Administrative Law Outline

Taylor: Legislative & Administrative Law
LEGISLATIVE UNIT
 
INTRODUCTION TO LEGISLATION
 
I.                     Procedures of Statute Creation: The Civil Rights Act of 1964
a.        General Legislative Process:
                                       i.      Introduction of Bills
1.        Only legislators can introduce bills, but they do not always come up with them.
2.        The President exerts substantial influence over the shape of the political agenda.
                                      ii.      Committee Consideration
1.        Bills are typically referred to standing committees that have jurisdiction over the subject matter of the bill by the presiding officer of the legislative chamber [with the help of the parliamentarian].
2.        The key player is the chair of the committee: If they refuse to schedule hearings for a bill or fail to refer the bill to subcommittee, the bill will usually die. The committee chair typically assigns the bill to subcommittee.
3.        Once a subcommittee “marks up” the bill [add amendments / redrafts] to its satisfaction and the entire committee votes to send it to the full chamber, the committee drafts a mandatory report on the bill (history of bill and persuasive brief setting forth factual and policy reasons justifying the legislation).
                                    iii.      Scheduling Legislative Consideration
1.        In the House, every bill MUST go through the Rules Committee. The chairman of this committee can kill a bill by not putting it on the agenda. 3 votes needed to bypass hostile Rules Committee Chairman.
2.        The Rules Committee determines the length of debate will go and whether amendments will be allowed.
                                    iv.      Floor Consideration: Debate, Amendment, Voting
1.        House dissolves itself into Committee of the Whole. This reduces publicity of votes (they are not recorded).
2.        After general debate and voting on amendments, the House votes on the passage of the bill (same for Senate).
3.        In the Senate, bills are subject to unlimited debate and filibuster. This can be broken by a motion for cloture. 
a.        60 votes needed to invoke cloture.
4.        Filibuster can occur twice: (1) consideration of whether to consider bill AND (2) debate on the merits of bill.
5.        Vote influences: (1) vote-trading (2) personal & political favors (3) party loyalty, committee assignments.
                                     v.      Conference Committee
1.        If versions passed by House and Senate aren’t same, the last chamber to disagree may request a conference.
2.        The chairmen of the relevant committees appoint representatives:
a.        No limit on number
b.       No limit on party id
c.        Not supposed to discuss identical portions; supposed to split the differences [often waived].
3.        Either house can accept the other’s version of the bill to avoid a conference committee.
4.        When conferees have reached an agreement, they set forth their recs in a report that each Chamber votes on.
                                    vi.      Presentment for the Presidential Signature
1.        Once presented, the President has 10 days to sign or veto it.
2.        If President vetoes, the veto can be overridden by 2/3 vote in Congress.
3.        If Congress adjourns within the 10 day period and President doesn’t sign, the bill is killed by a pocket veto
 
b.       CRA: Events of 1963:
                                       i.      Kennedy Administration proposes the bill in response to Civil Rights Movement.
1.        90% of bills introduced fail and are not passed into law.
                                      ii.      Kennedy’s assassination 1 day after CR bill was reported out of rules committee: tied the bill to martyred president.
                                    iii.      MLK Jr. “I have a dream” speech and March on Washington occurred before the bill was marked up in committee.
                                    iv.      Bill was introduced in both houses. Usually go to the house were you think you will have the best chances. Look at the different rules of chambers, as well as different people in each chamber. 
1.        If this bill went to Senate first, it would have died. Judiciary Committee Chair Eastland was a segregationist.
c.        Passage of Bill in House of Representatives
                                       i.      Speaker of the House receives bill.
                                      ii.      Bill assigned to a committee based on it subject matter.
1.        House Judiciary Committee has jurisdiction
a.        Cellar (D, Brooklyn) Chairman of the Judiciary Committee
                                                                                       i.      Cellar referred the bill to subcommittee 5 b/c he was chair of that committee and it was dominated by Southern Democrats
                                                                                      ii.      McCulloch (R, Ohio) Ranking Republican Member of Subcommittee 5
                                                                                    iii.      Obstacles Cellar was most worried about:
1.        mark-up process in subcommittee
a.        during mark-up, amendments are considered and the bill is rewritten
b.       mark-up in subcommittee was much stronger than had previously been agreed upon
                                                                                                                                          i.      Even though this bill is now stronger, the Southern D