Archive for April, 2017
A reader recently asked: “What is a ‘statute’ and how is it different from a ‘law?’ Or is it the same thing?”
An excellent question. After all, words matter. Words matter a lot. Indeed, punctuation matters too (so says the U.S. Court of Appeals for the First Circuit). I’ll leave Oxford commas and the like for another time. For now, let’s talk about some of the words commonly used by lawyers, legislators, judges, law professors, lobbyists, government executives, and others involved in local, state, and federal governance.
Often, people use the terms “statute” and “law” interchangeably. This is not exactly accurate. All statutes are laws, but not all laws are statutes. To really explain this, I have to give a bit of information about how statutes become statutes, which of course involves some additional vocab along the way.
Legislators (Congresspeople) write bills. Bills with any sort of traction are sent to a Committee (such as Ways and Means, Appropriations, Budget, Ethics, Homeland Security, Judiciary, and a whole host of others… check out the complete list of Congressional Committees if you feel curious). If the Committee approves the bill, then the bill is sent to the floor of the chamber of Congress in which the bill was filed, either the House of Representatives or the Senate. (The term “chamber of Congress” is used interchangeably with the term “house of Congress” but I think this gets confusing because, well, one of the chambers is called the House.) If the House or the Senate votes to approve the bill, then the bill is sent to the other chamber for its approval. Usually there is some political maneuvering here, with various drafts of the bill going back and forth between the House and the Senate until each chamber can secure enough votes on the current draft to get approval from both chambers. Once both chambers approve the bill, it goes to the President. If he (perhaps she in the future) signs the bill, it becomes a statute. If POTUS vetoes the bill and does not sign it, then it goes back to Congress for a potential veto override. If each chamber secures enough (more than originally required) votes to override the POTUS veto, then the bill still passes and becomes a statute, even though POTUS vetoed it. If the House and Senate cannot secure enough votes for an override, then the bill fails. (Note, we just covered a lot of opportunities for a bill to pass or fail. It has to pass every step, or achieve a veto override, to become a statute.)
Once a bill becomes a statute, it is published as a slip law, as part of the session laws, and as part of the United States Code. Generally, when people talk about federal statutes, they are referencing the U.S. Code; the language is the same regardless of the source, but it is probably organized differently. A slip law is the specific statute itself, flying solo, and it gets its own number (in sequence, of course). If you’ve ever seen or heard of a reference to “Public Law Number [X],” that’s the slip law version of the statute. Session laws are all of the slip laws for a particular session of Congress compiled into a single source. Slip laws and session laws are published by the Office of the Federal Register.
Slip laws usually make changes to existing statutes, so they read something like this: “Cross out the seventh word in the 42nd line of statute 1234 and replace it with the following text” and “insert, after the words ‘legislating can be so complicated’ the following new section, to be numbered section 15.” The U.S. Code deals with all of those internal references and actually inserts the new legislative language into the right spots in the existing set of statutes. Think of it a bit like editing a really long Word document; the slip laws and session laws show the tracked changes, while the U.S. Code is the clean copy.
So, what was the original question? Oh yeah… what’s a statute and is it different from a law? Now we know the statute is the bill in its final form, passed into law by Congress and/or POTUS. (Note the same process applies in state government as well, except it’s a governor instead of POTUS who gets to sign or veto the bill, and it’s a state legislature instead of Congress doing all the legislating.) The statute is a law. Period.
Really, though, there are other things that qualify as laws, if laws are rules set by government that must be followed by the population at large (or rather the parties to whom the laws apply). Take regulations, for example (often called “regs” for short). Frequently, statutes direct a particular federal agency to promulgate regulations (that’s just a fancy way of saying write and publish the darn regs) to further implement the intent of the statute. I think of regulations as laws too, given the definition I provided at the beginning of this paragraph. (I’m not the only one to define the term “law” this way.) Regulations are published in the Federal Register. We’ll save the regulatory rule-making process for another post.
That seems like enough for now. For more
super dry totally interesting vocab, check out the Senate glossary. It is quite comprehensive.
Lately I’ve received a lot of requests for what is essentially “Law School 101” information. Maybe you already know some (or all!) of the information in these posts. Maybe you knew some of the information once upon a time, but have since forgotten it. Maybe the information is completely new to you. Whatever background you bring to these posts, I invite you to read on, and hopefully this body of work will help some people, in some way.
The federal government has three (3) branches: the executive branch, the legislative branch, and the judicial branch. The executive branch consists of the President of the United States (POTUS), his Cabinet, and all offices and agencies falling under the control of those Cabinet members. (Cabinet members include the Secretaries of State, Agriculture, Health and Human Services, Education, Commerce, Labor, Defense, and the Interior.) The Legislature consists of the House of Representatives and the Senate, collectively called Congress. The judicial branch is the Supreme Court of the United States (SCOTUS), the federal courts of appeals (largely based on geographic region), nearly 100 federal district courts (also based on geographic region), and a number of other courts based on substantive matters (such as bankruptcy courts). The interplay between the three branches of government is dictated by the Constitution. Lawyers, politicians, and others working in government or related fields commonly refer to this interplay using terms such as “separation of powers” and “checks and balances.”
So, how do all those people in power get there? A quick review. The President is elected every four (4) years by the Electoral College. The President appoints a Cabinet, who must be confirmed by the Senate. (Ah ha! A check on the President’s power.) Members of the Legislature are elected by the voters. Senators serve terms of six (6) years, with approximately one-third of the Senators up for election every 2 years. Representatives serve terms of two (2) years and seats in the House are up for election every even numbered year. SCOTUS justices are nominated by the President and confirmed by the Senate. Once on the bench, justices have lifetime appointments unless they resign, retire, or are removed through an impeachment process.
Ok, now the people are in power. What exactly are those powers? Here’s an overly simplified explanation. Congress makes statutes by writing bills, voting on the bills, and then sending those bills to the President for a signature making the bill into an official statute. (If the President does not sign the bill, Congress can override that Presidential veto with a certain greater number of votes.) Congress also controls the money and holds the power to declare war. The President is the head of state and the Commander in Chief of the armed forces. As Commander, POTUS can send troops into battle without an official declaration of war from Congress. As the head of state, POTUS can sign bills into law, issue certain Executive Orders, and control the Executive Branch, which executive offices and agencies create and issue regulations that interpret and give greater context to the statutes enacted by Congress. SCOTUS reviews problems with statutes, regulations, other government actions, and various private activity to determine whether anything conflicts with the Constitution, including the Bill of Rights and all subsequent Amendments. If so, the Constitution wins. SCOTUS may also review problems for a number of other reasons, but only if those reasons for review are set out in Article III of the Constitution. You see, SCOTUS is a court of what’s called limited jurisdiction – it can only review cases specifically delegated to it, and the rest are reserved for lower federal or state courts. (By the way, the same thing happens with Congress and POTUS… specific powers are granted to the federal government and the rest are relegated to the states. This is called federalism.)
To get a case before SCOTUS, first you file a petition to be heard. The justices then decide whether or not to grant that petition. Every case filed receives at least this initial review. Most cases are rejected at this point, but a few will go through to a hearing. If the case is granted a hearing, then you know you’ve got an interesting problem. The parties submit briefs to the justices explaining their arguments and points of view. In addition, some “friends of the court,” or amici curiae in Latin, might submit briefs explaining other arguments. Each “friend” brief is commonly called an “amicus” brief. SCOTUS itself decides whether or not any particular amicus brief may be filed.
SCOTUS has nine (9) justices, each appointed by POTUS and confirmed by the Senate. Since these justices cannot be removed except in very rare circumstances and receive a lifetime appointment, those appointments are extremely important in shaping American law. This is particularly true because there really isn’t any check or balance on SCOTUS decisions, except for a subsequent set of SCOTUS justices reversing a prior decision. Reversing prior decisions, however, is rare because of the importance of precedent and the concept of stare decisis.
The stark problems with the nuclear option just exercised by the GOP Senators and Gorsuch’s appointment to the bench should be apparent. Once seated, a SCOTUS justice gets one of only nine votes FOR THE REST OF HIS OR HER LIFE. Further, once that vote is cast, whatever the majority decision is, it’s very likely here to stay. Few moments in American democracy bear comparable need for separation of powers and appropriate checks and balances.
The GOP, however, just eroded that Congressional check on Presidential power to appoint a SCOTUS justice (and I haven’t even mentioned what those same GOP Senators did to Merrick Garland, the person who should be sitting on the SCOTUS bench instead of Gorsuch).
The very fabric of our democracy just ripped like the seat of someone’s pants.
Did you hear it? Do you feel the breeze?