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University of Dayton School of Law
Howarth, Cooley R.

Legislation Outline

– Congress has all of the legislative powers and consists of the House and the Senate.
– House members are elected every two years.
– Senators are elected every six years.
– There are 535 people in the Congress total. 100 Senators = 2 per state and 435 Representatives = based on state population
– In America we have a bicameral system.
– Once Congress approves a bill it goes to the President to sign. If he signs the bill, it is now a law. If he vetoes it, it does not become law unless 2/3 majority in each chamber vote to override the veto. 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.
– For the most part, Congress follows the rules of history and custom, but there are rules that govern legislation, including committee consideration, scheduling procedures, and Senate rules allowing filibusters. These rules can be changed within each house by a majority vote. If rules are violated, there is often no enforcement of them. There are folkways of Congress such as the seniority norm where the senior legislators get to have prominent positions such as committee chairs and therefore they can block bills they do not like even if a majority of the Congress wants such a law passed. This is not as high as it is today as it was back in the day.
– Omnibus Legislation – is legislation that addresses numerous and not necessarily related subjects, issues, and programs, and therefore is usually highly complex and long.
Introduction of Bills
– Only legislators can introduce bills, but they are not always written by themselves or even come up with the idea for the bill themselves.
– The executive proposes or drafts much of the important legislation considered by the legislature.
– Agenda – the list of subjects or problems to which governmental officials and people outside of government closely associated with those officials are paying some serious attention at any given time.
– The president is the most influential political actor and is setting the agenda.
Committee Consideration
– The presiding officer of the legislative chamber refers bills to standing committees based on which committee has jurisdiction over the subject matter of the bill.
– Some bills are assigned based on common law practice.
– Parts of the bill can be sent to more than one committee, the whole bill can be sent to one committee, and or they can create a new committee just for the purposes of considering a bill.
– Some politicians will write the bill to be ambiguous so then they can convince the person who assigns the bill to committee which committee it should go to and once a precedent is set, all future bills ok the same kind will be sent to that same committee.
– The most important power of committees is the power of negation because the vast majority of bills referred to the committee never emerge for consideration by the full body.
– The chair of the committee plays a key role in what bills make it to vote or get killed.
– Discharge Petition – when you call for a bill to be brought to the floor. Half of the House members have to have signed the petition and then the bill is taken away from the committee and brought to the full House.
– The committee process is crucial for bills to have a good chance of being enacted because the committee can iron out difficulties and build a consensus in favor of the bill.
– The chair is the critical person when a bill is actively considered because he schedules hearings, determines who will testify at the hearings, and asks most of the questions.
– The U.S. Constitution does not require that Congress establish committees. Instead, this organizational patter is entirely a matter of lawmaker preference.
– Committees allow members to specialize and accumulate expertise in a substantive area. Committees are good because it allows all members to not become experts in every subject area, but instead are just experts in an area.
– Members partly self-select their committee assignments, so they seek appointment to committees with jurisdiction over areas about which they and their constituents have particularly intense preferences.
– Other times, the legislators seek committee assignments that would allow them to capture personal benefits from interest groups that could lead to them being compensated. Sometimes they pick committees because it allows them to spend time on topics of interest to them or it gives them national prominence. Sometimes they already have expertise knowledge so it makes sense that they serve on a committee in which they can use that knowledge.

Statutory Interpretation
– Learn how courts read, interpret, and apply legal statutes
– In what types of forums does this happen?
– You don’t know how the statute is going to be until its used for or against your client.
– It happens before a judge or administrative bureaucrat in a legal proceeding and they read, interpret, and apply the statute for or against your client done in 3 ways.

Public prosecution by a public law enforcement officer – is the traditional way by a public law enforcement officer such as by the prosecutors who are hired by the government to bring criminal or civil case against private people because you violated a statute.

– A civil suit can be a government entity against a private individual.

Private Enforcement – where one person sues another person by the use of a statute because the person they are suing had violated their rights. A private person can also sue the government agency for violating their rights – citizen suit provisions – there could be an implied ability to enforce it. The plaintiff is usually seeking monetary damages, injunctive relief, or both.
Administrative Enforcement – they create federal administrative agencies like the EPA or FCC to enforce the statutes. They are given the power of rule making or to make regulations. They are right up there with the statutes. A rule making proceeding is a legal proceeding. They are only allowed to write certain kinds of rules.

Adjudication – when someone violates the statute and or regulation the agency is enforcing you have to go before the adjudication panel because you were given a citation and it is like a regular court trial hearing, but it was different because its an administrative adjudication.
– You can seek judicial review of what the adjudication was if you are unhappy.
– Have to read every word in a statute.

There are three different approaches to interpreting statutes.


Holy Trinity Church v. United States
– A church had paid or helped pay for it to have a British pastor move to New York to be the pastor of its church. However, there was a statute that said that no one shall help foreigners come into the US to do labor. Depending on how you interpret the statute, you might think it was against the pastor, but most people do not think of a pastor as a laborer. The statute was generally passed to make sure that large companies were not importing cheap foreign labor from immigrants because it just lead for society to be evil and it treated the people like crap. In a country that is quite religious it did not make sense that the statute was out to prosecute a church who wanted to import a pastor who would not even be a manual laborer.
– The church had a contract for him to come over to be their pastor in exchange for him to be paid. The church is a corporation so how can you prosecute them.
– The US Attorney brought a lawsuit against the church for violatin

tion is another place to look.
– They want to assume that you meant what you said when you wrote the statute.
– The most legitimate meaning of a statute is the plain meaning of the text.
– The textualist time period was from 1789-1889.
– Then they created intentionalism to look at what the intended meaning of the words were and what their original intent was.
– The goal of intentionalism is subjective and different from the plain meaning approach and they wanted to give the words the intent that the legislature had meant and you have to look at outside resources to help.

Semantic Ambiguity

Where a legislature desires for a word to be ambiguous.


Is indefinite, imprecise, and general and not like ambiguity.

Syntactical Ambiguity

Is ambiguous on how the statute is put together. It is caused by unclear modification or reference.
You need to go beyond looking at the plain meaning because words can be unclear, vague, or ambiguous.

Where do you look at to find the original intent of the statute?

The statute (canons)
Definitional area of the statute or you use context clues
Extrinsic Materials

a. Committee Reports
b. Legislative History
c. Historical Circumstances

Intentionalists still look at the text of the statute to help interpret.

Legislative History

The documented history created by the legislature as it passes the statute.

Specific Intent – can you find something on point to the case you are dealing with? Its very hard to find the specific intent so instead you have to…
Imaginatively Reconstruct the original intended meaning.

Under imaginative reconstruction, you go back in time and act as a historian to see how they would solve the case as if it were then.
We do not care what the judge thinks, but what the legislature thinks.

Fishgold v. Sullivan Drydock and Repair Corp.

Statute said that for those who had to serve during WWII, your job would have to keep your job for you when you came back from furlough and that you should be returned to a position of the same seniority for at least a year.
Fishgold sued because he was laid off and not discharged/fired from his job as covered by the statute.
Therefore, he was not covered by the statute because the statute was to protect those who were fired and not those who were laid off.
Initially the men were only supposed to be trained for a year, but then he was overseas for 3.5 years and he wanted to be protected by the statute, but they did not because Judge Hand said that when the statute was passed, we weren’t at war, but now we were and they wanted to protect people who were in the service, but its unfair to hold their jobs for so long.
They looked at the intent in the Fishgold case and then Judge Hand had to do the reconstructive approach and said that Fishgold had to lose based on the statute and how he read it, even though he feels he should still be given a lot of protection because the statute still applied to him before he served.