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Legislation and Regulation
West Virginia University School of Law
Blake, Valarie K.

Legislation and Regulation

Spring 2017

Prof. Blake


Why do we need rules?

More specified


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

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


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


“whip” up votes

Who writes the Law?

Congress people

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

Obstacles unique to Senate


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


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


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?


Whose decision about the language being contested?


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


The philosophies on separation of powers that influence statutory approaches:


Statutory approaches (influenced by views on separation of powers):

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