Select Page

Legislation
University of Dayton School of Law
Cox, Jeannette

An Introduction to Legislation. Today, most legal inquiry is structured by statutes and administrative regulations rather than common law. Legislative intent is the key to statutory interpretation but it holds many problems. U.S. courts have no generally accepted theory of statutory interpretation so attorneys are encouraged to craft arguments as cumulatively.
Three types of theories in this chapter: Pluralist theories which focus on the role of interest groups in policymaking; Proceduralist theories, which emphasize the many obstacles a bill must pass through before it becomes a law; and Institutional theories, which approach statutes from the perspective of the various institutions charged with enacting, implementing, and overseeing them.
1. The Story of the Civil Rights Act of 1964 and the Procedures of a Statute-Creation. Brown v. Board of Education declared the principle of non-discrimination and racial equality, but Brown only applied to public institutions and even then they were only required to desegregate “with all deliberate speed,” which turned out to be extremely slow.
With MLK’s Birmingham campaign in 1963 AG RFK & the Kennedy admin publicly proposed a comprehensive civil rights bill to the Congress. (Pg. 2-24 details the entire process.)
Note on How a Bill Becomes a Federal Law. The Constitution and its amendments set forth the basic structure of the legislative process. Elected representatives will pass the laws in a bicameral system and the chief executive (the presentment requirement) will sign them into law. If the President does not sign or return the bill within ten days and the Congress remains in session, the bill becomes law as though he had signed it. If Congress adjourns during the ten-day period, the bill does not become law, and the President has pocket vetoed the proposal.
Most of the procedures followed in Congress are the products of history and custom, rather than constitutional mandate. If the House or Senate violates the rules, there is often no effective enforcement mechanism to void the action. Courts have been reluctant to enforce congressional rules when they are ignored, holding instead that rulemaking and enforcement are committed by the Constitution to the discretion of each house. Informal norms and practices are called the folkways of Congress.
How a Federal Bill Becomes a Law – HOUSE OF REPRESENTATIVES: Drafting of Bill or Resolution →
Introduction of Bill by Member →
Referral to Standing Committee →
Committee Action (can be referred to subcommittee; hearings held on major bills; committee resolution: take no action, defeat, accept or amend and report) →
Major Calendars →
Rules Committee →
Floor Action (passage or defeat) →
SENATE: Referred to standing committee →
Floor action (filibuster option which requires 60 votes to override) →
Conference Committee (Created from members from each house; each house must agree to the conference report) →
Presentment to President (May sign, veto, become law without signature; or “pocket veto”).
State legislatures usually follow similar procedures. In recent years major legislation has followed unorthodox paths. Omnibus legislation, which addresses numerous and not necessarily related subjects, is now common involving several committees
Introduction of Bills. Only legislators can introduce bills, but in some states governor’s are required to submit budget bills.

the Consent Calendar with bills of less than $1 million spending which are considered twice a month. The Discharge Calendar lists motions to discharge bills that are pending in committee. Bills may be called up and considered under the suspension of the rules process.
The Senate has two calendars: Calendar of the General Orders and the Executive Calendar for treaties and executive nominations.
Budget and appropriations bills are privileged matters and can be brought to the floor at virtually any time.
The House rules committee decides whether it will propose a rule for the bill. An open rule permits amendments, a closed rule prohibits all floor amendments and a modified closed rule permits specified floor amendments and structuring the order of their introduction. The rules committee also controls the time for debate that’s allowed. There’s no Senate Rules Committee but instead does the same thing via a unanimous consent agreement. Most state legislatures use only a single calendar.
Floor Consideration: Debate, Amendment, Voting. Three important aspects of congressional decision-making occur during such floor consideration: debate, amendment, and vote.
Debate is severely limited in the House by general or special rules. Often members submit statements for printing in the Congressional Record. In the Senate cloture requiring 60 votes cuts off debate.