Legislative Drafting Step-by-Step Arthur J. Rynearson International Law Institute Washington, D.C. Carolina Academic Press Durham, North Carolina
Copyright 2013 Arthur J. Rynearson All Rights Reserved Library of Congress Cataloging-in-Publication Data Rynearson, Arthur J. Legislative drafting step-by-step / Arthur J. Rynearson. pages cm Includes bibliographical references and index. ISBN 978-1-61163-380-1 (alk. paper) 1. Bill drafting--united States. I. Title. KF4950.R98 2013 328.73'0773--dc23 2013000071 Co-Published by: INTERNATIONAL LAW INSTITUTE 1055 Thomas Jefferson Street, NW Washington, D.C. 20007 Telephone (202) 247-6006 www.ili.org CAROLINA ACADEMIC PRESS 700 Kent Street Durham, North Carolina 27701 Telephone (919) 489-7486 Fax (919) 493-5668 www.cap-press.com Printed in the United States of America
This book is dedicated to the professional legislative drafters of Congress, who toil anonymously for the rule of law.
Contents A Note about the Author Foreword: The Five Steps of Legislative Drafting & Other Matters The Story Behind This Manual What Is Professional Legislative Drafting? What Are the Five Key Steps? What Makes a Good Legislative Drafter? The Purpose of This Manual A Note on Methodology Application to Other Legal Systems xv xvii xvii xviii xviii xix xx xxi xxi Chapter One How to Achieve the Intended Legal Effect 3 Step One: Legalize! 3 In Search of the Elusive Legal Effect 3 Part I: Establishing Legal Relationships 4 What Do Laws Do, Really? 4 Subpart A: Choosing the Subject of a Sentence 4 Seven Rules 4 Rule No. 1: Never Mention The Government! 4 Rule No. 2: Name Officials, Not Bureaucracies 4 Rule No. 3: Name Statutory Officials 5 Rule No. 4: Name Agency Heads 5 Rule No. 5: Avoid Naming the President, Usually 6 Rule No. 6: Name Congress, the Statute, or the Action Itself in Certain Circumstances 7 Rule No. 7: Treat Multiple Subjects Specially 7 Subpart B: Choosing the Mood and Tense of Verbs 7 Introduction 7 Binding Verbs 8 Mandatory or Directory Language 8 Authorizing or Delegatory Language 10 Entitlement Language 12 Self- Executing Language 13 Housekeeping Language 13 Nonbinding Verbs 15 Congressional Findings; Preambular Language 15 Hortatory Language 15 Verbs to Avoid 16 vii
viii CONTENTS Part II: Enforcing the Law 17 When Is an Enforcement Provision Necessary? 17 Menu of Enforcement Options 18 Enforcement Options 18 Criminal Penalties 18 Civil Penalties 21 Funding Cut-Offs 22 Earmarks 23 Ultra Vires Violations 24 Judicial Enforcement 24 Part III: Respecting the Constitution 26 Introduction 26 The Big Three 27 Five Constitutional Traps 28 Trap No. 1: Legislative Encroachments 28 Trap No. 2: Violations of the Nondelegation Doctrine 29 Trap No. 3: Unconstitutional Legislative Vetoes 29 Trap No. 4: Violations of the Appointments Clause 30 Trap No. 5: Violations of Federalism 31 Test Your Legalizing Skills 32 Drafting Exercise No. 1 32 Chapter Two How to Choose the Right Legislative Vehicle 33 Step Two: Formalize! 33 Part I: About Bills and Resolutions 33 What Is Legislation? 33 Types of Legislative Vehicles, Generally 34 Bills 35 Joint Resolutions 38 Concurrent Resolutions 40 Simple (One- House) Resolutions 42 Matching Language to Legislative Forms 44 Part II: Legislative Amendments 45 Introduction 45 Elements of the Legislative Amendment Form 46 Types of Legislative Amendments 47 Clean Up Amendments 49 Impact of Budgetary Scoring on Legislative Amendments 49 Converting a Bill to a Legislative Amendment 50 Part III: The Legislative Veto 50 INS v. Chadha 50 Legacy of the Chadha Decision 52 Part IV: Expedited ( Fast Track ) Procedures 54 What Are Expedited Procedures? 54 Frameworks for Using Expedited Procedures 55 Elements of Expedited Procedures 56 Model Expedited Procedures 58 Test Your Formalizing Skills 60 Drafting Exercise No. 2- A 60
CONTENTS ix Drafting Exercise No. 2- B 60 Drafting Exercise No. 2- C 61 Chapter Three How to Relate to Existing Law 63 Step Three: Integrate! 63 Part I: Three Approaches 63 Introduction 63 Statutory Construction 64 Overriding Existing Law 65 Amending Existing Law 66 What Is the Role of Freestanding Language? 67 Part II: Statutory Amendments 68 Seven Basic Rules 68 Rule No. 1: Make the Law the Subject of the Sentence 68 Rule No. 2: Amend the True Version of the Law 68 Rule No. 3: Identify the Target Law with Specificity 68 Rule No. 4: Choose the Appropriate Method of Amending 69 Rule No. 5: Amend Punctuation and Connectors, if Necessary 69 Rule No. 6: Redesignate Provisions of Existing Law, if Necessary 70 Rule No. 7: Refer to the Amended Law in the Long Title 70 Cut and Bite Amendments 70 Restatement Amendments 71 Statutory Amendments vs. Repeals 72 Statutory Amendments vs. Legislative Amendments 73 Execution of Statutory Amendments 74 Part III: Clean Up ; Transitions; Effective Dates 75 Introduction 75 Clean Up 75 In General 75 Technical, Clerical, and Conforming Amendments 75 References in Law 77 Transition Provisions 78 Effective Dates 79 Part IV: Finding the True Law to Amend 81 Introduction 81 General Principle 81 Public Laws and Acts of Congress 81 The Statutes at Large 83 The United States Code 83 How the Code Differs from Acts of Congress 85 Split Legal Status of the Code 86 Value of Prima Facie Law Titles for Finding Acts of Congress 90 Test Your Integrating Skills 91 Drafting Exercise No. 3- A 91 Drafting Exercise No. 3- B 91 Chapter Four How to Organize the Legislative Text 93 Step Four: Organize! 93 Legislative Organization, Generally 93
x CONTENTS Part I: Organizing a Bill 94 Subpart A: Simple Bills 94 Organizing a Simple Bill 94 Short Title 94 Congressional Findings 96 Purpose 97 Definitions 97 General Authority 99 Limitations 100 Administrative Provisions 101 Reporting Requirements 101 Special Audits 102 Powers Provisions, Generally 103 Powers Provisions: The Appointment and Compensation of Government Personnel 104 Sense of Congress 105 Authorization of Appropriations 106 Effective Dates and Termination Dates 108 Subpart B: Complex Bills 109 Organizing a Complex Bill 109 Part II: Organizing a Section 112 Introduction 112 Subdividing a Section 112 Tax Style 114 A Tale of Three Sections 115 Hypothetical No. 1: A Single Sentence Section with Grammatical Clauses 115 Hypothetical No. 2: A Multi- Sentence Section with No Grammatical Clauses 115 Hypothetical No. 3: A Hybrid Section Combining Hypotheticals Nos. 1 and 2 117 The Confusion of Sections Making Statutory Amendments 118 Making Connections Within a Section 119 Connector Style 119 List Style 120 Part III: Cross- References 121 What Is a Cross- Reference? 121 Why Make a Cross- Reference? 121 Rules for Drafting Cross- References 121 Definitions as Alternatives to Cross- References 122 Test Your Organizing Skills 123 Drafting Exercise No. 4- A 123 Drafting Exercise No. 4- B 123 Chapter Five How to Achieve Clarity 125 Step Five: Clarify! 125 Part I: Objectives 125 Confronting Twin Evils 125 Eliminating Ambiguity 125
CONTENTS xi Eliminating Imprecision 126 What to Do about Vagueness 126 Void for Vagueness Doctrine 127 Part II: Twelve Rules for Drafting Clearly 127 Introduction 127 Rule No. 1: Present Tense 127 Rule No. 2: Active Voice 128 Rule No. 3: Singular Subjects 128 Rule No. 4: Place Modifiers Side- by-side with Modified Text 129 Rule No. 5: Avoid Long Sentences 130 Rule No. 6: Avoid Combining Legal Concepts 130 Rule No. 7: Define Terms 131 Rule No. 8: Use Words Consistently 133 Rule No. 9: Choose Basic Words, Essential to Meaning 133 Rule No. 10: Write Formally, Not Conversationally 134 Rule No. 11: Gender- Neutral Expression 135 Rule No. 12: Punctuate for Meaning 136 Part III: Problem Words 137 Introduction 137 Above, Below, Aforementioned, Heretofore, Hereafter, Thereafter, Thereto, Therefore 137 act, state 137 Assure, Insure 138 Authorities 139 By, Within 139 Commencing 140 Currently, Recently, Soon 140 Deems 140 Effects 141 Execute, Implement 141 Includes but Not Limited to 142 Person 142 Powers 143 Prior to, Subsequent to 143 Program 144 : Provided, That 144 Pursuant to 145 Said, Such 145 Up To 146 Which 146 Part IV: Outsmarting Statutory Interpretation 147 Introduction 147 American Theories of Statutory Interpretation in Brief 147 Drafting for the Intentionalist Judge 149 Drafting for the New Textualist Judge 150 Canons of Statutory Construction 151 Presumptions 153 Presumption against Implied Repeal 153 Presumption against Retroactivity 153
xii CONTENTS Presumption in Favor of Severability 154 Presumption against Federal Preemption 155 Presumption against Abrogation of State Sovereign Immunity 155 Presumption against Extraterritoriality 156 Presumption against Superseding a Treaty 156 Overuse and Misuse of Statutory Construction Sections 157 Part V: Myths about Legislative Drafting 158 Introduction 158 Why Aren t the Laws Written in Plain English? 158 Why Are the Laws So Hard to Read? 158 Why Is Legislation So Long? 159 Isn t Legislative Drafting Mind-Numbing? 160 Test Your Clarifying Skills 160 Drafting Exercise No. 5 160 Postscript Legislative Drafting and the Rule of Law 161 Why Draft Correctly? 161 Democratic Values to Be Found in Law 161 How the Five- Step Drafting Process Promotes Democratic Values 162 The Challenge to the Drafter 163 Conclusion 164 Appendices Appendix A The United States Legislative Process: A Drafter s View 167 In the Senate 168 Introduction of a Senate Bill 168 Referral to a Senate Committee 170 Senate Committee Action 172 Senate Floor Action 174 Unanimous Consent Agreements 177 Senate Passage 178 Messaging to the House of Representatives 179 In the House of Representatives 179 Initial House Action 180 Referral to a House Committee 181 House Committee Action 182 Rules Committee Action 183 Committee of the Whole House 184 Other Floor Procedures 186 House Passage 187 Resolution of Differences 188 Conference Committee 188 Amendments Between the Houses 191 Enrollment 192 Presidential Action 192 Veto Overrides 193 Official Custody of the Law 193
CONTENTS xiii Appendix B House and Senate Legislative Forms 195 1 Legislation Originating in the House of Representatives 195 A Bill 195 Joint Resolution 196 Concurrent Resolution 197 Resolution 198 Legislative Amendment 199 2 Legislation Originating in the Senate 200 A Bill 200 Joint Resolution 201 Concurrent Resolution 202 Resolution 203 Legislative Amendment 204 3 Legislative Stages of the Same Bill 205 A Bill, as Introduced in the Senate 205 A Bill, as Reported to the Senate 206 A Senate-Passed Bill in the House 207 Amendments of the House to the Senate Bill 208 Conference Report 209 Public Law 210 Appendix C Drafting Exercises: The Answers 211 Drafting Exercise No. 1 211 Drafting Exercise No. 2- A 212 Drafting Exercise No. 2- B 213 Drafting Exercise No. 2- C 214 Drafting Exercise No. 3- A 215 Drafting Exercise No. 3- B 216 Drafting Exercise No. 4- A 217 Drafting Exercise No. 4- B 219 Drafting Exercise No. 5 220 Acknowledgments 221 Table of Cases 223 Index 225
A Note about the Author Arthur J. Rynearson is the former Deputy Legislative Counsel of the United States Senate. For more than a quarter of a century, Mr. Rynearson drafted legislation in the nonpartisan Legislative Counsel s Office of the Senate. He has drafted thousands of bills, resolutions, and amendments at every stage of the legislative process, including the preparation of committee reported bills and conference reports. Mr. Rynearson has taught legislative drafting as adjunct professor of law at the Washington College of Law at American University, Washington, D.C., and as faculty of the International Law Institute of Washington, D.C. A graduate of Cornell University Law School and Hamilton College, Arthur is a member of the District of Columbia Bar. xv