Policy delinking: How Policymakers Protect Controversial Policies in Court

Policymakers prefer to avoid conflicts they expect to lose, but many policies attract pushback from opposing forces in court. Using regulations that indirectly achieve controversial aims, policymakers can hide controversial policy intentions and effects in order to reduce the risk of successful legal challenge in areas of hot-button constitutional contestation. Deploying two original databases of laws and judicial decisions on US states’ abortion regulation, 1973-2021, and gun control policies, 1939-2021, I show how policymakers strategically ‘delink’ controversial intentions, policies and effects to avoid legal defeats. Judgements about the constitutionality of morality policies often hinge upon the question of whether deliberate policymaker choices can be linked to constitutionally-suspect downstream consequences. Programs are more likely to pass and survive if governments can plausibly deny their role in producing controversial policy effects and feedbacks.

Speaker:

Dr Ursula Hackett (Royal Holloway - University of London) is Senior Lecturer in Politics and Research & Knowledge Exchange Lead for the Department of Politics and International Relations at Royal Holloway, University of London. Until August 2019 she held a British Academy Postdoctoral Research Fellowship on the politics of vouchers: programmes that transform the state by delegating responsibility for core policy functions to private actors. Her research focuses on American Political Development (APD), public policy, federalism, education, and religion and politics. More about Dr Hackett here.