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St. Johns University School of Law
Krishnakumar, Anita S.

Legislation Outline

I. Introduction / Models of Legislative Process

2 Questions you always have to ask:
Whether the normative policy or empirical data assumption is underlying the statute or the judge’s approach to the statute?

Should the branch (legislative/executive/judicial) of govt that’s making the particular decision make that decision?

How a federal bill becomes law (simplified overview)

House of representatives

Drafting of Bill of Resolution (e.g., by legislative staff, government agency, interest group, academic)

Introduction of bill by member (revenue bills originate in House, see U.S. Const., Art. I § 7, cl. 1; customarily, appropriations bills also)

Referral to Standing Committee

Committee Action
Can be referred to subcommittee
Hearings held on major bills
Committee resolution:
take no action
or amend and report

Major Calendars
Union (appropriation and revenue)
House (public)
Discharge (extract bills from committee)

Rules Committee (major bills) (closed rules possible but generally mod. open or open rules)

Floor Action (passage or defeat)

If passed


Referred to standing committee

Committee Action
Can be referred to subcommittee
Hearings held on major bills
Committee resolution:
take no action
or amend and report

Floor action (similar to House, except that there is filibuster option in Senate; overriding filibuster requires 60 votes)

Conference Committee (if House and Senate pass differing versions, a conference committee can be created with members from each house; each house must agree to the conference report)

Bill signed by Speaker and Vice President

Presentment to President (may sign, veto, or permit bill to become law without his/her signature; also possibility of “pocket veto” after adjournment)

the statutes don’t write themselves – they are the product of a lot of political compromise
how is legislative history important in statutory interpretation?

Omnibus legislation – instead of passing one law at a time, many laws are bundled together into one bill (they may or may not related to one another)

Civil Rights Act of 1964

The role of each player in the passage of Civil Rights Act of 1964
president has a lot of agenda setting power institutionally

biggest advantage in pushing Civil Rights Act: introducing the legislation to show a commitment to civil rights (good publicity for himself)
JFK doesn’t really want a very strong civil rights act

first thing he did was public campaign, focusing a lot on clergy, for various reasons

In the House of Representatives:
Manny Celler –
house representative; chair of house judiciary committee
very popular guy, will be reelected anyways. So he could act like a trustee

A Republican – wants some credit for himself and his party in the passage of CRA

McCulloch –
Chair of sub-committee number 5
Celler made a strategic decision to send the legislation to sub-committee number 5,
In past, civil rights legislation watered-down in Senate after they left the House.

Note nobody voting for his/her policy preference (they are voting strategically)

What this have to say about using legislative history for interpretation of statutes?

Judge Smith –
Chair of Rules Committee
After the bill passed the judicial committee, it went to rules committee,

The day after the bill passed judicial committee, JFK was killed.

Smith hates civil rights legislation (wants to kill it or take all the teeth out of it)
When the bill gets to the floor, Judge Smith offered an amendment, adding “sex”

why didn’t Smith offer Amendment when the bill was in Rules Committee stage, but waited until the Bill goes to the House floor?
because had he offered the Amendment in Rules Committee,
would have been voted out by Committee members

What does that mean to using legislative history when interpreting statutes?

Knowing how Civil Rights Act was passed, should we interpret it narrowly or broadly?
Is there a leg intent? There were many different motivations – whose intent governs?

Griggs v. Duke Power Company, 1970
Before 1955, the company rule was that black employees cannot be promoted

After 1955, a high school diploma or passing a test is required for promotion

Lawsuit brought by 13 out of 14 African American employees
-4 plaintiffs were hired after 1955, 6 were hired before 1955

4th Cir. – HS diploma requirement ok as long as applied equally to both black and white

statutory provision § 703(h) of Title VII:
…nor shall it be an unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability test…
you can’t just make up any test – has to be related the ability to perform the job

Congress actually talked about this very thing – some people raised concern that Title VII might interfere with employers’ ability to test employees, & didn’t want EEOC to tie the employers so much à therefore, all this statute is about is prohibiting intentional discrimination, not a prohibition against general intelligence testing

EEOC made determination so court should defer to it, since not unreasonable

Ultimately, the Supreme Court bought into the dissent’s opinion

I. How much should the legislative history influence statutory interpretation?
This statute might not become law if JFK wasn’t assassinated
This is public interest (rather than special interest) statute, which is very hard to be enacted – we should interpret it broadly?
II. What about legislative intent? There was no single legislative intent
III. What about floor speeches? (That were probably made to an empty floor)
there are many different things going on at the same time in Congress. Even the most diligent Congressman cannot keep track of what’s going on the floor all the time.
IV. The role of compromise during legislative process
V. What about sex discrimination here? Should court ignore this provision, b/c Smith proposed the Amendment intending it to kill bill, but didn’t want equality for women.
VI. Should the court look at the statute as a contract that should be construed narrowly against those who wanted it pass
Contract law approach – looks at a statute as a deal
VII. Should we interpret the statute to fulfill the public policy purpose of the statute?
(Justice Breyer’s approach)
VIII. Should CVA be treated as static embodiment of leg intent at time of enactment, or should statutory interpretation evolve in accordance w/ societal changes?
(Estridge approach)

a. Overview of Models of Legislative Process (& app of models to CRA case study)

rganized opposition b/c of the free rider problem. The benefit to an individual of having the policy changed is simply too small.

Quadrant IV (interest group politics)
Concentrated benefits/concentrated costs
Results in continuous organized conflict. A prime example is the NLRB and conflicts between labor and management

Quadrant I best described as majoritarian politics – little organized activities on either size, but some large groups of citizens will weigh in on both sides
Quadrant II fits model of entrepreneurial politics – organized interests will form to derail the legislation. Support is likely only if a policy entrepreneur is willing to push the proposal, rouse the inattentive public, and maybe take initiative in forming citizen groups.
Quadrant III – client politics – consensual interests group activity, logrolling, non-zero sum game.
Quadrant IV – conflictual interest group politics – indentifiable short-term winners and losers, so both sides organized and active.

Transactional Supply Model

Quadrant I
Distributed benefits/distributed costs
No strong pressure from organized interests, so legislature will favor no bill or symbolic action. Sometimes delegation to agency will occur.
Cong either take no action, or symb action

Quadrant II
Distributed benefits/concentrated costs
Proposal will be opposed by organized interests, so best solution = draft ambiguous bill & delegate to agency, so all sides can claim victory
Congress enacts vague statues, and delegate to administrative agencies

Quadrant III
Concentrated benefits/distributed costs
Costs can be allocated to uninformed public, so legislature will distribute subsidies and power to organized beneficiaries. Often lets powerful interest self-regulate.
good news for Congress – it gets to please interest groups, but no other people will notice

Quadrant IV
Concentrated benefits/concentrated costs
B/c any policy choice will incur wrath of opposing interest groups, legislators will favor no bill, or delegate to agency for regulation
No win situation for legislation, we end up with no statute or total agency delegation
This is the background underlying CRA, but why did the Act pass?

Special situations: entrepreneurs; pub outcry

United Steel Workers, 1979
USW gave preference to AA workers in its training programs to increase their numbers

Issue: does Art. VII of Civil Right Act allow/prohibit this kind of voluntary aff. action?