Posts Tagged law

Words Matter, Part 1 (and The Legislative Process)

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.

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The Structure of the Federal Government, with a focus on the Supreme Court

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?

 

 

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This space is mine! Or, adventures in air travel.

We occupy spaces, and sometimes, those spaces come at a cost.  Let me give you three examples that bring this to a head (or a knee, as the case may be), all dealing with air travel.

A friend on Facebook recently posted this status: “I f*cking hate ‘Economy Plus’ concept. I am tall – give me leg room for free, and stop giving it to the 4’11” person who pays $50 extra.”  Now, to be fair, this person really is quite tall… several inches above 6 feet.  And it’s pretty easy to see his side of the argument; he physically needs the extra space, so the airline should give it to him.  Us shorter folks might appreciate the extra space for, say, easier laptop usage, but it’s not quite the same thing.  Regardless, the airlines charge more for the extra space.  And in the absence of the extra leg room, both the tall person and the person sitting in front of him/her are — well — uncomfortable for the duration of the flight because of knee or back pain.

Now consider another example… people who physically need more space horizontally rather than vertically.  I’m talking about fat people who spill over into the adjacent seat(s).  These people could probably make a similar argument to the one offered by the tall folks needing more leg room.  Think about it: “I am fat – give me tush room for free, and stop giving it to the thin person who [doesn’t need it].”  Again, the argument doesn’t fly (or hasn’t yet).  The airlines can charge more for an additional seat, and even require it in some cases.  And again, in the absence of the extra side space (i.e., an extra seat), both the fat person and the people on either side of him/her are uncomfortable for the duration of the flight.

The third example serves as a pseudo-remedy for half the people involved in the first scenario.  Just a few weeks before my friend’s Facebook post appeared on my news feed, the NYT published this article about a new contraption designed to block the person in front of you from reclining his or her seat.  It seems the people most likely to use this “Knee Defender” are the tall people, like my Facebook friend, whose knees are already pretty close to (or right up against) the seat in front of them before the passengers in the seats ahead push the recline button.  But isn’t it part of the seat’s functionality (for which people pay) to recline?  And if the person in 7C is using this Knee Defender contraption, I bet the person in 6C isn’t too happy about it.  6C paid for the seat.  The seat is designed to recline.  Isn’t it 6C’s choice to recline and use the functionality for which 6C paid?

The law’s answer is no.  The FAA says that the Knee Defender, costing $19.95, is legal.  The law also says that the airlines can charge $50 extra for additional leg room and require fat people to purchase a second seat (clearly for more than $50).  All three are about a person needing more space than standard coach seats allow.  The Knee Defender folks claim they are “standing up for the right of the tall guy to sit down.”  One could argue that the airlines, by requiring the purchase of an additional seat or extra leg room, are protecting the rights of the folks who fit in the standard seats.  Of course, there’s a fourth option: first class.  Tough for many air travelers to afford.  And if the spaces in coach are enlarged overall, it stands to reason that the cost of coach will come much closer to the cost of first class… prohibitively expensive in several cases, and likely an unpopular choice for the airlines to make.  Let’s assume that the spaces will not be enlarged any time soon.

So whose rights are actually protected by the law?  Thin people.  Short people.  Anyone who purchases a Knee Defender.  The Knee Defender manufacturer and the airlines, focusing on their profits.  Maybe all’s fair in commerce and air travel.  Stop and ask, though… is it really fair?  And which parts do you think are fair, while other parts perhaps are not?  Is it more fair to make fat people purchase additional seat space than it is to make tall people purchase additional knee space?  Why?  And what about our friends in 6C and 7C?  If 7C isn’t in Economy Plus, is it fair for 6C to have to sit with knees in his or her back for several hours?  [Tall folks aren’t (yet) required to pay for Economy Plus.]  On the flip side, is it fair to allow 7C to take away 6C’s right to recline?

Maybe the law’s answer should be that the rights to protect are those of the person who purchased the use of a particular space, and anyone who interferes with the use of that space is invading.  Or maybe the law’s answer should be that the airlines must accommodate now-larger Americans by increasing the spaces purchased.  What would be the costs?  And what are the costs we incur in the system as it currently exists?

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Mandatory sick leave in Seattle

This past week, a committee of the Seattle City Council approved an ordinance that, if approved by the full Council, will require businesses in the city to provide compensated sick leave to their employees.  Local news coverage of the developing story is available here, here, and here.  Some think of this effort as an important public health measure, designed to encourage sick employees to stay home.  Others think of it as an unnecessary increase in business operating costs.

First, let’s take a look at a few of the specifics in the ordinance.  Paid sick leave accrues at varying rates depending on the size of the employer (1 hour of leave for every 30-50 hours worked), and the rates increase with the size of the employer.  Similarly, the maximum amount of sick leave that an employee might accrue depends on the size of the employer (40-72 hours per year), and the limits increase with the size of the employer.  Unused sick time from one year rolls over to the next.  Sick leave may be used for a variety of reasons, including an employee’s personal illness (mental or physical), to get preventive health care (such as an annual check-up), to care for a sick family member, and numerous reasons associated with domestic violence, sexual assault, or stalking (including legal proceedings).  Employers may not retaliate against employees for using their sick leave.  New businesses are exempt from compliance for 2 years.

Then take a look at the details of how employees will access their sick leave.  All requests for sick leave should include the expected duration.  If possible, the request must be submitted in writing at least 10 days in advance.  Documentation (such as a doctor’s note or, in the case of domestic violence, a police report) may be required, if an employer so chooses, for leave lasting more than 3 consecutive days.

Finally, take a look at how the sick leave mandate will be enforced.  A claim by one or more employees that an employer violated the ordinance must be submitted in writing to the Seattle Office of Civil Rights within 6 months of the violation.  The Seattle OCR will investigate the claim and determine its validity.  If the claim is determined to be valid, then the parties can settle it (probably meaning that the employer pays the employee some sum of money) or the claim can go forward for additional prosecution either by the employee(s), in court, or by the Seattle City Attorney, before the Seattle Office of the Hearing Examiner.  If a hearing starts with the Office of the Hearing Examiner, then the employee(s) lose their right to proceed in court.  There is no time limit for OCR to issue its determination; the ordinance simply says that the determination must be issued “promptly.”  That determination is a precursor for any further proceedings.  In other words, an employee cannot sue in court without the OCR decision.

A few thoughts and questions about this law and real life:

  • Who is served here?  Employers?  Employees?  Customers?
  • Smaller employers may be concerned about increased operations costs, but are the costs worth the benefits?  One or two days off to recover from a cold, for example, may be better than a week’s worth of decreased productivity on the job and the risk of getting other employees sick.
  • What about the proof?  How many employees will be able to get a doctor’s note if they have the flu and it takes a week to get over it?  What about employees seeking paid sick leave because of domestic violence — is it reasonable to require that these survivors submit police reports and other documentation of abuse to their employers?
  • What about the records?  Employers are supposed to keep the proof separate from the personnel files when the proof contains medical diagnoses.  Is it reasonable to mandate that smaller employers do this?  How would employees find out about violations?
  • Employers are not allowed to fire employees for taking sick leave, but they can fire at-will employees for a variety of other legitimate business purposes, and if they can show that those other reasons exist, then the employees are probably out of luck.
  • It might take a really long time to process a claim… is a decision for the employee, issued 3 years after the violation, worth much once it finally arrives?
  • A few years back, President Obama backed the Healthy Families Act (stuck in committee since 2009), which included a similar sick leave provision.  (Read a bit about it here.)  Is it better to go national with this kind of law?  Would it ever pass?  Consider similar efforts at the local level in Milwaukee, San Francisco, Denver, Washington D.C., Philadelphia, and New York City.  Also consider efforts at the state level in Connecticut, Massachusetts, and California.  If it’s a local issue, would businesses move out of the area to avoid compliance?

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