Legislation and Regulation
Spring 2017
Prof. Blake
HOW LAWS ARE MADE (THE LEGISLATIVE PROCESS)
Why do we need rules?
Predictability
More specified
Proactive
Penalties/Deterrent
Initiatives
24 states have this process
allows citizens to bypass the state legislature and place proposed statutes/constitutional amendments on the ballot
some states require congressional approval for placement on the ballot
requirements:
filing a proposal w/state officials
state reviews petition
preparation of the ballot
petition to obtain # of signatures (%)
submission to state officials to verify signatures
examples: marijuana in CA, MA, etc
note that WV does not have an initiative process
Referendums
2 types:
legislative referendum
state legislature refers measure to voters for approval
popular referendum
public petition
public rejects or approves a law that the state already passed
90 days
public can file petition
get signature
have referendum to repeal a law
24 states have this (most are initiative states)
examples: NE voted in favor of repealing a law that banned the death penalty. CA voted to maintain a law that bans single use plastic bags.
Federal Law – Important Congressional Roles
Speaker of the House
Controls order in which people speak during debates on bills
Rules on representatives’ objections during debates
Chooses leaders of every standing committee <- VERY IMPORTANT
Decides which committees will review a bill
Decides the members of the Rules Committee
Powers derive from House Rules, not the Constitution
Majority and minority leaders
Decide how their faction will vote
Whips
“whip” up votes
Who writes the Law?
Lobbyists
Staffers
Congress people
Activists
The Legislative Process
House Process (pg 57)
Bill goes into the hopper
Speaker refers to committee
Committee chair refers to sub-committee
Public hearings and private markups
Committee reports
Majority/minority leader edits
Rules Committee decides how the bill can be debated
Debate on the Rule
Goes to the floor
Debate on the /Bill/Amendment (only germane amendments)
Must relate to the bill
Vote (need majority 218/435)
Obstacles unique to House
Rules Committee
Senate Process (pg 57)
Senator introduces bill, often w/speech
Bill is referred to committee/sub-committee
Senate can skip committee and just debate
Unanimous consent instead of Rules Committee
Debate on the floor
Filibuster
Vote
Obstacles unique to Senate
Filibuster
Not a rule
It’s when debate cannot be closed (cloture) b/c it does not have 60 votes
Next Steps
Conference committee reconcile House and Senate versions
Representatives from House and Senate
Re-passage by House and Senate
President approves & signs… or vetoes
2/3 vote to bring it back if vetoed
Checks on Legislative Power
Formalism
Distinguishes the powers of the branches
Emphasized the necessity of maintaining 3 distinct branches of government, each with delegated powers: one branch legislates, one branch executes, and one branch adjudicates
Vesting clauses of the Constitution:
Art. I – legislative
Art. II – executive
Art. III – judicial
2 – step rule
Identify the power being exercised: legislative, judicial, or executive
Determine whether the appropriate branch is exercising that power in accordance with the Constitution
Overlap of power is not permitted for fear that one branch may accrete too much power
When a court resolves a separation of powers issue using formalism, inevitably, the Court finds the exercise of power unconstitutional
Functionalism
Balances the inevitable overlap of powers to preserve the core f
ngress’s intent, purpose of ACA, etc
Where does Roberts get all this info?
Looks at the history of other policies… such as Massachusetts
Roberts argues that Congress could not have intended to kill its own law
What is Scalia’s concern?
Congressional lassitude
SCOTUS could just bail Congress out
Worried about the encroaching of judiciary on Congress
Where was Kagan in this decision?
Majority/functionalist
Whose decision about the language being contested?
IRS
Agencies can interpret
How do you fix the error in this law?
Typically you have to go back to Congress but that was not a reasonable option here
Scalia’s dissent:
Congressional lassitude
READING AND INTERPRETTING LAWS
The philosophies on separation of powers that influence statutory approaches:
Formalism
Functionalism
Statutory approaches (influenced by views on separation of powers):
Textualists
Intentionalists
Purposivists
Sliding Scalers
The sources/methods we use to fulfill our statutory approaches:
Intrinsic: any materials that are part of the statute and its enactment
Comes from the legislature, count as part of the law itself
Ex: text of law, grammar, punctuation
Extrinsic: anything part of the statute’s legislative process
Comes from the legislature, part of its process
Ex: legislative history, signing statements, committee reports
Policy-based sources: general approaches/doctrines to reading a particular type of statute
