Legislation

Legislation is laws that are made or enacted by a governing body, or “legislature.” In the United States, the legislative process functions at both the federal and state levels, where proposed laws are referred to as “bills.” Laws passed through the legislative process may serve to outlaw something, to authorize, sanction, or grant something, to regulate something, or to restrict something. To explore this concept, consider the following legislation definition.

Definition of Legislation

Noun

1. The act or process of making or enacting laws.
2. A law, or set of laws, enacted by a government.

Origin

1645-1655       Late Latin         lēgislātiōn–

The Process of Legislation

In the U.S., federal law is primarily created and enacted by Congress. Each law starts out as an idea put forth by a member of either the House of Representatives or the Senate. The idea must be written in a form that is comprehensive, expressing the need for the law, and the process by which it will be instituted and enforced. The next step in the process of legislation is to send the bill to a congressional committee to be studied and revised, if need be, before being sent to the House of Representatives to be debated and voted on.

Once a bill is approved in the House, by a simple majority of a minimum of 218 of the 435 representatives, it goes to the Senate. The bill is assigned to another committee in the Senate to be studied and discussed. If the committee approves it, the bill goes to the Senate body to be debated and voted on. If the bill passes the Senate with a simple majority of at least 51 of the 100 senators, the finalized version is printed by the Government Publishing Office, and sent to the President for his signature.

The Power of Veto

Once a bill has passed both houses of Congress, it goes to the President, who has only 10 days to either approve it with his signature, or to reject it with a veto. If the President fails to act within that time limit, the bill automatically becomes law. If a bill is vetoed, it is sent back to Congress, where it can either be debated and altered, then resubmitted to the President, or it can be dropped altogether.

The path of a bill through Congress, and the presidential power of veto are outlined in Article I, Section 7 of the U.S. Constitution, which provides:

“Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated …”

Congress can override a president’s veto by a two-thirds majority vote in both the House and Senate. This system of passing proposed legislation through both houses of Congress, then to the president, and back to Congress (in the case of a veto), is a fine example of legislation checks and balances. No one entity can enact laws on its own. Rather, they must be considered by the people’s representatives in both houses of Congress.

Types of Veto

There are two methods that may be employed by a U.S. president to veto a proposed law: the “regular veto,” and the “pocket veto.” When a president rejects a bill, and returns it unsigned, accompanied by a letter explaining why it was rejected (a “veto message”), it is considered to be a regular veto. A bill vetoed in this manner may be revised and returned to the president, or it may be overridden by a two-thirds majority vote. The first regular veto in the U.S. was issued by President George Washington on April 5, 192.

There is another way a president can veto a bill, so that it cannot be overridden by Congress. A “pocket veto” involves failing to sign a bill, simply waiting until Congress adjourns from their current legislative session. Vetoing a bill when Congress is not in session guarantees that Congress cannot override the veto. The authority for a pocket veto is also outlined in Article I, Section 7, which states:

“If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.”

Of course, a pocket veto of any legislation is only possible on legislation given to the president within 10 days of the end of Congress’ session. Naturally, there has been contention over when a pocket veto may be used, specifically an argument about what constitutes an “adjournment” of Congress. The judicial branch of the government has ruled that a pocket veto may only be valid should Congress adjourn without scheduling a specific day to return and discuss the matter. The first pocket veto was issued by President James Madison in 1812.

Statutory Law vs. Common Law

In the United States, there are two types of law that govern the people, and guide the courts in rendering decisions in court cases. “Statutory law” refers to laws established through legislation, having gone through the proper channels in the legislative process. These laws, or “statutes,” may be enacted by the various levels of government, including the federal government, and the individual state governments. Statutory laws cover every issue from child neglect and abuse, to traffic laws and liability of at-fault drivers for accidents.

Common law is an important element of the American legal system, in that it provides a look into the process by which the courts come to certain decisions in both civil and criminal cases. These decisions become either binding precedent, meaning that judges in future similar cases must use the same decisions or process. Common law is used in conjunction with applicable statutory laws to render consistent judgments on similar cases.

State Legislation

Much the same as the federal legislative process, each of the 50 states has its own legislative body, which enacts laws specific to their own jurisdictions. In addition, smaller jurisdictions within the states may enact statutes, ordinances, and regulations. In each case, there is a hierarchy of authority. For instance, a city or county cannot make an ordinance that disregards state law, nor can a state enact legislation that defies federal law.

Federal law, however, is restricted by the provisions of the Constitution, in that Congress may only legislate issues under their power as assigned by Constitution. These are known as “enumerated powers.” All other issues are reserved for the states to legislate and deal with; these are known as “reserved powers.”

Reserved powers place most issues of law under the control of the states, including tort law, contract law, property law, family law, and probate law. Criminal law falls within the jurisdictions of both federal and state laws, depending on which law was violated.

Multi-Jurisdiction Legislation Example

Fred and Amelia are getting a divorce. They are fighting over custody of their three children, and cannot agree about the division of property. One day Fred picks the kids up from school, and takes them to another state, without telling anyone where he is going. Amelia is panicked, as Fred has clearly abducted, and is hiding, the children.

The judge presiding over the couple’s divorce immediately revokes Fred’s parental rights, giving sole legal and physical custody of the children to Amelia – assuming they can be found. When Fred enrolls the children in school at the end of summer, the FBI is alerted to their whereabouts. They retrieve the children, and arrest Fred. In this example, legislation of multiple jurisdictions governs the couples’ issues. While family court is governed by laws of the state in which Fred and Amelia lived, child abduction across state lines falls under the authority of the FBI, which is governed by federal law.

Civil Rights Legislation Under Fire

In the spring of 2016, the state of North Carolina enacted legislation requiring all people to use the restroom assigned to the sex stated on their birth certificates. This was seen by many to be a direct attack on the civil rights of transgender people. As the federal government attempted to protect the civil rights of the LGBTQ community, the state accused it of overreaching its authority. The result was dueling lawsuits filed in May, 2016.

North Carolina’s governor, Pat McCrory, argued that he signed what had become known as the “bathroom bill” in response to a city ordinance enacted by the city of Charlotte. The ordinance recognized the civil rights of people based on gender identity, and on sexual orientation. In this federal vs. state example of legislation under fire, U.S. Attorney General Loretta Lynch compared the bill’s breach of civil rights to the dark legacy left by the Jim Crow laws, which legalized the segregation of black and white Americans. Lynch pointed out that:

“It was not so very long ago that states, including North Carolina, [had] other signs above restrooms, water fountains and on public accommodations, keeping people out based on a distinction without a difference. We have moved beyond those dark days, but not without a tremendous amount of pain and suffering and an ongoing fight to keep moving forward. Let us write a different story this time.”

Related Legal Terms and Issues

• Binding Precedent – A rule or principle established by a court, which other courts are obligated to follow.
• Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
• Simple Majority – A vote by at least 51% of the members of Congress, or other voting body.