A question for the legal eagles

[swan_tower]

More a question for the legislative eagles, I suppose. This has nothing to do with the Memoirs of Lady Trent; it’s a question for the modern-day U.S. (Because when I’m on the home stretch of a book is a great time for totally unrelated stories to mug me!)

Suppose there is a federal law to deal with Topic X. Ambiguous Situation B arises, sparking disagreement over whether the law applies in this instance or not. This is the first time Ambiguous Situation B has occurred, but it likely won’t be the last, and Topic X is a pretty serious issue, so people are very invested in getting the matter settled beyond question.

Quite apart from the fact that there would be presumably be a legal brangle over the applicability or irrelevance of Law for Topic X, I imagine that there would also be a rush to amend the law and render that question permanently moot.

My question for you all: how would this proceed?

Assume that Congress is very interested in getting the law amended ASAP, but that it is divided as to whether it should be amended to say “nope, definitely doesn’t apply here” or “hell yes it applies.” Would there be competing bills, one for each side? (I imagine there would.) Different bills in the House and the Senate? How do those get started? What process do they go through before they come to a vote? How rapidly could all of this unfold, presuming there is a compelling reason for trying to make it happen quickly? How would Congress deal with there being two bills in direct opposition to one another, if that’s actually what would be going on? What effect would the ongoing legal brangle have on the legislative process? (The lawsuit being settled in favor of “yes, it applies” could theoretically render unnecessary any change to say that yes, it applies, but Congress is now worried about the possibility of Ambiguous Situations C, D, E, and everything else they can think up. And if the lawsuit gets settled the other way, the side that wants Ambiguous Situation B covered could say “well, we just changed the law, and this version definitely applies.”)

I know only slightly more than zilch about the legislative process in this country, so this is one of those “talk to me like I’m five” questions. I need to know the procedure here before I can judge what it would do to the rest of the story.

Originally published at Swan Tower. You can comment here or there.

Comments

[starlady]

Individual lawmakers in both chambers of Congress are free to author any legislation and offer it for consideration at any time. All proposed legislation has to be approved by the appropriate committee within that chamber; a good deal of proposed legislation simply does die in committee either because it's not approved or because the chairperson arranges for it to never be brought to a vote. Assuming the legislation does get out of committee, the next step is for it to be voted upon by the full House or Senate in some form--often things like amendments, pork, and tons of other teeny things get attached to larger, more important bills such as budget appropriations, which is a small part of why those sorts of huge packages are always contentious. Tiny things like resolutions honoring Local Notable So and So are often dealt with quite routinely on the floor, but an amendment to a major piece of legislation would not be treated in the same way.

If a piece of legislation is not attached as a rider to another bill there is the question of whether the person in charge of each respective chamber (Speaker of the House, Senate Majority Leader) will even let that bill be voted on in the first place. In principle they are obligated to do this but in actuality they have a good deal of leeway, and the ability to accurately predict votes is a huge part of what makes a Speaker successful, just as the ability to count and deliver votes is the sign of a good whip. (At times leaders will free their caucuses to "vote their conscience," in the British idiom, which is usually a face-saving concession to the political necessity of a vote taking place.)

At this stage is when you will see filibusters in the Senate, although the rules for those have just been altered somewhat. You may have seen that episode of the West Wing in which the senator from Minnesota is filibustering a crucial budget bill and no one can figure out why and it turns out there's an obscure rider in it that would defund autism research and one of his grandkids is autistic. Once the Bartlet camp get a guarantee to strike that language and pass a note to him on the floor telling him so, he sits down and the vote goes forward immediately. If a Senator feels like it, they can filibuster legislation for as long as they can keep talking to delay a vote and, ideally, to force the bill under consideration to be revised.

If a piece of legislation passes one chamber it is submitted to the other for a vote in that one; if there are two sufficiently different versions of bills to do the same thing, negotiation is needed between members of both houses and the legislation as amended by that negotiation is sent back to both chambers for approval again. Each chamber does have to consider the legislation that the other submits to it, but again, in practice there is a huge amount of leeway as to whether and when the vote takes place--indeed, controlling when votes take place to one's advantage is another mark of a savvy leader. Harry Reid in particular is good at this; he will often extend sessions very late or cut vacations short to maximize the chances of votes going his way.

Once a bill has passed both the House and Senate it is submitted to the President for their signature, at which point the President can choose to sign it or not. If they veto it outright, it can be passed despite that veto if it secures a two-thirds majority in each chamber, but this is usually very difficult if not outright impossible--it usually takes a supermajority of one party in both chambers to guarantee being able to override the presidential veto. Presidents have at times availed themselves of the so-called "pocket veto," i.e. just refusing to bring legislation across their desks, although my impression is that this is less common in the age of modern media, because it doesn't look very bipartisan.

[swan_tower]

If a piece of legislation is not attached as a rider to another bill there is the question of whether the person in charge of each respective chamber (Speaker of the House, Senate Majority Leader) will even let that bill be voted on in the first place.

Not entirely clear on what you mean by this. Do you mean the Speaker/Majority Leader is likely to blockade a stand-alone bill, preferring things to be done in batches? It seems to me like they'd be eager to see a time-sensitive issue brought up solo, decreasing the odds that it will get stalled due to there being a farming subsidy or something else random attached. (Unless, of course, the leader is personally opposed to that version, favoring the opposing amendment. Then I can totally see them trying to block it.)

Also, if there are two proposed pieces of legislation that are diametrically opposed to one another, what determines the order in which they get voted on? Is it totally at the mercy of which one the Speaker/Majority Leader favors, or are there gambits a faction can use to try and push theirs in the face of that opposition?

(I strongly suspect what I'm going to end up with here is chamber deadlock, where the House passes one amendment and the Senate passes the opposing one. Naturally they vote down each other's proposed legislation, and nothing gets done . . . until I decide it should, for plot reasons.)

[starlady]

No, I mean the leader of the chamber has total leeway to decide in what order bills are brought to a vote. If they don't like a bill or if they think it won't get enough votes to pass they can and do delay the vote indefinitely, or at least until the situation changes and the other party offers them promises they like. that sort of horse trading will transcend any one chamber, usually.

But yes, you are correct about keeping urgent bills slim so they can pass quickly, in which case larding them with amendments becomes a delaying tactic the other side will use, although savvy use of the rules of order can defend against that to some extent (another thing Reid is good at generally).

The two diametrically different thing is tricky. if a leader doesn't like the version they get but think it might pass they will put off the vote, which is why it's in the interest of both parties, theoretically, to pass legislation acceptable to the other chamber. in practice, not so much. If they don't think it will pass they can let it go to a vote or not, depending on how best to bother the other party. these days things often just don't go to a vote, which is why you see people saying that the 113th has done the least of any Congress by most measures.

There are things that factions can do to try to get what they want, usually by making trouble for the leadership, often by threatening killing amendments, though a good leader arguably will be managing the factions so that they are mollified prior to floor votes. again, Reid is good at that; Boehner isn't, though the Tea Party is not easy to handle by any means.

[starlady]

I forgot to say that every vote is preceded by debate on the chamber floor, which is an important detail.

The effect of the fact that the Supreme Court referees all controversial federal legislation is that Congress will often wait to see what USSC decides before doing anything about legislation. A good example is the ACA, which had built-in delays of when it would be implemented to allow for it to go to the Supreme Court. And it's my rather subjective impression that Congress is less likely to amend legislation after a Supreme Court decision than it is to either repeal it outright or just write new legislation. The effect of Supreme Court decisions is actually often on federal government regulations and whether and how they are enforced--an excellent example of this is DOMA and how the Justice Department has been aggressively enforcing the letter of the Supreme Court decision striking down the clauses in it that they struck down, and also with before the decision, when the President and the Attorney General declined to enforce it and declined to defend it before the Supreme Court.

[sandmantv.livejournal.com]

This is a fairly interesting question, and common, for negotiating theory. I’m assuming for the sake of this conceit that the ruling is legitimately ambiguous.

One frequent outcome is that the two partisan sides would work NOT to pass any law or even show interest in it. Why? Because to want to pass such a law would indicate that you believed the current statute did not support you. Whereas by confidently not changing the law, you buttress your argument to the judiciary “the law already means what we want”. And there could be reasons (scope, timing, precedent for similar cases) that a positive judicial ruling is better than a new law.

Another factor would be which political faction controls the relevant judgeship, how biased they tend to act, and how close they are with the legislative leaders. If either party had the chance to stop a law, the party who feels confident in the judiciary allying with them, probably would. How they stopped it would be dependent on the various vetos inherent in that particular legislature (filibuster, committees, the Speaker not bringing the bill to the floor, divided Houses, etc.)

Basically, in an actual partisan environment (ie, modern America, or any European parliament, but NOT pre-1970's America), I'd be very doubtful of such a law getting passed.

It's also worth noting that you only get strong judiciaries in diffuse governments. If this legislature was a one chamber Parliament, with very few veto points for the minority, it's unlikely there is a supreme court that can actually have significant impact on major bills.

What would the legislative maneuvers be? Well one side would propose a pro-bill, possibly allowed in by both leaderships, and then the anti-side would propose an amendment to that bill, that says basically “now this bill does the opposite”. And the real vote would be on that amendment (or whether the leadership allows that amendment to come to a vote.)

Any major court ruling in this country would almost certainly have other impacts and precedents (and be faster than the legislative process), so there would continue to be a lot of effort spent on the case, no matter how the legislature looked likely to act.

[swan-tower.livejournal.com]

One frequent outcome is that the two partisan sides would work NOT to pass any law or even show interest in it. Why? Because to want to pass such a law would indicate that you believed the current statute did not support you. Whereas by confidently not changing the law, you buttress your argument to the judiciary “the law already means what we want”. And there could be reasons (scope, timing, precedent for similar cases) that a positive judicial ruling is better than a new law.

That makes sense, but I don't think they would go that route in this instance. Camp "Yes, It Applies" wouldn't want to sit around waiting for the legal case to be settled, because they believe there's a potential for Bad Things Happening every minute the law goes unapplied. Camp "No, It Doesn't Apply" knows that carrying out the law on Ambiguous Situation B is not a reversible process, so passing an amendment after the decision comes down would potentially be too late. (It would help any future instances, of course, but not the one that started this whole mess.)

I also need to look into how the legal side would play out, but I'm trying to tackle one thing at a time, here.

[bryant]

The legal brangle is the quickest way to get it settled. Case law/precedent has legal force, and the principle of stare decisis means that judges are required to respect prior decisions. Consider the number of states which have same-sex marriage due to lawsuits -- same thing. In those cases it's a combination of two laws causing ambiguity (law one says same-sex marriage is illegal, but the constitution says you can't discriminate), but the principle is the same.

I agree that the parties might want to get laws rammed through but it's still not necessarily faster, I think you could take, say, the saga of same-sex marriage in California might be a good model for how laws and lawsuits would interact.

[(Anonymous)]

This shows how much one learns when one takes Government by correspondence :-)

[jeditrilobite.livejournal.com]

It's a little easier to break this into a tangible example. Topix X = Class of Drugs. The law states that these substances are forbidden. Your situation B arises when there's a potential health benefit for these drugs, and there's people who want to use them for this purpose.

This will be a very granular sort of thing: there's lots of people who rightly think that these substances should be banned: there's plenty of examples that have led to the law in the first place. You'll likely have two things happen:

1) You'll have a push on the legislative side for the law to be amended and updated to take into account these instances (let's ignore the devoted folks who say that there should be no law altogether.) This will come up against resistances from the folks who firmly believe in the law, and there'll be some sort of debate.

2) You have some of your folks who would benefit from the substance take their issue through the court system, which will interpret the guiding principles which support the laws and see if the law should in fact be upheld, amended, or struck down altogether.

You'd also see all manner of people petitioning the Executive Branch to do *something*. They can certainly work within their limits, but they're also the ones responsible for enforcing the law. In our real world example, we've seen the feds actually stop prosecuting folks in some instances, but this isn't really a lasting strategy - it only lasts until another administration comes and changes it.

The most effective instance is to demonstrate that the law is unconstitutional in some manner, which will then help change the law.