judges have at their disposal "no generally accepted, authoritative methods for
interpreting statutes" (p. 6). Existing guidelines provide support for varying approaches. Melnick quotes Judge Harold
Levinson's aphorism that citing legislative history is akin to "looking over a crowd and picking out your friends" (p. 251), noting
that his observation fits the case studies in this
Another generalization is that judicial interpretation usually expands program benefits and costs and increases federal control
over state and local governments. That is not too surprising, giving the orientation and location of federal judges. Despite the
courts' profound influence on the welfare programs under scrutiny in this book, agency officials rather than judges "have borne
primary responsibility for turning general laws into specific program guidelines" (p. 238).
In interpreting statutes, courts can look at the plain text or add to it portions of the legislative history. Justice Antonin Scalia is a
well-known proponent of looking only at the statutory language and ignoring the committee reports and floor debate that
amplify congressional intent. On many occasions he has stated that legislative history is largely the product of congressional staff
and should not be given any weight for statutory construction. His analysis has been challenged by Judge Patricia Wald, a
former colleague on the D.C. Circuit. She claims that his "textualism" is inherently "executive- expanding" (p. 21).
Melnick does more than study the three branches and the constant pressures from interest groups. In one of many instructive
passages he refers to the impact of outside studies. At the very point when the three branches were struggling to reach some
kind of accord on welfare policy, the rug would be pulled out by the release of a study that undermined a cherished premise.
For example, the move to a guaranteed income policy suffered a "stunning setback" because of income maintenance
experiments in Seattle and Denver. The results indicated that income guarantees "significantly increased the rate of family
breakup, especially for racial minorities" (p. 117). Senator Daniel Patrick Moynihan, a strong supporter of a guaranteed
income, conceded that the new evidence "discredited fifteen years of social policies that I had been trying to press."
Melnick does a fine job of capturing the many subtleties of separation of powers. During the Reagan years, Congress attached
a rider to an appropriations bill to prevent Department of Education rules from taking effect. Although President Reagan vetoed
the bill, the department "saw it was fighting a losing battle and withdrew the proposed regulations" (p. 163). To make sure that
the department did not change its mind, Congress added language to the reauthorization of
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the Education of the Handicapped Act prohibiting the department from implementing rules that would lessen the protections
provided to handicapped children.
For those interested in "statutory reversals" (situations in which Congress passes new laws to reverse a statutory construction
by the courts), this book provides telling evidence of the frequency of these actions and the political motivations and steps that
are required. In SMITH V. ROBINSON (1984), the Supreme Court held that plaintiffs who prevail in certain handicapped
children cases cannot collect attorneys' fees. Both Houses of Congress unanimously passed legislation to authorize courts to
award attorneys' fees to prevailing parties. A few years later, in MUTH V. DELMUTH (1989), the Court ruled that in most
instances federal courts cannot order state and local schools to reimburse parents for educational expenses previously incurred.
Such a result would be permissible only if Congress made its intention "unmistakably clear in the language of the statute."
Congress did precisely that within a year, overturning the Court. Many fascinating examples of statutory reversals are included
in this book.
Melnick uses his data and observations to reject a central finding in Gerald Rosenberg's THE HOLLOW HOPE (1991), which
challenges the conventional view that courts are major players in shaping social policy. Rosenberg argued that U.S. courts "can
ALMOST NEVER be effective producers of significant social change" (p. 338). It is therefore a mistake for reformers to
litigate their causes, depending on "an institution that is constrained from helping them" (p. 236) But Melnick points out that legal
reformers are more politically astute than Rosenberg realizes. They recognize the necessity of combining litigation with "other
forms of lobbying and to build broad political alliances," using litigation to "force, delay, and focus legislative and administrative
action" (p. 237).
In these separation of power dynamics, Melnick draws some interesting conclusions. His case studies provide no support for a
"runaway" bureaucracy. Federal agencies did not violate a clear congressional directive or attempt to sabotage statutory
policies. At most, administrators had to interpret ambiguous phrases or gaps in a statute. If they misjudged, Congress would
have the final word, and agencies knew that. Ironically, Melnick says that the most obvious distortion of both statutory language
and legislative history came from the courts, not from the agencies. When Congress managed to write clear, detailed legislation,
"administrators almost always complied" and litigation had little impact. The importance of litigation rose not because
administrators acted lawlessly but because executive officials and judges were forced to read "between the lines of statutes
produced by fractious legislators" (pp. 240-241).
These three case studies demonstrate the range and depth of the dialogue that goes on between the three branches of
government. Early in the book, Melnick says that "while it takes a constitutional amendment to overturn a court's interpretation
of the Bill of Rights or the Fourteenth Amendment, Congress can reverse decisions based on statutory interpretation merely by
passing new laws" (p. 6). This formulation squares with traditional teachings from law schools, but in fact Congress is constantly
in the business of overturning judicial decisions involving the Bill of Rights and the Fourteenth Amendment. Legislative
prerogatives over the latter realm is evident in Section 5 of the Fourteenth Amendment, which gives Congress the "power to
enforce, by appropriate legislation, the provisions of this article." When Congress speaks on the Fourteenth Amendment, courts
listen. Judges are highly deferential to Congress on Fourteenth Amendment issues
Congress is also active in pushing its interpretation of the Bill of Rights. In 1987 it reversed the Supreme Court's decision in
GOLDMAN V. WEINBERGER (1986), which sustained an Air Force regulation prohibiting the wearing of a yarmulke.
Within a year Congress had enacted legislation telling the Air Force to change the regulation to give greater freedom to religious
liberties. In 1993, Congress passed the Religious Freedom Restoration Act, directly challenging the Court's decision in
EMPLOYMENT DIVISION V. SMITH.
Page 63 follows: Congress decided that the Court's test in SMITH gave inadequate protection to religious minorities. Many
other examples could be cited where Congress passes legislation to give greater protection to the Bill of Rights. At best, the
Court establishes a floor for individual rights. Congress can pass legislation that goes above those minimum levels. In this sense,
Melnick's book is an excellent exploration of all disputes, statutory and constitutional, in the American system of government.
Gerald N. Rosenberg (1991), THE HOLLOW HOPE: CAN COURTS BRING
SOCIAL CHANGE Chicago: University of Chicago Press.
EMPLOYMENT DIVISION V. SMITH, 494 U.S. 872 (1990)
GOLDMAN V. WEINBERGER, 475 U.S. (1986)
DELLMUTH V. MUTH, 491 U.S. 223 (1989)
SMITH V. ROBINSON, 468 U.S. 992 (1984)