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The Power of Procedure

The Power of Procedure

(p.1) 1 The Power of Procedure
Bending the Rules
Rachel Augustine Potter
University of Chicago Press

This introductory chapter acquaints the reader with notice-and-comment rulemaking, the process by which new regulations are created. Rather than being a mundane administrative activity, this book argues that rulemaking is a critical avenue by which important public policy is made in the United States. And unelected bureaucrats have both the motive and the opportunity to shape how the rulemaking process progresses. However, because of the important policy consequences associated with agency rulemaking it is an activity that members of Congress, the president, and the courts pay close attention to, and it can become the source of conflict between agencies and these political overseers. The book’s core theoretical argument is that bureaucrats strategically manipulate procedures in order to ensure that their preferred policies go on to become binding law. This behavior, called procedural politicking, involves managed the procedures involved in rulemaking in ways that insulate the rule—and the agency—from political attacks. This strategy is particularly effective because procedures appear innocuous to outsiders; some procedural choice must be made or the process cannot continue. This chapter explains the political aspects of rulemaking and outlines the argument about procedural politicking.

Keywords:   notice and comment rulemaking, procedural politicking, bureaucrat, policy, Congress, president, courts

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