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Legislation and Statutory Interpretation
University of Dayton School of Law
Howarth, Cooley R.

Legislation Outline

PUBLIC LAW v. PRIVATE LAW

Private law–common law
rights and duties of individuals in their relationships with other individuals
Judge made common law

Public law
· Relationships between individuals and their government; govern and regulate people and events
created by gov’t bodies: legislatures and agencies
future indicated

Public law is superior to private law
Courts cannot create, amend, repeal any statute unless it is unconstitutional

I. MECHANICS OF THE LEGISLATIVE PROCESS

Terms/ Definitions:
a) Simple Resolution- governs the organization or procedure in one of the houses and are known as “house” or “senate” resolutions.
b) Joint resolution- a resolution adopted by both houses; effect of LAW if signed by the President; very little difference between a bill
c) Concurrent resolution- a resolution adopted by one house of Congress and concurred in by the other house; it does not have the force of law and it is not signed by the president Used to govern the conduct of both houses of legislature or to express a shared policy.
d) Markup- committee discusses each section of the bill and votes on the proposed amendments
e) Committee of the whole- Entire legislative chamber; a bill can be amended by the legislative body as a whole; rules are simplified in this process as compared to amendments made in committee
f) Conference Committee- reconciles differences of the bills as approved by the House and Senate; the bill must be identical to become law.
g) Bill-Legislative proposal
h) Legislative Calendar- a vehicle by which a bill can be scheduled and classified for legislative consideration. House has five calendars and the senate has two
i) House Rules Committee- it determines how and when a bill will be debated on the floor. The Rules Committee chairman has a considerable amount of power.
j) Substitute Amendment- seeks to changeprovisions in the bill, often to weaken them.
k) Amendment in the Nature of a substitute- seek to replace the entire bill-to kill the first one
l) Rider: unrelated provision or measure added to a bill late in the legislative process, with the intention that it will “ride” through.

Committees- the purpose of a committee is so a bill can properly be reviewed and evaluated. Committees provide expertise on specific issues of a bill. They determine the value of the bill.

TYPES OF LEGISLATION

1. Bill
2. Joint Resolution: amend or repeal a current statute
3. Concurrent Resolution–organizes conduct of congress
4. Simple resolution–concerns conduct of one chamber

HOW A BILL BECOMES A LAW

A. Bill goes through the House

1. Origination of Bill:
o by executive agency, political interest group, individual member, bill drafting agency
2. Introduction of bill by a member

3. Referral to standing committee by leadership and parliamentarian
o Committee’s: subject/topic
o subcommittees; discuss necessity/desirability of bill
o possible referral to subcommittee
o hearings customary on major bills

4. Committee Action:
1. Disregard bill (PIGEONHOLE)
2. Defeat bill;
3. Accept & report
4. Amend and report
5. Rewrite
**while bill in committee:
o Committee report given a line by line analysis by staffers
o Mark up session: bill is amended rewritten by committee

5. Calendars: Orderly, sequential record of bills to be reported on by the committee
1. HOUSE CALENDARS:
a. UNION: bills raising revenue
b. HOUSE: all other public bills
c. PRIVATE: bills advancing individuals claims against the gov’t
CONSENT: expedited minor bills from UNION OR HOUSE, noncontroversial
d. DISCHARGE: motions to remove bills from committee

6. Rules Committee (only in House)(major bills):
o Hearings
o Closed rules
o Open rules (predominant form)
a. resolution re: debate is prepared. RULE
1. amt. of time for debate
2. how time will be allocated
3. scope of permissible amendments
b. Most Powerful committee.
c. EVERY bill goes through rules committee
d. Could kill a bill before it ever gets to house
1. Could refuse to grant a RULE for debate
c. Other things Rules comm. can do:
2. Can allow for open debate à allows for amendments
3. Closed debate à prevents amendments from being added on floor
4. Modified debate àallows for specified floor amendments

**HOW TO GET A BILL OUT OF COMMITTEE**
1. Calendar Wed: speaker is allowed to call the comms to inquire if chairwoman wishes to call up for consideration any bill previously reported out of comm.
2. Any three of a comm. can call chairwoman to call a meeting to consider a bill

7. Floor Action:
a. If the rule is accepted the body will resolve into the “Committee of the Whole House of the State of the Union” which is actually just the House following simplified procedures for the purposes of debate.
b. General debates and discussions about merits of bill
c. Second reading
d. Amendments will be offered, debated, and accepted or rejected by unrecorded votes.
1. Substituted à seeks to change provisions of the bill
2. Amendment à on the nature of the substitute: seeks to replace the entire bill
e. The membe

d
2. Indirect: upon the collection of the signatures, the proposed statute is submitted to the legislature, which is given a period of time in which to approve/disapprove of the measure.

Referendums: the electorate may approve or disapprove of a law proposed by or already enacted by the legislature.

1. popular/voter: upon the collection of the requisite signatures, a low already passed by the legislature is subject to approval/disapproval by the electorate
2. legislative/ submitted: prop[posed law place before legislature for approval/disapproval or for advice

Recall: allow voters to remove elected officials from office before the expiration of their terms

Practical Problems of Direct Democracy
· Burdensome procedures and the importance of money
· Voter confusion or apathy
· Distortion of the lawmaking agenda: undermine far-sighted action due to
intense preferences of a small group
B. FEDERAL LEGISLATURE

Enumerated Powers: a government with limited powers delegated to the federal government by the states as Articles 1-6 in the Constitution
Federal power is limited: can only write legislation pertaining to certain topics listed in section 8 of Article I

Exclusive Authority: only the federal government has the authority to perform certain tasks (eg. coining of money, foreign affairs, keep and raise army)
No direct democracy at the federal level (just as Madison wanted it)

C. CONCURRENT POWERS of the state and federal government
· Occurs when the state and fed pass similar legislation; can cause a conflict
· State regulates buying and selling of liquor / Feds regulate commerce clause
· Anytime there is a conflict of state and federal law the federal law will prevail

D. LIMITATIONS ON STATE AND FEDERAL LEGISLATION
· 5th and 14th Amendments: Limits the Substance of federal and state legislation
· Guarantees Due Process rights
§ STATE: 14th Amendment
§ FED: 5th Amendment
.
· Substantive Limitations imposed on State & Federal legislature (laws allowed)
1. No Bill of attainder: