Let’s say a repeal of law A is passed, is the repeal itself considered a LAW?
Yes. Laws can only be amended or repealed with another law.
(ETA: it clearly sounds like you are referring to a legislative product that repeals a law, so things like a court decision striking down a law is something different.)
Do you mean if you passed another law repealing the repeal, would the 1st law become active again? I don’t know the answer to that but I believe repeals are laws just like any other. Constitutional Amendments can only be invalidated by a later amendment and all of the text is retained. For example, the 18th amendment to the U.S. Constitution establish prohibition and the 21st repeals it.
Short answer yes. Long answer maybe.
To make any change in the law od a jurisdiction the legislature of that jurisdiction has to pass an Act by the appropriate procedure. For instance, in U.S. federal law, both Chambers of Congress must pass identical legislation, and then it must be signed by the president or, if he vetoes it, repassed by both Chambers with a 2/3ds majority. This includes Acts which state “The Anti-Nose Picking Act of 2003 is hereby repealed in full.” That’s a law same as anything else, and yo can’t repeal extant law without passing a new one, even if it’s as simple as that.
That said, the body of law in a jurisdiction is often “codified” such that the current codification compiles all the currently extant legislation. So you could have had a law which says:
- This law shall be entitled The Anti-Nose Picking Act of 2003.
- There shall be created a new Section 501 of Title 19 of the U.S. Code, to read as follows:
- Nose picking. It shall be a criminal offense for any person to pick his nose. Persons doing so shall be incarcerated for a term of no more than seven years.
Then when you pass the Act repealing it, suddenly there’s no Sec. 501 any longer. So the repeal didn’t make it as text into the Code – it just erased text that was already there.
–Cliffy
Do federal statutes regularly specify their own codification? I was under the impression that the US Code people assemble it manually every couple of years from all the new bills that have been passed, excluding stuff that doesn’t get codified.
I also understand that some titles have themselves been passed in their entirety as bills, making them prima facie laws, but some haven’t been.
In the US, courts can strike down or render unenforceable unconstitutional or vague laws. Is a law whose purpose is to repeal another law inherently protected from judicial review? E.g. if Congress passed a law tomorrow (and the President signed it) that said, “The Patriot Act is hereby repealed.”, could the SCOTUS rule that repealing the Patriot Act is unconstitutional?
I’m trying to think of an instance where not having a law on the books would be unconstitutional. My immediate thought is that compelling the existence of a law that Congress seeks to be repealed would be a very serious judicial encroachment on the legislative power, but that’s just my opinion.
I think it would be difficult to get standing, you’d have to somehow prove that you were harmed by the non-existence of a law to even be able to get into the courts in the first place. It’s obviously doable, but I’m not sure the courts would accept it because you could do the same thing with a law that never existed in the first place.
The US Code is itself prima facie evidence of the laws. See 1 USC § 204(a).
When a Title is compiled and passed into law it becomes what is known as positive law when then is “legal evidence of the laws therein contained, in all the courts of the United States, the several States, and the Territories and insular possessions of the United States.” 1 USC § 204(a)
Public Laws are codified after each session of Congress. Titles are passed into positive law very rarely.
When Congress amends a law that is contained in a Title that has been passed into positive law, the amendment specifically refers to the text and section numbers of the US Code. Otherwise, the amendment refers to the previous law.
A law that is a repealer can be attacked like any other. If it had no provisions other than the repeal, I can’t think what basis there would be for declaring it unconstitutional. However, if it were included in a larger statute that were struck down in its entirety, then the repealer would go down as well.
Interesting; I didn’t know that. Note that this only applies to federal law in the United States. I don’t know what would happen if a comparable situation came up in state law.
Various amendments of the Constitution include the language “The Congress shall have power to enforce this article by appropriate legislation”. What if Congress passed an act repealing 42 USC Chapter 20 and any other provisions of federal law that allow for the enforcement of the Fifteenth, Nineteenth, Twenty-Fourth, or Twenty-Sixth Amendments, leaving them effectively null and void but without properly repealing them?
Doesn’t the power to enforce also include the power to NOT enforce? IOW, if Congress had never passed those laws to begin with, there would be no question that the Court couldn’t order them to do so.
But maybe you would get a similar situation like with SSM in California. There was a right that was then taken away, so that’s bad…
Well, that’s sort of the question, I guess. The language of the various amendments is clearly imperative–“The right of citizens of the United States to vote shall not be denied or abridged on account of _____.” So, is the subsequent language “Congress shall have the power to enforce this article by appropriate legislation” just saying “Oh, hey, it would be totally swell if y’all want to actually enforce this”; or is it saying “The right of citizens of the United States to vote shall not be denied or abridged on account of race/sex/non-payment of poll taxes, and by this amendment we are also adding a new power to Article I, Section 8 to make sure this gets done”.
Huh, I did not know this.
So here’s the 18th Amendment:
And the 21st Amendment:
Now let’s say we enacted a 28th Amendment:
Would it be legal or illegal to sell intoxicating liquors in the United States once this new amendment went into effect?
The Courts couldn’t make Congress enforce those Amendments. But all those Amendments are ones that forbid States from doing things, so presumably the Courts could just directly tell the States to cut-it-out with the poll tax or whatever.
As I understand it (probably wrongly), the Constitution – including the amendments – is strictly metalegislation, rules about legislation. So, for example, the 26th Amendment didn’t change the voting age, it simply made any law that set a minimum age for voting unconstitutional if that minimum were over 18. The law itself setting the age at 18 was separate; the “power to enact” language is to spell out that Congress can do that, since they want to err on the side of limiting the power of Congress.
Well, lets take the right of a woman to vote…20th amendment. I assume that there is a volume of federal law which has been passed pursuant to that amendment that punishes officials, both civilly and criminally, for denying a person the right to vote because of gender.
But lets say that all of those laws were repealed. I think that repealing those laws would be constitutional, but a woman who was denied the right to vote could still go to court and get an injunction preventing those individuals from interfering with her vote. And a violation of that injunction would be contempt of court, but otherwise there would be no criminal or civil penalties.
It would make the right hollow and very difficult to exercise in practice, but, hell, look at how long the 15th amendment was ignored by Congress.
If we are speaking of the U.S. Congress, a LAW is defined in the Constitution.
Section 7 - Revenue Bills, Legislative Process, Presidential Veto
All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.
If a bill to repeal an existing law is introduced and signed or vetoed and overridden according to the above, that is a LAW.
So a LAW simply means it met Constitutional requirements.