Bending the Rules

Who sets the efficiency rules for the cars we drive, or decides whether a pharmacy can sell the morning-after pill? Most people would guess that lawmakers in Washington make these calls. Yet Congress and the president directly produce only a small share of American law. Some scholars estimate that over ninety percent comes from administrative rules written by federal agencies such as the Environmental Protection Agency and the Department of Health and Human Services. Those rules are drafted by appointed officials, not elected ones, who have their own policy aims and must work within a demanding, procedure-heavy rulemaking system that rewards some strategies over others.

Rachel Augustine Potter argues that rulemaking is far from a routine clerical task and is in fact a deeply political process. Because the United States divides power among branches, agency officials cannot simply carry out what they prefer. The president, Congress, and the courts can all intervene, frequently after pressure from organized interest groups. Potter shows that bureaucrats often respond by using their detailed command of procedure to shield their proposals from scrutiny and outside interference, a tactic she calls "procedural politicking."

The book follows a rule from the moment an agency begins developing it to the point where the action is finished. At each stage, Potter examines how bureaucrats use procedural tools to push back against Congress, the president, and the courts. Her analysis suggests that unelected officials exert substantial control over the direction of public policy in the United States.