BINDURA UNIVERSITY OF SCIENCE EDUCATION FACULTY OF COMMERCE

NAMES : SVONDO TAKESURE B230800B

MPOFU MARGARET B232810B

PROGRAMME : BBA. PSS

COURSE CODE : PS 203

COURSE : PUBLIC POLICY AND POLICY ANALYSIS

LECTURER : MRS GWANZURA S.

ASSIGNMENT : 1 (GROUP)

DUE DATE : 04/09/2024

MARK OBTAINED………….......................................

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QUESTION
a. Present arguments for and against the courts as policy making forums.

Courts play a pivotal role in any given society. Their main functions being to adjudicate over
disputes, interpret laws and ensuring justice prevails. Often at times the judiciary has found
itself at the intersection of law and policy, particularly in constitutional democracies. The
decisions they make have helped shape social, economic, and political policies, leading to
debates about their role as policy-making forums. This essay examines the arguments for and
against the notion that courts serve as policy-making entities, drawing on legal theory,
historical examples, and contemporary implications. Prior to the debate, it is important to stress
the relationship between law and policy.

According to Kay (1973), all law is policy and thus every application of law is an
implementation of policy. This essentially means that as courts adjudicate on matters, they will
be implementing policy. Kammerer and Estrella-Luna (2020) posits that law and public
policy are fundamentally related concepts. They emphasised that in America rarely any
political policies arise that is not resolved, sooner or later, into a judicial question. The above
assertion underscores the symbiotic relationship that exists between the law and public policy.
Most at times policies end up being debated in the courts of law.

Courts have the power to review the acts of the legislature and the executive branch and to
strike them down if the courts find them to be unconstitutional. This power is what is termed
judicial review. This power enables courts to shape policy by interpreting constitutional rights
and principles. In America, the courts, notably the national and state appellate courts, have
often greatly affected the nature and content of public policy by exercising the powers of
judicial review and statutory interpretation in cases brought before them (Anderson, 2011:57).
These powers of review can be traced back to 1803 where they were exercised in the case of
Marbury v. Madison, a landmark case that established the principle that courts can invalidate
legislation that conflicts with the Constitution. These powers have been used by the courts in
several cases to shape policy. For instance, in Brown v. Board of Education 1954, the United
States of America Supreme Court's decision to declare racial segregation unconstitutional
fundamentally altered the landscape of public education and civil rights in America. Anderson
supra further argues that though judges claim to be neutral, they are deeply and willingly
involved in policy making and thus labels them as Judicial Activists.
As alluded earlier, the prerogative role of law interpretation lies with the courts. At most times
superior courts make judicial pronouncements which are binding and which invariably
determines the policy making process. Courts are approached to interpret and decide the
meaning of legislative provisions that often generally are stated and permit conflicting
interpretations. When a court accepts one interpretation rather than another, it gives effect to
the policy preference of the winning party. In Zimbabwe for instance, several court
pronouncements have become law which affected persons or institutions must obey. The
interpretation of laws by the courts becomes policy. Though any court judgement by the lower
court can be appealed, the apex court determines some cases which the final judicial
pronouncement has become a policy statement in the country.

Courts often serve to protect the rights of minorities against the tyranny of the majority. In
cases involving civil rights and liberties, courts have acted as necessary checkers on legislative
and executive powers. For example, in Roe v. Wade (1973), the Supreme Court of America
declared unconstitutional a Texas statute prohibiting abortion as a violation of the privacy
protected by the First and Fourteenth Amendments. The right to an abortion was held to be a
fundamental right, one that could not be readily regulated or limited by governments. The
majority went on to specify the standards future abortion laws would have to meet to comply
with the Constitution. By so doing, the Supreme Court recognized a woman's right to choose,
thereby influencing reproductive health policy across the United States as well as how policies
related to the issue of abortion should be crafted. In 1989, the Court, whom now composed of
three new judges, partially overruled Roe v. Wade supra when they presided over the case of
Webster v. Reproductive Health Services. Here, the Court upheld a Missouri state law that
prohibited the performance of abortions in public hospitals and clinics and the use of state
funds for counselling women about abortion. Also, testing was required before performing an
abortion after twenty weeks to determine whether the foetus was viable outside the womb. This
decision, by giving state legislatures more authority to regulate abortions, made the abortion
issue even more contentious and thrust it back into the legislative arena across America. Thus
these activities by the judges underscore how courts can enact policy changes that reflect
evolving social norms and values.

Sometimes the failure or refusal of the legislative branch to act on some problems has often led
the courts to be involved in policy formulation. Legislatures may fail to address pressing social
issues due to political gridlock or lack of consensus. Where this occurs, courts are bound to fill
these gaps by creating legal precedents that guide public policy. The case of Obergefell v.
Hodges (2015), which legalized same-sex marriage nationwide, demonstrates how courts can
advance social change when legislative bodies are unable or unwilling to do so. In this case,
James Obergefell and John Arthur, a same sex couple had married in 2013 and when Arthur
was diagnosed with a lethal disease wanted Obergefell to be listed as the surviving spouse on
his death certificate. However the State of Ohio, in which both lived, had laws that prohibited
same sex marriage. Arthur eventually passed away in 2013 and Obergefell was not listed on the
death certificate as the surviving spouse. Obergerfell sued the Ohio Department of Health and
succeeded in the U.S Court of the Southern District of Ohio. However this decision was later to
be reversed by the U.S Court of Appeals, upholding the Ohio’s ban. Obergefell too the matter
to the Supreme court of America which decided that the Fourteenth Amendment’s due process
prohibits states from denying same sex marriages as this violets their rights to marry.

Judicial activism, according to Birkland (2015) describes how a judge approaches judicial
review, where judicial activists abandon their responsibility to interpret the constitution and
instead decide cases to advance their preferred policies. He argues that courts overstep their
boundaries when they engage in policy-making. Woodrow Wilson as cited in Kammerer and
Estrella-Luna (2020) argued that Congress makes public policy and the bureaucracy simply
carries out that policy without exercising discretion. In making this argument, Wilson canvased
that the duty of the courts is to simply engage itself in the neutral discovery of legal principles
and not to legislate. One of the critics to the concept of judicial activism, Cochran (2001)
raises concerns about the accountability of judges and the potential for arbitrary decision-
making as they become judicial activists. In support of this assertion, Runnesh (2018)
recognized the significant impact of courts on public policy-making and advocates for a careful
consideration of the judiciary's role in ensuring justice while maintaining respect for the
democratic process. The manner in which judges are appointed also has a direct bearing on the
way they act/ behave in courts. Dye (2010) posits that the selection of judges mostly hinges on
their party affiliation and their policy preferences and values hence once in office their values
and preferences greatly affect their decisions. An example is the Zimbabwean context where
the President has the final say in the appointment of judges into office. It therefore suffices to
say whatever decisions they make will always tend to favour the government. An example is
the manner in which the Zimbabwean Main opposition party decided to abstain from
challenging the Presidential results of the 2023 elections on the pretext that the courts were
biased and thus there was no chance of a “servant ruling against his master”.

The principle of separation of powers underscores the distinct functions of the legislative,
executive, and judicial branches. It canvases that each arm of a government has the prerogative
duty of conducting its functions accorded to them by the Constitution. As a result when courts
engage in policy-making, they encroach upon the responsibilities of elected legislators. This
encroachment can lead to an imbalance of power and undermine the democratic process. For
instance, some argue that the Supreme Court's ruling in Citizens United v. FEC (2010)
effectively allowed for unchecked political spending, fundamentally altering the landscape of
campaign finance without legislative input.

Another argument against courts as policy-making entities is the potential for inconsistency and
unpredictability in legal interpretations. Court decisions can vary significantly based on the
composition of the bench, leading to fluctuations in policy outcomes. This inconsistency can
create confusion and uncertainty in the law, as demonstrated by the oscillating rulings on issues
like healthcare and immigration policy, where different administrations have sought to overturn
previous judicial decisions.

Proponents of legal formalism argue that courts should strictly interpret laws as written,
avoiding subjective interpretations that could lead to policy-making. This perspective
emphasizes the importance of the rule of law, suggesting that allowing courts to engage in
policy-making undermines the predictability and stability that legal systems require. The focus,
they argue, should be on applying existing laws rather than creating new policies through
judicial interpretation.

In conclusion, the debate over the role of courts as policy-making forums is complex and
multifaceted. Proponents argue that courts are essential in safeguarding rights, filling legislative
gaps, and adapting to societal changes. Conversely, critics warn of the dangers of judicial
overreach, lack of accountability, and the undermining of the democratic process. Ultimately,
the judiciary's role in public policy remains a contentious topic, necessitating a careful balance
between judicial interpretation and legislative authority. As society continues to evolve, the
courts will inevitably confront new challenges that will test their boundaries as policy-making
entities.
REFERENCES

Books
1. Anderson, J. E. (2011) Public Policy and Policy Making: An Introduction; 7th edition;
Boston, MA: Cengage Learning.
2. Birkland, T.A. (2015) An Introduction to the Policy Process, Theories, Concepts and
Models of Public Policy Making; 3rd Edition; Routledge; New York.
3. Dye, T. R. (2010) Understanding Public Policy; 14th edition; Upper Saddle River; NJ:
Pearson.
4. Runnesh, S. (2018) Social Justice and Public Policy: A Holistic Approach; Los Angeles,
California; Sage Publications.

Journals
1. Kammerer, E.A and Estrella-Luna, N. (2020) Law and Public Policy: A gap between
Theory and Teachin? American Political Science Association;
https://doi.org//1011017//S1049096519002178
2. Kay, R. (1973) Judicial Policy-making and the Perculiar Function of Law; Havard Law
Review, 86 (4), pp723-745.

Case Laws
1. Brown v. Board of Education, 347 U.S. 483 (1954).
2. Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).
3. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
4. Obergefell v. Hodges, 576 U.S. 644 (2015).
5. Roe v. Wade, 410 U.S. 113 (1973).
 b. Critique the role of the executive in the policy making process.

The executive branch of government plays a pivotal role in the policy-making process,
influencing the formulation, implementation, and evaluation of public policies. Comprised of
the head of state, government officials, and various administrative agencies, the executive is
tasked with translating legislative mandates into actionable policies. However, this role is not
without controversy. Critics argue that the executive can overreach its authority, leading to
issues of accountability, transparency, and the potential erosion of democratic principles. This
essay critically examines the role of the executive in policy-making, drawing on scholarly
perspectives, legal cases, and practical examples to illuminate the complexities involved and a
summary of the tabled facts will be drawn at the end.

The executive branch is often at the forefront of policy formulation. It initiates the policy
agenda, identifies key issues, and proposes solutions. In terms of Section 88 of the
Constitution of Zimbabwe Amendment (No. 20) Act 2013, the executive authority of
Zimbabwe vests in the President who exercises it through the Cabinet. Members of the cabinet
are nominated by the president from members of the legislature. The President makes law in
some instances, thereby treads in the domain of the legislature. For instance, on the 27 th of
September 2017, the President of Zimbabwe gazetted a Statutory Instrument 122A of 2017 –
Exchange Control (Amendment) Regulations Number 5 which made money changing a
crime and empowered the police to arrest money changers and seize whatever currency
involved. This was an urgent response to foreign currency shortages in the formal market
which triggered alarming price increases and fuel shortage in the country.

Again, this occurs when there is public emergency like war or natural disaster, the president is
also empowered by the constitution to make a proclamation in the Gazette to declare a state of
public emergency in the whole or part of Zimbabwe. Scholars such as Dye (2010) emphasize
that the executive's ability to set the agenda is crucial in shaping public discourse and directing
legislative priorities. For instance, in the United States, the President's State of the Union
address serves as a platform to outline policy priorities, influencing both public opinion and
congressional action. Hence, from this perspective, it is evident that the executive branch often
holds the steering wheel in the formulation of policies

Once policies are formulated, it is the executive's responsibility to implement them. This
involves the execution of laws passed by the legislature and the administration of public
programs. The executive branch, through its various agencies, translates legislative intent into
operational guidelines. For example, the Environmental Protection Agency (EPA) in the U.S.
is tasked with enforcing environmental regulations established by Congress, the same as the
Environmental Management Agency in Zimbabwe. However, legal challenges can arise
regarding the extent of executive power in implementation. The case of Massachusetts v.
Environmental Protection Agency (2007) showcases this tension, as the Supreme Court ruled
that the EPA had the authority to regulate greenhouse gases under the Clean Air Act,
reinforcing the executive's role in environmental policy.

The executive also engages in policy evaluation, assessing the effectiveness of implemented
policies and making necessary adjustments. This aspect of the executive's role is often
overlooked but is critical for ensuring accountability and responsiveness. Anderson (2014)
agrees that the executive's ability to evaluate and revise policies is essential for effective
governance. For example, the evaluation of healthcare reforms under the Affordable Care Act
(ACA) of the United States signed into law by the president Barack Obama in 2010, which is
the executive branch, has led to ongoing adjustments and improvements in policy
implementation. The healthcare aimed at increasing healthcare accessibility, affordability and
quality for Americans. Its impact and influence can be seen in healthcare reform efforts
globally.

Nonetheless, though the executive branch plays a crucial role in policy-making, its dominance
can have negative consequences for democratic governance. Different scholars have long
critiqued the executive role, citing concerns about accountability, power imbalance and
ineffective policy decisions. One of the primary critiques of the executive's role in policy-
making is the potential for overreach. Critiques argue that when executives by-pass legislative
processes or use executive orders excessively, they undermine the principles of checks and
balances fundamental to democratic governance. The case of United States v. Nixon (1974)
illustrates this tension, as the Supreme Court ruled that President Nixon had to comply with a
subpoena during the Watergate scandal, reaffirming the importance of accountability in the
executive branch. Again, drawing closer home, In Zimbabwe, the government has faced
criticism for using emergency powers to suppress dissent. The enforcement of the
Maintenance of Peace and Order Act (MOPA) has been used to restrict protests and limit
freedoms. Critics argue that the executive has overstepped its authority by using these laws to
silence opposition and curtail civil liberties without proper legislative oversight.
Another concern is the lack of transparency in executive decision-making. The complex nature
of policy formulation within the executive branch can lead to decisions being made behind
closed doors, reducing public scrutiny. Scholars like Lindblom (1959) argue that this
impenetrability can hinder democratic participation and lead to policies that do not reflect the
will of the people. He further noted that the executive's reliance on "muddling through" can
lead to incrementalism, where policies are made in small, piecemeal steps without considering
the broader implications. This approach may not address the root causes of policy problems and
can result in ineffective solutions. For example, the handling of the COVID-19 pandemic in
many countries, where executive decisions regarding lockdowns and health measures were
often made without extensive public consultation, exemplifies this issue.

The executive branch is also susceptible to the influence of special interest groups and
lobbyists, which can twist policy outcomes in favor of particular agendas. This phenomenon
raises questions about representation and equity in the policy-making process. For example, the
passage of the Tax Cuts and Jobs Act in the U.S. in 2017 has been criticized for benefiting
wealthy individuals and corporations, reflecting the influence of powerful lobbying efforts on
executive policy priorities. David Easton (1965) warned that the executive's dominance can
lead to a "power elite" that undermines democratic accountability. When the executive branch
has too much control over policy-making, it can marginalize other branches of government and
ignore the needs and preferences of citizens. More so, renowned scholars like Dye (1972)
similarly argue that the executive's control over the policy agenda can result in "policy
imperialism," where one branch of government dominates the others. This can lead to a lack of
representation for diverse interests and perspectives.

Conclusively, this write up has reflected that role of the executive in the policy-making process
is multifaceted and critical to governance. While the executive branch effectively formulates,
implements, and evaluates policies, its actions are often scrutinized for potential overreach,
lack of transparency, and susceptibility to special interests. Understanding the complexities of
the executive's role is essential for fostering accountability and ensuring that public policies
reflect the democratic ideals of representation and equity. As society continues to evolve, the
balance of power among the branches of government remains a vital discussion, necessitating
ongoing evaluation of the executive's influence in shaping public policy. While the executive
can act decisively, its actions must be balanced by accountability mechanisms to prevent
overreach and ensure that policies reflect the will of the people.
REFERENCES

Books
1. Anderson, J. E. (2014). Public Policymaking: An Introduction (8th ed.). Boston, MA:
Cengage Learning.
2. Dye, T. R. (1972) Understanding Public Policy (2nd ed), Eaglewood Cliffs, NJ. Prentice
Hall
3. Dye, T. R. (2010). Understanding Public Policy (14th ed.). Upper Saddle River, NJ:
Pearson.
4. Easton, D. (1965) A Systems Analysis of Political Life. New York. John Wiley & Sons.
5. Lindblom, C. E. (1959). "The Science of 'Muddling Through'." Public Administration
Review, 19(2), 79-88.

Statutes
1. Constitution of Zimbabwe Amendment (No. 20) Act 2013
2. Maintenance of Peace and Order Act
3. Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007).
4. Statutory Instrument 122A 2017
5. Tax Cuts and Jobs Act 2017

Case Laws
1. United States v. Nixon, 418 U.S. 683 (1974).