The Legislative Drafter's Desk Reference
The Legislative Drafter’s Desk Reference is a practical guide to the drafting of federal and state laws for law and public policy students, and legal, lobbying, and legislative professionals. It contains a treasure trove of information that sets forth solid drafting principles in language that is easy to understand. It offers an introduction to the concept and the process of bill drafting along with step-by-step details of all the issues associated with crafting legislative bills or agency regulations. The new and updated second edition captures how the work of legislative drafting has changed dramatically since the first edition because of the impact of word processing and the Internet in the drafting process. It features: Chapter length treatments of the issues associated with crafting bill preliminaries, ...
- Front Matter
- Back Matter
- Subject Index
- Chapter 1: Approaching the Subject
- Chapter 2: What is Legislative Drafting?
- Chapter 3: The Drafting Process Itself
- Chapter 4: Defining the Problem and Its Solution
- Chapter 5: Searching Out the Collateral Questions
- Chapter 6: Organizing the Bill
- Chapter 10: General Considerations
- Chapter 11: The Introductory Provisions
- Chapter 12: The Central Provisions
- Chapter 13: The Caboose
- Chapter 14: General Considerations
- Chapter 15: The Basic Amendatory Tools
- Chapter 16: Amendatory Form and Style
- Chapter 17: Organization of Amendments
- Chapter 18: Amendatory Cautions
- Chapter 19: General Considerations
- Chapter 20: Breakdown, Designation, and Headings of Subdivisions
- Chapter 21: Grammatical Considerations
- Chapter 22: Word Usage in General
- Chapter 23: Devices Especially Suited for Coping with Complexity
- Chapter 24: References to Statutory Provisions
- Chapter 25: References to Nonstatutory Provisions
- Chapter 26: Dealing with Effective Dates
- Chapter 27: Other Usages and Considerations
- Chapter 30: Typography and Typographical Terminology
- Chapter 31: Locations and Forms of Existing Federal Law
- Chapter 32: Legislative Vehicles in Congress
- Chapter 33: Federal Drafting Styles
- Chapter 34: Federal Parliamentary Considerations
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Library of Congress Cataloging-in-Publication Data
Filson, Lawrence E.
Legislative Drafter's desk reference / Lawrence E. Filson and Sandra L. Strokoff. — 2nd ed.
Includes bibliographical references and index.
ISBN 978-0-87289-411-2 (hardback : alk. paper)
1. Bill drafting–United States. I. Strokoff, Sandra L. II. Title.
List of Figures and Tables[Page vii]
- Figure 23.7 Table from the Higher Education Act of 1965 324
- Figure 30.8 Edited Text with Proofreader's Marks 409
- Figure 31.2 Example of a Slip Law 412
- Figure 31.4 Provisions in Positive-Law Titles (title 11 and title 28) of the United States Code 417
- Table 31.4 Titles of the United States Codes 419
- Figure 31.5 Provision in a Nonpositive-Law Title of the United States Code 421
- Figure 32.2 Bill Introduced in the House (First Two Pages Only) 432
- Figure 32.3 Joint Resolution Introduced in the House 435
- Figure 32.4 Concurrent Resolution Introduced in the House 437
- Figure 32.5 Simple Resolution Introduced in the Senate 439
- Figure 32.8A Reported Bill in the House (First Two Pages Only) 446
- Figure 32.8B House Report Showing an Amendment by a Committee (First Two Pages Only) 450
- Figure 32.9A House Engrossed Bill (First Two Pages Only and Clerk's Attestation) 453
- Figure 32.9B Senate Engrossed Amendment (First Two Pages Only and Secretary's Attestation) 455
- Figure 32.10A House Complete-Substitute Conference Report (First and Last Pages) 460
- Figure 32.10B House Numbered-Amendments Conference Report (First and Last Pages) 462
- Figure 32.11A Enrolled Bill (First Page Only) 466
- Figure 32.11B Bill as Enacted in Slip Law Form (First and Last Pages) 467 [Page viii]
- Figure 32.12 House Concurrent Resolution to Correct Enrollment 469
- Table 33.6 Superior Headings 491
- Figure 33.6 Literal Examples of Superior Headings 492
- Figure 34.3 “Special Rule” for Consideration of a Bill in the House 503
- Figure 34.4 Basic Amendment Tree 513
The first edition of The Legislative Drafter's Desk Reference, published in 1992, had a mission: to present solid drafting principles while recognizing and addressing the problems that the typical legislative drafter faces every day.
This second edition espouses the same objectives as the first. For many people, how a bill is drafted remains a mystery, engendered in no small part by the guarded anonymity of the professional “ghost writers” of Federal legislation—in the Offices of the Legislative Counsel of the U.S. House of Representatives and the Senate. A legislator who introduces, sponsors, or supports a bill, or even an outsider who promotes it, is almost certain to claim authorship of the bill; most are unaware that what is being claimed is an authorship of ideas only.
But how is the actual language of a bill created? What exactly does the writer do to make the words appear, and how do the writer's activities fit into the overall legislative picture? This book sets about answering these questions, clarifying the responsibility of the drafter: to convert the sponsor's initial generalities into specifics; to fill any gaps in the proposal as it was originally presented; to raise and have answered any substantive, legal, administrative, and technical questions that may arise; to arrange the bill's elements in a way that will effectively communicate its message to the intended audience; to do all these things without leaving any loose ends; and to convert the end product into the proper legislative form and style.
Legislative drafting should be thoroughly understood by anyone with a serious interest in how the legislative process works. It is a highly specialized form of writing, and a demanding one, but it is a skill that can be acquired. This book attempts to ease the learning process.
Some individuals draft bills on a regular basis as an integral part of the legislative process, but many others also participate. Officials in the executive branch, as well as lobbyists and other outside groups, for example, frequently need to formulate legislative proposals or at least be able to understand and evaluate proposals already on the table. And [Page x]drafters at the State and local levels need a familiarity with the ins and outs of drafting at the Federal level, because State objectives can often be best achieved through modifications of the Federal law (or can be achieved, through modifications of the State law, only after particular changes have been made in the Federal law). In addition, the drafting principles in this book can easily be applied to drafting of State or local law.
The ability to draft well will increase one's ability to identify problems in legislation and to comprehend legislative language. These skills are important to anyone who needs to understand what a particular legislative proposal would do to or for some group or interest and who wants to know how to enhance the proposal's prospects.
Anyone who needs to understand legislation—whatever the reason—can benefit from a better understanding of the drafting process; and providing that is what The Legislative Drafter's Desk Reference is all about.
This book's primary objective is to provide an all-purpose drafting reference text for individuals who, by choice or necessity, may be called upon to draft legislation and to serve the needs of those individuals without regard to their background, the setting in which they operate, and the extent (if any) of their previous training. The book is aimed at experienced and occasional drafters alike.
A second, but perhaps equally important, objective is to paint a realistic and meaningful picture of what legislative drafting involves and how it fits into the legislative process as a whole. In this sense, it is intended for individuals who simply have a serious interest in government and are seeking a better understanding of the overall process as well as for individuals who actually draft bills.
This new edition updates the first edition in a number of ways. First, as Larry Filson recognized in the previous edition, the examples and models used to illustrate the drafting process assumed the continued existence of the rules, procedures, and forms in effect at the time, but these things change. Although the points made by using an outdated example or model may still hold, many of the examples or models he used have changed or have even been repealed. This edition substitutes new examples for obsolete ones.
Second, this edition modifies some of the principles that have evolved over the years. One example is the Roman rule, addressed in chapter 8.
But the primary objective of this edition is not to refute the solid drafting principles already in the book but to expand upon them. One way [Page xi]I have done this is by providing more statutory examples and case studies, at times in a politically charged environment, to illustrate those drafting principles, or to illustrate how the drafting of the examples can be improved by applying the drafting principles. Another is by noting new statutory requirements that have widespread application (for example, provisions in title 5, United States Code, that apply to all executive branch agencies). A third is by discussing additional issues, not addressed before, that most drafters commonly face (as in the section on civil and criminal sanctions in chapter 12).
The major addition, however, lies in the recognition of the role of the courts in statutory drafting. Viewed one way, the legislative and judicial branches of government are in an ongoing dialogue with each other—the judicial branch is called upon to interpret legislation, and the legislative branch may respond by amending a law to address a judicial interpretation (whether based on the Constitution or otherwise). The courts apply certain principles in interpreting statutes and reach decisions after deliberating possibilities that the legislature, in the interests of political expediency, may not even have considered. Because of these realities, the drafter's ability to anticipate how a court may approach a statute when the statute is being drafted may obviate litigation or at least indicate to the courts how to interpret a provision of law should it come before them.
Therefore, throughout this edition are citations to court decisions directly relevant to the way a statute is drafted: the discussion of the RICO statute in chapter 4 and the discussion of “willful” in criminal statutes in chapter 12 are two examples.
In addition, there is a new chapter (28) devoted to principles of statutory construction, and another chapter (29) on significant Federal cases that have a direct bearing on how statutes should be drafted.
This edition also addresses some of the concerns of the nonfederal drafter—whether at the State or local level—that arise by virtue of State constitutional requirements and the relationship between the Federal Government and the States under the Constitution of the United States. A separate chapter (35) on drafting nonfederal law has been included, in addition to references to State requirements in other chapters.
And finally, to illustrate how the drafting principles in this book can be applied to the drafting of regulations, chapter 36 attempts to do so by example, critiquing regulations issued pursuant to a Federal statute, the Foreign Narcotics Kingpin Designation Act.
The first edition was published before the widespread availability of documents in electronic format and the explosion of sources of [Page xii]information on the Internet. This transformation necessitated a number of changes throughout the book.
Several useful texts on legislative and legal drafting are cited throughout the book in the discussion of its drafting principles, including:
- The Fundamentals of Legal Drafting, by Reed Dickerson (to be cited as Dickerson), Little, Brown (1986).
- Drafting Federal Law, by Donald Hirsch (to be cited as Hirsch) published for the Department of Health and Human Services, Office of the General Counsel, Legislation Division (1980), and (with revisions) for the use of the Office of the Legislative Counsel, U.S. House of Representatives (1989).
- Style Manual: Drafting Suggestions for the Trained Drafter (to be cited as HOLC)—the everyday working manual of the Office of the Legislative Counsel, U.S. House of Representatives, published by that office in 1995.
- Legislative Drafting Manual, Office of the Legislative Counsel, United States Senate (to be referred to as SOLC)—the everyday working manual of the Office of the Legislative Counsel, U.S. Senate, published by that office in 1997.
Two additional books are cited numerous times:
- The Legislative Drafter's Deskbook: A Practical Guide, by my colleague Tobias A. Dorsey, published by http://TheCapitol.Net, 2006.
- Legal, Legislative, and Rule Drafting in Plain English, by Robert J. Martineau and Michael B. Salerno, published by Thompson/West, 2005.
These works are referred to for the views they espouse about drafting, although they may not agree with one another or with the views expressed in this book; however, the reader should have the opportunity to see what others have to say about the subject.
The main portion of this book—that is, everything after the introductory material contained in Part I—consists of eight parts:
Part II (chapters 4 through 6) deals with the preliminary stage of any drafting operation—the things that have to be done before the actual writing begins: pinning down the sponsor's problem and its intended solution, identifying and dealing with any collateral questions that the solution may raise, and organizing the bill.[Page xiii]
Part IV (chapters 10 through 13) begins the more specific treatment of the writing process, enumerating the different provisions that might be found in a typical freestanding bill and discussing their form and style and the alternatives available to the drafter.
Part V (chapters 14 through 18) deals with the writing of amendatory bills, addressing the basic amendatory forms and styles, the proper organization and arrangement of amendments, and a number of problems unique to the amendatory approach.
Part VI (chapters 19 through 27) covers legislative style and usage generally, setting forth a list of the drafting rules, principles, and techniques that would normally apply without regard to the type of bill involved or its setting.
Part VII (chapters 28 and 29) deals with the role of the courts in legislative drafting, addressing rules of statutory construction and significant case law that the drafter should be mindful of in drafting legislation.
Part VIII (chapters 30 through 34) addresses matters of form, style, and procedure that are important in Federal bill drafting but that could not appropriately be included in the preceding parts because of the wide variety of circumstances and requirements in the different States.
When reading this manual, you should keep in mind the following points:
- In a number of instances the same point is made, or the same steps in the legislative process are retraced, in two or more places. This is intentional; it is done so that readers who are interested only in the subject covered by a particular chapter can get the full picture without having to look elsewhere.
- Each of the examples and models in this book illustrates a particular point. Each should be read as addressing only that point and should not be taken as an endorsement or criticism of anything else.
- If an example or model used becomes obsolete because a law changes, it is hoped the point of the example or model will still be valid.
In legislative drafting as in other forms of prose composition, any standard dictionary, read in conjunction with The Chicago Manual of Style or its equivalent, should be regarded as the basic authority on editorial style. Editorial style primarily involves such things as spelling, capitalization, hyphenation, and punctuation, as well as the uses of words and numerals in particular circumstances.
When a more specialized manual on the writing or printing of public documents in the context involved (such as the United States Government Printing Office Style Manual or one of its State counterparts) provides a different rule, however, that rule should be followed instead.
And when the unique needs of legislative drafting demand the application of a rule that is different from any of the cited authorities, that rule should be applied even if it violates otherwise established practices.
The style in which this book is written—like the style in which legislation would normally be written—reflects this hierarchy of choices. It generally follows the dictionary and the Chicago Manual, but it deviates from them (for example, by capitalizing governmental terms such as State, Federal, and President) when that is what the GPO Style Manual does. It deviates from all of the cited authorities whenever that is the only way to meet the drafter's overriding need for absolute clarity and precision (see chapters 21, 22, and 27 for examples).
In an ideal world you would always be able to draft under circumstances that give you every opportunity to do it right, with plenty of time and resources and with no possibility of having overlooked anything important. As a practical matter, however, this does not occur often.
For reasons quite beyond your control you must often be satisfied with doing the best you can in the hope that your efforts will be sufficient to accomplish the desired result without causing the foundations of the Republic to crumble. Always remember that you will almost never have the option of flatly refusing to be of assistance to a sponsor simply because you have problems—even insoluble ones—so you need to know how to face those problems cheerfully and with some hope of success. This book will try to suggest ways of handling the difficulties you are likely to encounter.
There are horror cases, of course—you may find yourself responsible for a massive and complex piece of legislation, or floundering in the middle of a legislative storm, or dealing with frantic sponsors going in opposite directions—but this book should help you get through the ordeal. In most cases the outlook is not so forbidding; most of your [Page xv]drafting assignments will likely involve one-shot proposals of limited scope, being developed in friendly territory.
In any case, you should take comfort in the thought that the legislative process is designed to be self-correcting in the sense that early mistakes and technical shortcomings can be taken care of, one way or another, in the later stages.Acknowledgments
Many individuals have contributed to this edition. My deepest gratitude goes foremost to Larry Filson, my former colleague in the Office of the Legislative Counsel of the U.S. House of Representatives, who created the stellar text with which I had the opportunity to work and who taught me a great deal about approaching legislative drafting.
I wish to thank many of my colleagues in the Offices of the Legislative Counsel of the House and the Senate, who always responded when I asked their advice about particular passages—Ira Forstater, Rosemary Gallagher, Mark Synnes, Wade Ballou, Bob Weinhagen, Paul Callen, Doug Bellis, Jim Grossman, Greg Kostka, and Susan Fleishman—as well as my longtime Senate counterpart and “partner in crime” on trade law, Polly Craighill. Special thanks are due to Larry Johnston, who reworked the many outdated passages from the Social Security Act, and Ed Leong and Steve Cope, both of whom waded through many chapters and provided invaluable suggestions.
I am deeply grateful to Charlie Johnson, former House Parliamentarian, and Muftiah McCartin, former Assistant Parliamentarian, for their assistance on the matters of procedure addressed in the book.
I also wish to thank Frank Burk, former Legislative Counsel of the U.S. Senate, who was my inspiration for the chapter on significant case law for the drafter.
Many thanks to Elaine Strokoff and Roslyn Sheley for their respective suggestions on improving “readability.” To my friend of 44 years, Betsy Raburn, who patiently read through the entire text from “across the pond” and offered countless useful suggestions to improve it, my heartfelt thanks and appreciation.
Special thanks also to Pope Barrow, the Legislative Counsel of the U.S. House of Representatives, for working tirelessly to create a [Page xvi]collegial, supportive work environment to ease the demands of the legislative process.
For their omnipresent love and support I thank my children, Jennifer and Jonathan Gordon.
And last, but hardly least, thanks to my husband, Jay Gordon, whose constant love, support, assistance, and encouragement have made this project possible. To him this edition is dedicated.
About the Authors
Appendix: A Quick Guide to The Legislative Drafter's Desk Reference[Page 549]
This guide is intended to lay out some of the basic principles of this book. However, it is an overview only, and should not be the only part of this book a drafter uses in tackling a drafting project. Rather, it should serve as a checklist from which the reader can consult the relevant sections of the book (references in this guide) that address each subject in depth.
- Bill. Proposed legislation, whether a bill, joint resolution, or resolution.
- Sponsor. The individual or entity who requests the drafter to prepare the bill, who determines its policy, and who will be responsible for proposing or introducing it.
- Policy. The sponsor's basic objective in a bill (the “main thrust”), including the sponsor's intent with respect to any subsidiary or collateral questions that may be involved in achieving the basic objective.
- Setting and context. The situations in which drafters operate (procedural, constitutional, institutional, stylistic) that determine drafting choices.
- Audience. The people or entities to which a bill is primarily directed.
- Steps in the drafting process
- Understanding the problems leading to the sponsor's request for legislative relief.
- Understanding the sponsor's policy to deal with those problems. Exploring with the sponsor possible ways of achieving the goal.[Page 550]
- Identifying and dealing with legal and other problems involved, including subsidiary and collateral questions (see chapter 5), effect on existing law, and unintended consequences.
- Deciding upon the approach (general or narrow, self-executing or delegating to administrative agencies) and organization of the bill.
- Taking into account the legislative context—the legislative vehicle to be used and any parliamentary or constitutional restrictions.
- Writing the bill.
- Carrying out steps (a) through (f) with impartiality.
- Decide how to organize the bill
Example of a model bill.
SECTION 1. SHORT TITLE.
SEC. 2. FINDINGS AND PURPOSE.
SEC. 3. DEFINITIONS.
SEC. 4. PRINCIPAL OPERATING PROVISIONS.
SEC. 5. SUBORDINATE OPERATING PROVISIONS.
SEC. 6. PROHIBITED ACTS AND MAJOR EXCLUSIONS.
SEC. 7. SANCTIONS.
SEC. 8. GENERAL ADMINISTRATIVE AND PROCEDURAL RULES.
SEC. 9. JURISDICTION OF COURTS.
SEC. 10. RELATIONSHIP TO OTHER STATUTES.
SEC. 11. REPORTS TO CONGRESS.
SEC. 12. AUTHORIZATION OF APPROPRIATIONS.
SEC. 13. SAVINGS PROVISIONS.
- Use modular construction generally, that is, each component and subdivision of a bill should be dedicated to a single subject and contain all the substantive provisions readers need to understand the subject.
- Split provisions and amendments are an exception to modular construction, as when an amendment to a law appears in one place in a bill and the effective date of the amendment is in another.
- General principles in drafting
- Use everyday English in (preferably) short sentences.
- Use a consistent style and an organization that gets the message across.[Page 551]
- Apply the Roman rule, but not at the expense of clarity (see chapter 8).
- Maximize readability, but clarity is paramount. For complex concepts, consider using tables, tabulated sentences, and incorporations by reference (9.4; see chapter 23).
- Know the accepted statutory format of the jurisdiction in which you are working.
- Be aware of parliamentary restrictions in different legislative settings.
- Models can be useful as a starting point.
The long title, enacting (or resolving) clause, first section, short title.
- Use definitions for any word that may be unfamiliar, unclear, ambiguous, or used in a way different from its dictionary meaning (for forms and cautions, see 11.7).
- Avoid putting substantive rules in the definitions.
- Avoid artificial definitions.
- Be aware of across-the-board statutory definitions (19.5; 35.3).
- Central provisions
- The key operating provisions, that carry out the bill's principal objective, or state the “general rule”.
- Exceptions to the general rule, and special rules for applying the general rule to specific circumstances. Ensure that the relationship between the general rule and the exceptions and special rules is clear (through, e.g., placement or cross-references) (see 12.3 and 22.4).
- Any structural changes to agencies carrying out the bill's policy (12.4).
- Funding (12.5).
- Any entitlements (12.6).
- Reporting requirements (12.8).[Page 552]
- Administrative and judicial review provisions. Rulemaking, adjudications, authority to issue rules; applicability of administrative procedure and other provisions of title 5, U.S.C. to agencies generally (12.9).
- Sanctions (12.10).
- Criminal. Who is subject to the provision, what is unlawful, what is the penalty, and what is the state of mind? Avoid using “willful”.
- Civil. Clarify who is to impose civil penalties; constitutional issues if the penalty is criminal in nature.
- Termination or withholding of funds.
- Technical and conforming amendments.
- Substantive amendments to other laws.
- Provisions modifying congressional procedures (12.14).
- Special rules apply to appropriations bills and riders (12.13 and 34.5–34.6).
- The Caboose
- Authorization of appropriations.
- Effective-date provisions.
- Unnecessary if there is a default effective date (e.g., date of enactment) (13.2).
- Delayed effective dates (26.2).
- Retroactive effective dates (26.3).
- Event-related effective dates (26.4).
- Hybrids (26.5).
- Internal effective dates (26.8).
- Effective dates for amendments (16.5).
- Transitional provisions (13.3).
- Savings clauses (13.4).
- Preemption provisions (13.5) (express, conflict, field preemption).
- Sunset provisions (13.6).
- Severability clauses (13.7).
- Check the Bill for Sources of Ambiguity (see 13.8 for a checklist).
- Amendatory provisions
- There are 2 parts to every amendment—the vehicular language (“The ABC Act is amended by inserting after section 4 the following new section”), and the language constituting the amendment (i.e., the new section inserted).
- In a bill, early amendments should not anticipate later ones, but later amendments should assume the enactment of earlier ones (14.4).
- Rules for amending a bill in Congress. Use the imperative mood; describe the target by page and line numbers if available (14.6).
- Amendatory tools
- Cut-and-bite approach (15.2).
- Amendment by restatement (15.3).
- Repealers (15.5).
- Amendatory form and style
- Amendatory terminology. Use “striking” and “inserting;” try to narrow the target; be precise in describing amended material; use a consolidated reference if there are many amendments to one law (16.1).
- Use the correct amendatory punctuation (quotation marks have special rules (16.2).
- Be literal. The material must appear exactly as it will look in the law, with correct punctuation and margins (16.3–16.4).
- There are special usages for long and short titles, and tables of contents, for amendatory bills (16.5).
- Make sure amendments have an orderly arrangement (17).
- Amendatory cautions
- Redesignations and the need for precision (18.1).
- Implied amendments and their risks (18.2); avoid “notwithstanding any other provision of law”.
- Amend an amendatory law only in specific circumstances (18.3).
- Do not amend a nonpositive-law title of the U.S. Code.
- Drafting principles
- Be consistent.
- Use the same style and form throughout the bill.
- Use the same words to describe the same concept throughout the bill.
- Use rules of construction, if necessary, to achieve consistency (19.5).
- Avoid ambiguity (words or context that is capable of more than one interpretation) (19.4).
- Beware using vague or general terms (uncertainty arising from the use of a broad term) (19.4).
- Avoid using undefined adjectives.
- Architecture (20)
- The numbered section is the fundamental division of all statutes.
- Section subdivisions. Subsection ((a), (b), (c)), paragraph ((1), (2), (3)), subparagraph ((A), (B), (C)), clause ((i), (ii), (iii)), subclause ((I), (II), (III)), [item ((aa), (bb), (cc))], [subitem ((AA), (BB), (CC))] [avoid bracketed items].
- Use headings for each senior component, and for section and (to the maximum extent possible) its subdivisions.
- Use the singular, in the present tense (but certain uses of “shall” are okay (21.3)), in the active voice and indicative mood (but certain uses of “shall” are okay (21.5).
- Use ordinary rules of punctuation, including the serial comma, but note special rules for using colons and dashes (with lists), and (in amendatory legislation) periods and quotation marks (21.6).
- Capitalization (21.7) of certain terms varies among jurisdictions.
- “That” is defining; “which” is nondefining and informative (21.8).
- Use “who” and “whose” to refer to persons, with certain exceptions (21.9).[Page 555]
- Use of “and” and “or” must be clear from the context (21.10).
- Split infinitives and sentence-ending prepositions are usually okay to use (21.11).
- Word usage
- Use shall to require an action, and may to authorize it; avoid ambiguity by the context (22.2).
- Use may not to prohibit an act. Say “A person may not do X”, rather than “No person may do X;” “shall not” can be ambiguous (22.2).
- Do not use “shall” if there is no duty to act (22.2).
- Use of “such” to refer to something previously mentioned is okay, but “that” is less archaic (22.3).
- Use cross-references to clarify relationships between provisions (22.4).
- Use modifiers and explanatory phrases with caution (22.5).
- Vest functions in the head of the agency, not the agency itself (22.6).
- “Person” includes corporations and other entities as well as individuals (22.7).
- Be precise in describing time periods (22.9). Do not say “from”, “to”, “until”, or “by” a certain date or “between” one date and another; say “during the period beginning on” X date “and ending on” Y date.
- Use “deeming” only to create a legal fiction; use “treating” to establish a rule of law; use “considering” to indicate an exercise of judgment or discretion (22.11).
- Use live words instead of gerunds, participles, or noun forms, e.g., “consider” instead of “give consideration to” (22.12).
- Do not use duplicative pairs of words, like “each and every”, “force and effect”, “null and void”, or pairs of words where one includes the other, like “means and includes” (22.13).
- Use “means” when one thing is identical or synonymous with the other; use “includes” when the second thing is part of the first; avoid “includes, but is not limited to”, because the second phrase is redundant of the meaning of “includes” (22.15).
- Use “if” rather than “when” or “where” to express a condition (22.18).[Page 556]
- Avoid archaic usages like “herein”, “thereto”, “whereof”, “aforementioned;” others (like “thereafter”) are acceptable (22.19 has a list).
- “Respectively” and “as the case may be” are important to express relationships between lists (22.20).
- Do not use “above”, “below”, or “hereafter” to direct the reader to another place in the bill (22.21).
- Use “percent” instead of “per centum”.
- Put the negative in the right place (22.23).
- If you divide a thing into two parts, do not leave out the piece in the middle (e.g., if you say that rule X applies “before May 1” and the rule Y applies “after May 1”, you have left no rule to apply on May 1) (22.23).
- Devices to deal with complexity
- Definitions (23.2).
- Incorporation by reference, but there is some ambiguity in incorporating another law (23.3).
- Tabulated lists (23.4).
- Tabulated sentences (23.5).
- Parenthetical expressions (23.6).
- Tables, formulas, and other graphic aids (23.7).
- References to statutory provisions
- Refer directly to positive-law titles of the United States Code (24.2).
- If a law is not in a positive-law title
- refer to its short title (24.3); or
- if there is no short title, refer to its long title, Public Law number, or enactment date (24.4).
- Do not add “as amended” after naming an Act (24.5).
- Use U.S. Code citations for informational purposes (24.6).
- When referring to another unit within an Act or section, do not add “of this Act” or “of this section” (24.7).
- Use composite references (section 5(b) (2) (A)) rather than strung out references (subparagraph (A) of paragraph (2) of subsection (b) of section 5), with some exceptions (24.8–24.9).[Page 557]
- Use a consolidated reference if making many amendments to one law (24.10).
- Abbreviated references (“such”, “that”) to provisions already referred to are useful (24.11; 27.7).
- References to nonstatutory provisions (Executive orders, regulations, treaties, legislative rules, other public documents) (see 25.1–25.5).
- Other usages
- When referring to numerals, use figures rather than words (with some exceptions) (27.1).
- Do not use provisos (with limited exceptions) (27.2).
- Use gender-neutral terms (27.3).
- Do not use abbreviations (but parenthetical U.S. Code citations are okay) (27.4).
- Be careful when expressing the rounding of numbers (27.5).
- An “Act” refers to something enacted into law; a “bill” remains a bill until enacted; a “joint resolution” is always referred to as that.
- Statutory construction; canons of statutory construction (28.1–28.10)
- Textual canons (based on the words of the statute) (28.4).
- Extrinsic source canons (based on sources outside the statute) (28.5).
- Substantive canons (based on common law, other statutes, the Constitution) (28.6).
- Statutory conflicts, precedent, reenactment (28.7).
- Canons and appropriations Acts (28.8).
- Constitutional and other considerations
- Limitations of the Commerce Clause as a justification for Federal legislation (29.3).
- Limitations on applicability of Federal statutes to State governments (29.4).
- Other separation of powers issues (29.5).
- Legislative vetoes are unconstitutional.[Page 558]
- The President alone has the power to appoint officers; the President's power to dismiss officers of independent agencies is limited.
- The Supreme Court is the arbiter of the constitutionality of statutes.
- [Page 558]
- The court will defer to agency interpretations of statutes to different degrees (under Skidmore and Chevron), depending on the nature of the delegation of rulemaking to the agency under the relevant statute and the procedures followed by the agency in issuing rules (29.6).
- Typography (30.1–30.8)
- Typography terminology. Full measure, paragraphed, flush, cut-in, run-in, dropped-down (30.2).
- Type characteristics (30.3).
- Marking copy (30.8).
- Locations and forms of existing law
- Slip laws. First official publication of a statute; of limited usefulness to determine the current state of the law (31.2).
- Statutes at Large. Permanent chronologic collection of the laws; also of limited usefulness to determine the current state of the law (31.3).
- United States Code.
- Positive-law titles. Enacted by Congress; can be referred to and amended directly (31.4).
- Nonpositive-law titles. Not an official source of the law and cannot be amended; useful for amendment history of statutes (31.5).
- Compilations of laws. An invaluable tool for the drafter, who needs to know the current state of the law (31.6).
- Tracking omnibus budget and appropriations bills is more difficult (31.8).
- Federal regulations. Changes are published daily in the Federal Register; codified in the Code of Federal Regulations (31.9).[Page 559]
- Legislative vehicles in Congress
- Bills, joint resolutions, concurrent resolutions, simple resolutions (32.2–32.5).
- Amendments to bills (32.7).
- Reported bills. Ramseyer rule (showing changes to existing law); parliamentary procedure needs to be determined in the case of bills referred to and reported from more than one committee (32.8).
- Engrossed bill. Bill as passed by the House or the Senate (32.9).
- Conference report. Report of a conference committee to address differences between House and Senate versions of a bill, including language agreed upon and matters reported in disagreement (32.10).
- Enrolled bill. Version presented to the President for signature or veto (32.11).
- Correcting resolutions. Concurrent resolutions directing that, in enrolling a bill, specified errors be corrected (32.12).
- Federal drafting styles: traditional, United States Code, revenue, modified revenue, maverick (33.1–33.8)
- Federal parliamentary considerations
- Subject to subsection (b), parliamentary rules affect how to draft a proposal, including the following matters:
- Referral of a bill to committee (34.2).
- Committee procedure (34.3).
- The “rule” under which a bill is to be considered on the House floor (34.3).
- Preparation of a motion to recommit (34.3).
- Preparation of a motion to suspend the rules (34.3).
- Preparation and form of amendments (no amendments in the third degree are permissible) and when they can be offered; amendments in committee and the floor must be germane (34.4).
- Rules affecting appropriations (34.5–34.6), for example—
- an appropriation requires a previous authorization;
- a legislative bill cannot include an appropriation or reappropriation; [Page 560]
- a general appropriations bill cannot include legislation; and
- an amendment limiting the use of funds is permitted, if it does not change existing law.
- Points of order under the Budget Act can be raised (34.7).
- Points of order against a conference report can be raised if the language is not germane to the underlying bill or is beyond the scope of the conference (34.8).
- The parliamentary issues in subsection (a) are usually moot on the floor of the House of Representatives, because points of order are usually waived in the ad hoc rule that determines the consideration of the bill or conference report on the House floor.
- Drafters of nonfederal law
- State constitutional requirements dictate the form and consideration of legislation, including single subject requirements, requirements for the title of bills, requirements relating to publication before consideration and consideration on separate days (35.2).
- Rules of statutory construction (35.3) and definitions (35.4) are codified in many States.
- Whether or not State law is preempted by Federal law must always be considered.
Regulatory drafting (36)
Legislative drafting principles can be applied to the drafting of regulations, even if a different format is prescribed (as in the Federal Register Document Drafting Handbook).
List of Cases Cited[Page 579]
Andrus v. Glover Construction Co., 446 U.S. 608 (1980), chapter 28, n15
Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985), 28.9, chapter 28, n25; 29.4
Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003), 22.2, chapter 22, n6
Bennett v. Berg, 710 F.2d 1361 (8th Cir. 1983), chapter 4, n7
Bob Jones University v. United States, 461 U.S. 574 (1983), chapter 28, n21
Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986), chapter 28, n29
Brock v. Pierce County, 476 U.S. 253 (1986), 22.2, chapter 22, n6
Brotherhood of R.R. Trainmen v. Baltimore & O.R. Co., 331 U.S. 519 (1947), 28.4
Buckley v. Valeo, 424 U.S. 1, 108 (1976), 13.7, 29.5
Carter v. U.S., 530 U.S. 255 (2000), chapter 28, n30
Chapman v. United States, 500 U.S. 453 at 463 (1991), chapter 28, n26
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), 29.6
Chickasaw Nation v. United States, 534 U.S. 84 (2001), 19.4, chapter 28, n2
Church of the Holy Trinity v. United States, 143 U.S. 457 (1892), 28.2, 28.4
Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001), 28.1.
City of Jacksonville v. Department of the Navy, 348 F.3d 1307 (11th Cir. 2003), 28.9
City of Philadelphia v. Com., 575 Pa. 542, 838 A.2d 566 (2003), 35.2
Clark v. Crown Construction Co., 887 F.2d 149 (8th Cir. 1989), chapter 23, n1[Page 580]
Conono, Inc. v. Skinner, 970 F. 2d 1206 (1992), chapter 18, n9
Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102 (1980), 28.4
Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000), chapter 13, n6
Crowley Caribbean Transport, Inc. v. United States, 865 F.2d 1281 (1989), chapter 18, n7
Diamonds Plus, Inc. v. Kolber, 960 F.2d 765 (8th Cir. 1992), 4.9
Digital Equipment Corp. v. Currie Enterprises, 142 F. R. D. 16 (D. Mass. 1992), 4.9
Director, Office of Worker's Compensation Programs, United States Department of Labor v. Peabody Coal Co., 554 F.2d 310 (7th Cir. 1977), chapter 23, n1
EEOC v. Arabian American Oil Co., 499 U.S. 244 at 248 (1991), chapter 28, n31
Empire Healthcare Assurance, Inc. v. McVeigh, __ U.S. __ (126 S. Ct. 2121) (2006), chapter 13, n7
Erlenbaugh v. U.S., 409 U.S. 239 (1972), 28.1
Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963), chapter 13, n 4
Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999), 28.9, chapter 29, n4
Gibbons v. Ogden, 22 U.S. 1 (1824), chapter 13, n1
Gmerek v. State Ethics Commission, 807 A.2d 812 (2002), 13.7
Gonzales v. Raich, 545 U.S. 1 (2005), 29.3
Gozlon-Peretz v. United States, 498 U.S. 395 (1991), chapter 28, n28
Gregory v. Ashcroft, 501 U.S. 452 (1991), 29.4
Gustafson v. Alloyd Co. Inc, 513 U.S. 561 (1995), 28.4
Hamdi v. Rumsfeld, 542 U.S. 507 (2004), 28.6
Harris v. United States, 536 U.S. 545 (2002), 28.6
Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993), chapter 28, n31
Hassett v. Welch, 303 U.S. 303 (1938), 23.3[Page 581]
Hillsborough County, Fla. v. Automated Med. Labs, Inc., 471 U.S. 707 (1985), chapter 13, n2
Hilton v. South Carolina Public Railways Com'n, 502 U.S. 197 (1991), chapter 28, n37
Hines v. Davidowitz, 312 U.S. 52 (1941), chapter 13, n5
H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1989), chapter 4, n5
Holmes v. Securities Investor Protection Corporation, 503 U.S. 258 (1992), chapter 4, n5
Humphrey's Executor v. United States, 295 U.S. 602 (1935), 29.5
Hurst v. Texas Dept. of Assistive and Rehabilitative Services, 482 F.3d 809 (5th Cir. 2007), chapter 28, n25
Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983), chapter 12, n27, 13.7, 29.5
I.N.S. v. St. Cyr, 533 U.S. 289 (2001), 28.6
J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int., Inc., 534 U.S. 124 (2001), 18.2
Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963), chapter 12, n21
Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974), chapter 13, n5
Koons Buick Pontiac GMC, Inc., v. Nigh, 543 U.S. 50 (2004), 18.6, 19.4
Lamie v. United States Trustee, 540 U.S. 526 (2004), 18.6, 19.4
Lane v. Pena, 518 U.S. 187 (1996), 28.6
Lanzetta v. New Jersey, 306 U.S. 451 (1939), 19.4
Lindhal v. Office of Personnel Management, 470 U.S. 768 (1985), chapter 28, n38
Lodge 1858, Am. Federation of Government Employees v. Webb, 580 F.2d 496 (D.C. Cir. 1978), chapter 28, n35
Lorillard v. Pons, 434 U.S. 575 (1978), chapter 28, n39
Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001), chapter 28, n10
Mallard v. United States District Court, 490 U.S. 296 (1989), 28.4
Marbury v. Madison, 5 U.S. 137 (1803), 29.5
Matsushita Elec. Indus. Co., Ltd. v. Epstein, 516 U.S. 367 (1996), 18.2
McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991), 28.1 Miller v. French, 530 U.S. 327 (2000), 28.6[Page 582]
Morton v. Mancari, 417 U.S. 535 (1974), 18.2, 28.7, 28.9, chapter 28, n 32 and 33
Moss v. Morgan Stanley, Inc., 719 F.2d 5 (2nd Cir. 1983), chapter 4, n7
Myers v. United States, 272 U.S. 52 (1926), 29.5
National Association of Home Builders v. Defenders of Wildlife, ___U.S. ___, June 26, 2007, chapter 28, n33
National Organization for Women, Inc. v. Scheidler, 510 U.S. 249 (1994), 4.9
New Jersey Air National Guard v. FLRA, 677 F.2d 276 (3d Cir. 1982), chapter 18, n8
New York v. United States, 505 U.S. 144 (1992), 29.4
Norfolk & Western Ry. Co. v. Am. Train Dispatchers Ass'n, 499 U.S. 117 (1991), 28.4
O'Melveny & Myers v. F.D.I.C., 512 U.S. 79 (1994), chapter 28, n15
Pasquantino v. U.S., 544 U.S. 349 (2005), chapter 28, n30
Pearce v. Director, Office of Worker's Compensation Programs, United States Department of Labor, 603 F.2d 763 (9th Cir. 1979), chapter 23, n1
People of California v. United States, 215 F.3d 1005 (9th cir. 2000), 28.9
Perdue v. O'Kelley, 280 Ga. 732, 632 S.E.2d 110 (2006), chapter 35, n3
Posadas v. National City Bank, 296 U.S. 497 (1936), 18.2, chapter 28, n32
Printz v. United States, 521 U.S. 898 (1997), 29.4
Prudential Insurance Company of America v. Bennett, 464 U.S. 1008 (1983), chapter 4, n7
Radzanower v. Touche Ross & Co., 426 U.S. 148 (1976), 18.2
Randall v. Sorrell, __ U.S. __, 126 S. Ct. 2479 (June 26, 2006), chapter 28, n36
Ratzlaf v. United States, 510 U.S. 135 (1994), chapter 12, n13
Reno v. ACLU, 521 U.S. 844 (1997), 13.7
Reves v. Ernst & Young, 507 U.S. 170 (1993), chapter 4, n6
Rex Trailer Co. v. United States, 350 U.S. 148 (1956), chapter 12, n20
Scheidler et al. v. National Organization for Women, Inc. et al., 547 U.S. 9 (2006), chapter 4, n9[Page 583]
Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985), 4.9
Skidmore v. Swift & Co., 323 U.S. 134 (1944), 29.6
Spies v. United States, 317 U.S. 492 (1943), chapter 12, n11
Sprietsma v. Mercury Marine, 537 U.S. 51 (2002), 13.5
State v. Kenmore Demolition Co. Inc., 34 Ohio App.2d 19, 295 N.E.2d 416 (1972), 35.5
Stilp v. Commonwealth of Pennsylvania, 588 Pa. 539, 905 A.2d 918 (2006), 35.2
Sugarman v. Dougall, 413 U.S. 634 (1973), 29.4
Townsend v. Little, 109 U.S. 504 at 512 (1883), chapter 28, n34 Turkish v. Kasenetz, 27 F.3d 23 (2d Cir. 1994), 4.9
United States v. Borden Co., 308 U.S. 188 (1939), chapter 28, n33
United States v. Carrier, 654 F.2d 559 (9th Cir. 1981), chapter 12, n14
United States v. D'Amario, 12 F.3d 253 (1st Cir. 2005), chapter 23, n1
United States v. Darby, 312 U.S. 100 (1941), 29.3
United States v. Harris, 185 F.3d 999 (9th Cir. 1999), chapter 12, n12
United States v. James Daniel Good Real Property, 510 U.S. 43 (1993), chapter 22 n5
United States v. Lopez, 514 U.S. 549 (1995), 11.6, 29.3, chapter 29, n2
United States v. Mead Corp., 533 U.S. 218 (2001), 29.6
United States v. Morrison, 529 U.S. 598 (2000), 11.6, 29.3, chapter 29, n2
United States v. Rodriguez-Rodriguez, 863 F.2d 830 (11th Cir. 1989), chapter 23, n2
United States v. Smith, 683 F.2d 1236 (9th Cir. 1981), chapter 23, n1
United States v. Turkette, 452 U.S. 576 (1981), 4.9, chapter 4, n6 and 7, 28.4
United States v. Ward, 448 U.S. 242 (1980), chapter 12, n19
Watt v. Alaska, 451 U.S. 259 (1981), 18.2, 28.7, chapter 28, n32
West Virginia Univ. Hospitals, Inc. v. Casey, 499 U.S. 83 (1991), chapter 28, n19
Whalen v. United States, 445 U.S. 684 (1980), chapter 28, n27
Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989), 29.4
Wisconsin Public Intervenor v. Mortier, 501 U.S. 597 (1991), chapter 28, n24