1.
Legislative Process
Topics:
A. The legislative process (125-42)
B. The Motor Vehicle Safety Act of 1966 (142-66)
C. The structure of a modern statute (166-76, 179-83)
D. Legislative drafting (200-06,211-20)
Difference between Leg Reg & judicial legislation: Leg Reg forward-looking
What rules govern?
● Article 1
○ Core requirements
○ Most durable legislative procedural requirements
○ Bicameralism
○ Presentment
○ Art. 1 § 5
■ Each house may determine rules of proceedings
■ Grant authority to determine procedural requirements
● House rules - 45 pages - adopts new rules every 2 years
● Senate manual - 1300 pages - because standing body has standing rules
■ Not much legal recourse for violation of House/Senate rules
^^^^^
Hand = opportunity for someone to kill a bill; intended by framers so legislation is difficult, not easy, to pass
Origination clause (Art. 1) - tax and budget bills must originate in House so people can be a check (House is a more responsive
chamber)
The major phases of legislation
1. Introduction & referral
2. Committee consideration
3. Calendars
4. Obtaining consideration
5. Debate & amendment
6. Budget & engrossment
7. Conference
8. President
1. Introduction and Referral
1/5
1. Legislative Process
House Senate
Must initiate tax, revenue bills
Bill (H.R.) Bill (S.)
Joint Resolution (H.J. Res) Joint Resolution (S.J. Res.)
Concurrent Resolution (H. Con. Res.) Concurrent Resolution (S. Con. Res.)
Simple Resolution (H. Res.) Simple Resolution (S. Res.)
● A member of Congress or Senate must introduce (put their name on) legislation
● Joint res
○ Contains preamble (typically)
○ Difference from bill important for textualist
● Concurrent res
○ Mostly procedural
○ Concurrent budget resolution is most common
○ Impacts operations on both houses
● Simple res
○ Inward-looking 1 house
○ Only needs 1 house’s approval
2. Committee Consideration
House Senate
Sponsor(s) introduce Sponsor(s) introduce
Speaker refers to committee Presiding Officer refers
20 standing committees 16 standing committees
Hearings Hearings
Markup Markup
Vote Vote
Report Report
procedural maneuvers to go over committee chair’s ● More of a free-for-all
decision ● Can offer “non-germane” (irrelevant to subject
● Civil Rights Act 1964 - majority threatened to under consideration) amendment
go over committee chair’s head
● OR majority of House can take it out of
committee
● If bill doesn’t have obvious committee, look at committee chair’s precedent (which can be contested because
committees determine whether bill hads real chance of passage)
● Same dynamic all over again for subcommittees
● “Send to a friendly/hostile committee”
● Markup process - amendments, detailed debates, discussions, revise
● Vote
○ Report favorably
○ Report unfavorably
○ Report without recommendation
○ Table (usually means killing)
● 10% of bills make it out of committee process
● Need simple majority to report it out (if quorum)
● Committee staff prepares committee report §-by-§ analysis
○ Most probative, relied-upon in terms of statutory interpretation / implementation
○ Reflects most authoritative understanding
2/5
1. Legislative Process
○ Can file minority reports - state objections and what bill will actually do (included in committee reports)
3. Calendars
House Senate
Union General Orders, Calendar of Business
House Executive
Private
Consent
Discharge
Union and House - most important when bills assigned Executive - responsible for things only pertaining to
Senate (e.g., confirmation hearings, treaty ratification
● Can move to suspend rules to get bill out of calendar system and immediately considered, but must get ⅔ majority
● *Presiding officers control committee assignments and calendars*
4. Obtaining Consideration
House Senate
Unanimous consent (rare), or suspension of rules Unanimous consent
Rules Committee Filibusters on motions to consider
Motion to discharge Anonymous holds
Motion to suspend
Calendar Wednesday
House Rules committee establishes rules on how bills Anonymous hold is reason for fewer filibusters now
debated/considered Threat of filibuster is enough to kill legislation
- Creates relatively straightforward process
5. Debate & amendment
House Senate
Committee of the Whole Filibuster (endless debate)
Moving “the previous question” Cloture
Three methods of voting (60 votes)
Committee of the whole - can use quorum of 100 reps as Free-for-all
more efficient body, speaker steps down and committee
chair takes over
Amend/debate bill
Push to House to consider, usually immediate vote
3 methods of voting
- Voice
- yays/nays
- Electronic recording
6. Budget & engrossment
House & Senate
Concurrent budget resolution sets rules on revenues, spending - due 4/15
Budget reconciliation process limits amendments and debate in Senate
Byrd rule - BRP/BRB - bill must somehow involve revenue
3/5
1. Legislative Process
Engrossment creates official copy with all amendments
Senate - BRP not subject to filibuster, only need 51 (VP can break ties
Now Congress uses BRP to pass controversial bills (e.g., Affordable Care Act)
7. Conference
House & Senate
Reconciles non-identical bills from House and Senate
Speaker and Presiding Officer of Senate select conferees
Or typically, chair and ranking minority member from committees select them
Produces a conference report
Conference committee
- Select group chosen by party leaders, can only consider provisions that are different between 2 versions
- Produces report - next most probative piece of legislative history
8. President
House & Senate
Presentment
1. Sign
2. Veto
3. Do nothing (10 days)
4. Pocket veto
Two-thirds override
Art. 1 § 1 requires presentment to president.
A bill becomes law
Fed. Reg.
● Official daily digest of federal government (includes legislative histories - research guides available)
U.S. Statutes at Large - includes legislative histories - research guides available
U.S.C.
● Updated once/year
● Organized into 50 titles in alphabetical order
Motor Safety Act of 1966
● First auto safety hearings in 1956
● Not unusual timeline for major reform legislation
● Congress generally reactive, rather than proactive
○ E.g., Nader’s Unsafe at Any Speed
○ E.g., Sinclair’s The Jungle
○ E.g., response to 9/11
4/5
1. Legislative Process
What happened after the bill passed?
● Implementation
● Commerce secty has new authorities
● Corporations - what to do? Deadines?
Examining the text:
● How does 110 differ from 105? Targeted at different parties - targeted at different parties, both mention courts
● Provides for judicial review - who, where, time frame
● Audience and what is logic behind it?
● Agency creation (115)
● Accountability (120)
Committee Report
● Why can’t market sort this?
● Can committee establish performance standards with no thought to design - tricky question about scope of agency’s
jurisdiction
Common elements
● Title
● Enacting clause
● Short title
● Purpose, preamble, findings
● Definitions - establish scope of statute
● Principal operative provisions - who is required / prohibited to do what? And what’s the logic behind it?
○ E.g., “it’s illegal to make a contract that places a restraint on trade and commerce
■ To understand “restraint of trade” consult (combination at court’s discretion) legislative history, case
law, and DOJ actions
● Subsidiary operative provisions (exceptions and provisos)
● Implementation
○ E.g., if anyone does illegal act, then they are guilty of felony and upon conviction…
● Repeals, amendments to preexisting law
● Preemption
● Savings clause
● Timing clauses
*DOJ enforces, court interprets
E.g., Mann Act
● Operative provision: filing requirement for anyone who harbors, etc. an immigrant girl
● Effect on other fed laws: when you incriminate yourself, government can’t use that information to prosecute you for
info truthfully given
● Most notorious prosecutions
○ Jack Johnson for affair with white prostitute
○ Charlie Chaplin / Joan Berry - celebrity trial of century
E.g., Truth in lending act
● Defn of creditor
○ Defines scope
○ Includes some operative effect - requires creditors to name themselves on credit cards
E.g., Clean Air Act
● Operative & implementation provision
E.g., Telephone Consumer Protection Act
● Implementation provision with some operative effect
○ Do not call list
○ Robokiller App
E.g., Dodd-Frank Act
● Implementation
● Response to Elizabeth Warren’s art. - Unsafe at Any Rate
5/5
