Drafting a provision that repeals a law is not difficult. Any type of plain instruction will be sufficient; such as “The ABC Act is Repealed.” It is important to ensure that the provision being repealed is clearly identified, including a full citation.

photo credit: BaylorBear78

There are some important rules that should be observed regarding repeals. First, repealing an amending law will not undo the amendment. For instance, if Law X reads a particular way when it is enacted, then reads a different way after it is amended by Law Z, then repealing Law Z will not cause Law X to revert back to the original reading.

In addition, bear in mind that repealing a repealing law will not undo the repeal. If Law A reads a particular way when it is enacted, then it is repealed by Law B, repealing Law B will not result in the revival of Law A.

Repealing a law will not affect the underlying liabilities that are incurred under that law while it was in effect. For instance, if a crime results from Law C and you committed that crime, you will still be held accountable for that crime, even if Law D repeals Law C.

There are actually many ways in which a law can cease operating without the need to actually repeal it. In numerous cases, laws simply run their course without being repealed. For instance, a law might apply only to a specific period of time by its terms. In other cases, a law might contain a one-time requirement only. Once that requirement has been satisfied, the law is no longer operable.

When it comes to amending a law, the process is much like editing a document. Text can be manipulated in almost any manner. Existing text can be deleted, new text can be inserted or entire blocks of text can be rewritten. Text can even be moved.

There are two ways in which the text of a law can be changed. This is by inserting text and striking text or by revising an entire block of text. The first method is known as the cut and bite method, while the second method is known as the restatement method.

To learn more about drafting effective legislation, consider taking TheCapitol.Net’s 2-day Legislative Drafting Workshop.

Reference: Legislative Drafter’s Deskbook, by Tobias Dorsey, Sec. 9.20 Repealing a Law and Sec. 9.30 Amending a Law.

For more information about drafting legislation and statutory construction, see these resources from TheCapitol.Net:

• Legislative Drafter’s Deskbook, by Tobias Dorsey
• Congressional Deskbook: The Practical and Comprehensive Guide to Congress, by Michael L. Koempel and Judy Schneider
• Live courses in Washington, DC:
  • Drafting Effective Federal Legislation and Amendments
  • Writing to Persuade: Hone your persuasive writing skills
  • Strategies for Working with Congress: Effective Communication and Advocacy on Capitol Hill
  • Capitol Hill Workshop
• Capitol Learning Audio Courses:
  • Drafting Effective Federal Legislation and Amendments in a Nutshell
  • Statutory Construction: A Primer on How to Read and Understand Statutory Text
  • Tips, Tactics & Techniques for Writing Congressional Testimony
  • Preparing for Congressional Oversight and Investigation

Law can be affected without the need to directly amend the law. The language used in one law can change the effect of language within another law. A provision that does not amend another law is known as freestanding. This means it will stand apart from other law, however, this does not mean it is interpreted apart from the other law. Consequently, it is important for at least one provision to explain the way in which all various provisions relate to one another.

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Phrases that can be used to explain the way in which one provision relates to another include:

• Except as provided in
• Subject to
• Without regard to
• Notwithstanding
• In carrying out
• In applying
• By
• Pursuant to
• Under
• In accordance with

There are also many other phrases that can be used, each offering unique advantages and disadvantages. When determining which phrase will be most beneficial, use a dictionary to assist you in determining the way in which they differ–this is the same method the courts will use when it comes time to read them.

When drafting legislation, bear in mind the dangers of using the “notwithstanding any other provision of law” term. While popular, this phrase is not an effective way to ensure that a new rule will actually prevail over an old rule. First, courts typically do not take this phrase very seriously, because the phrase is not used by Congress. While a court might attempt to provide some meaning to this phrase it can never be clear exactly what that meaning will be. The provision could very well result in disregarding either too few or too many laws. Furthermore, it might disregard laws that did not concern your client.

Whenever your client proposes the use of this phrase, it is better to identify the specific laws that concern the client and then specifically state the laws that are to be disregarded or that do not apply. In the end, this phrase, “notwithstanding any other provision of law,” is indicative of sloppy and lazy thinking. There are much better ways in which to draft legislation that will be far more effective. The final language of your drafting should be clear and precise; neither covering too much or too little.

To learn more about drafting effective legislation, consider taking TheCapitol.Net’s 2-day Legislative Drafting Workshop.

Reference: Legislative Drafter’s Deskbook, by Tobias Dorsey, Sec. 9.40 Affecting without Amending, and Sec. 9.41 Notwithstanding any other Provision of Law.

For more information about drafting legislation and statutory construction, see these resources from TheCapitol.Net:

• Legislative Drafter’s Deskbook, by Tobias Dorsey
• Congressional Deskbook: The Practical and Comprehensive Guide to Congress, by Michael L. Koempel and Judy Schneider
• Live courses in Washington, DC:
  • Drafting Effective Federal Legislation and Amendments
  • Writing to Persuade: Hone your persuasive writing skills
  • Strategies for Working with Congress: Effective Communication and Advocacy on Capitol Hill
  • Capitol Hill Workshop
• Capitol Learning Audio Courses:
  • Drafting Effective Federal Legislation and Amendments in a Nutshell
  • Statutory Construction: A Primer on How to Read and Understand Statutory Text
  • Tips, Tactics & Techniques for Writing Congressional Testimony
  • Preparing for Congressional Oversight and Investigation

The executive power of the United States is vested by the Constitution in a president.

For instance, Article II, Section 3, states that the President

shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient

The latter portion of this clause is referred to as the Recommendations Clause and it has been used by Presidents for the basis of making legislative proposals to Congress as well as for declining to make legislative proposals, even when called upon by Congress to do so.

Another clause relevant to the role of the president in Article II, Section 3, provides that the president “shall take Care that the Laws be faithfully executed.” This provision is known as the Take Care Clause. Under some laws, agencies are required to submit proposals to the President before they submit them to Congress. Congress has frequently taken action to provide agencies and federal employees with independence from the President.

There are executive branch agencies, such as the FCC, and legislative branch agencies, such as the Government Accountability Office. Both types of agencies are typically vested with the authority to execute specific laws. At the same time, agencies must abide by decisions from the judicial branch.

It is not uncommon for agencies to play a critical role in the drafting of laws. Therefore, it should not be a surprise that a large portion of legislation that is considered within the legislative process is often either drafted or influenced by employees of the executive branch.

To learn more about drafting legislation, consider TheCapitol.Net’s 2-day Legislative Drafting Workshop.

Reference: Legislative Drafter’s Deskbook, by Tobias Dorsey, Sections 10.10 and 10.11: The Role of the President in Legislation and Agencies and Tensions within the Executive Branch; United States Constitution.

For more information about drafting legislation and statutory construction, see these resources from TheCapitol.Net:

• Legislative Drafter’s Deskbook, by Tobias Dorsey
• Congressional Deskbook: The Practical and Comprehensive Guide to Congress, by Michael L. Koempel and Judy Schneider
• Live courses in Washington, DC:
  • Drafting Federal Legislation and Amendments
  • Advanced Legislative Drafting
  • Writing to Persuade: Hone your persuasive writing skills
  • Strategies for Working with Congress: Effective Communication and Advocacy on Capitol Hill
  • Capitol Hill Workshop
• Capitol Learning Audio Courses:
  • Drafting Effective Federal Legislation and Amendments in a Nutshell
  • Statutory Construction: A Primer on How to Read and Understand Statutory Text
  • Tips, Tactics & Techniques for Writing Congressional Testimony
  • Preparing for Congressional Oversight and Investigation

Legislative drafts can fail for two reasons. Some fail because of poor communication while others fail due to a lack of imagination. Whenever there is a lack of communication, in most cases the draft is simply not clear. Common sense editing can usually resolve this problem. Whenever there is a lack of imagination, the draft is simply not adequate. These types of problems are usually not as visible to the naked eye and the appropriate resolution to this problem is thinking through the policy.

photo credit: abbybatchelder

The writing portion of drafting legislation is certainly important, but the more time-consuming aspect of the task is thinking through the policy. When policy is not thought out properly, the result is additional work for judges and the distinct possibility that the policy will not work effectively. A policy that is not well thought out may not respond to the problem or it may result in unintended side effects. Controversy and confusion can occur as a result. Thinking through the policy before putting pen to paper or finger to keyboard is critical .

There are seven elements associated with thinking through policy. They are:

• Engaging the client
• Figuring out the problem and the objective
• Asking for details
• Researching the facts and law
• Analyzing alternatives
• Creating a coherent solution
• Conducting a reality check

Information can always be wrong, facts can shift and laws can overlap one another. When drafting legislation, the client has likely approached you with a prejudged sense regarding what must be accomplished. This should not be taken at face value. While you should respect it, it is imperative that you do not accept it. Clients often do not properly think through policy. They may even be operating on the recommendation of a third-party. At this point, what the client needs most from you is independent, critical thinking.

Take the time to be skeptical and question all assumptions. Imagine possible resulting scenarios. Utilize good judgment. While your client may not always have the time or the patience, you want to provide answers that your client needs to hear, not necessarily what they want to hear.

To learn more about drafting effective legislation, consider our Legislative Drafting Workshop.

Reference: Legislative Drafter’s Deskbook, by Tobias Dorsey, Section 4.0 Thinking through the Policy.

For more information about drafting legislation and statutory construction, see these resources from TheCapitol.Net:

• Legislative Drafter’s Deskbook, by Tobias Dorsey
• Congressional Deskbook: The Practical and Comprehensive Guide to Congress, by Michael L. Koempel and Judy Schneider
• Live courses in Washington, DC:
  • Drafting Effective Federal Legislation and Amendments
  • Writing to Persuade: Hone your persuasive writing skills
  • Strategies for Working with Congress: Effective Communication and Advocacy on Capitol Hill
  • Capitol Hill Workshop
• Capitol Learning Audio Courses:
  • Drafting Effective Federal Legislation and Amendments in a Nutshell
  • Statutory Construction: A Primer on How to Read and Understand Statutory Text
  • Tips, Tactics & Techniques for Writing Congressional Testimony
  • Preparing for Congressional Oversight and Investigation