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Legislation and Regulation
Vermont Law School
Scanlan, Melissa K.

Professor Scanlan
LEGISLATION/REGULATION
Fall 2017

SEPARATION OF POWERS
Federal
Congress (Article I)Senate, House
Executive (Article II) VP and Cabinet
Judiciary (Article III)Supreme Court, Federal Courts
State
Legislative
Executive
Judiciary

PASSAGE OF BILL
Introduction
Assignment to committee (by Speaker of House or Senate Majority Leader)
Committee hearings/reports
Floor debate in each chamber
Conference report resolving differences between each chamber
Each House votes. Simple majority.
Present to President for approval/disapproval

PRIMARY SOURCES OF LAW
U.S. Constitution
Legislation/Statutes
Administrative Rules/Regulations/Orders
Case law/common law/court decisions/judicial opinions

ARTICLE VI
Federal Supremacy and Preemption (All are supreme laws of land)
U.S. Constitution
Federal Laws
Treaties
FEDERALISM
Dual system of government, including courts
Constitutional scope of federal and state
a)Federal government of enumerated powers
i)Article I, § 8)
b)State power
ii)Art. I, § 10; 10th Amendment)
“…powers not delegated to the U. S. by the                            Constitution, nor prohibited by it to the States, are                 reserved to the States…”

STARE DECISIS “Let it Stand”
Courts follow precedent
Mandatory or persuasive, depending upon jurisdictional hierarchy

Obergefell, et al v. Hedges (same sex marriage case)
Several states define marriage as between one man and one woman. Petitioners, 14 same-sex couples, filed suits in Federal District Courts, claiming state officials violated 14th Amendment rights

STATUTORY INTERPRETATION

TVA v. Hill (snail darter/Tellico Dam)
General rules
The language of the ESA is unequivocal in its protection of endangered species; § 7 of the Act applies broadly to actions “authorized, funded, or carried out” by the federal government at any stage of the project
It is “…beyond a doubt that Congress intended endangered species to be afforded the highest of priorities.” Costs should not be considered. No balancing by the Court.

Rules re: Statutory Interpretation
Plain language/ordinary meaning
If ambiguous, then look at legislative history to determine meaning
Subsequent laws to not repeal by implication (i.e., later appropriations)
Appropriations do not alter substantive law
Court interprets statute but should not second guess policy choices by Congress (conservation over development)

TEXTUALISM
How would a reasonable person understand precise language of statute; does not usually go far beyond text

Textualist rules on interpreting statutes:

Interpret plain language of statutes passed by Congress and signed by President
Discern meaning of words based on usage…by Congress in other statutes (whole code rule)and by judicial interpretation of same term
Where statute’s terms a

could not have intended for a murderer to inherit from victim’s will
The underlying maxims of common law give the courts the ability to determine the intent of the legislature
Public policy dictates that a person cannot inherit property from someone s/he has murdered

Dissent: The Court is Bound by the “rigid rules of the law, which have been established by the legislature;” strict interpretation, not intention of legislature

Church of the Holy Trinity v. U.S. (1892)
Was prohibition of foreign-born minister intended by Congress when it passed a law prohibiting companies from paying for passage to USA and employing manual laborers? No
Look at plain language
“It is the duty of the courts…to say that, however broad the language of the statute may be, the act, although within the letter, is not within the intention of the legislature, and therefore cannot be within the statute.”
If plain language is ambiguous, look for clues to provide context, such as the title, or contemporaneous events in society, and legislative history
No purpose of action against a religion can be imputed to any legislature, state or national, because this is a religious people