When a bill is submitted to Congress, why are provisions completely unrelated to the bill allowed?

[Melbourne]

@md2000

So basically no adult supervision.

The point with rules of procedure, set by the body itself is basic (and a problem too with British parliamentary systems). A legislature cannot tie the hands of future legislatures. Only constitutional provisions can do that. A legislature might pass laws requiring a balanced budget, or rules about single-topic bills and two-thirds mandates for certain actions, whatever. But after that, any future legislature can simply override that provision by its own vote. IIRC, a legislature cannot even say “you need 2/3 vote to overturn this law”. A simple majority can reverse any law unless the constitution says otherwise.

As I recall, in my state the legislature can change the constitution with a 2/3 majority (and have done so).

[Ravenman]

@Chisquirrel

No, Keeve did research and was TOLD the Representative was pro-disaster aid and anti-post office. This may be a shocker, but sometimes politicians weasel or outright lie, especially when their reason for voting against a bill would be obviously detrimental to getting votes, as this case would be.

You’re requiring everyone else to make judgement calls on whether someone is being honest, instead of forcing them to own their actual positions via vote.

If someone says their position is X and not Y, you can suspect that they are not being honest, sure. But someone willing to mislead people by saying untrue things isn’t exactly going to be forced into honesty by casting a single vote.

For example, does anyone think that so many Democrats in 2002 actually wanted war with Iraq by voting for the war resolution? I think their votes were a sign of cowardice in betraying their likely opinions, rather than an insight into their actual position.

[Northern_Piper]

@md2000

So basically no adult supervision.

The point with rules of procedure, set by the body itself is basic (and a problem too with British parliamentary systems). A legislature cannot tie the hands of future legislatures. Only constitutional provisions can do that. A legislature might pass laws requiring a balanced budget, or rules about single-topic bills and two-thirds mandates for certain actions, whatever. But after that, any future legislature can simply override that provision by its own vote. IIRC, a legislature cannot even say “you need 2/3 vote to overturn this law”. A simple majority can reverse any law unless the constitution says otherwise.

Not necessarily. The legislature can’t prohibit a future legislature from repealing a bill, but it can put procedural requirements on the future legislature, called «manner and form» requirements.

The leading case is Attorney General of New South Wales v Trethowan, a decision of the Judicial Committee of the Privy Council: Attorney-General (NSW) v Trethowan [1932] A.C. 526 Case Summary

The New South Wales Legislature passed a law stating that the Legislature could only abolish the upper house of the Legislature if abolition was approved in a referendum. And, the law stated that the law setting out that requirement could not itself be repealed unless the repeal was first approved in a referendum.

The government changed and the anti-upper house party got in. They passed a bill repealing the referendum requirements, then they passed a bill to abolish the upper house, all without holding a referendum. Supporters of the upper house filed for an injunction to direct the state Governor not to grant royal assent, because the bill had not been properly passed according to the manner and form set out in the previous legislation.

The JCPC upheld the injunction, confirming that a legislature can impose «manner and form» procedural requirements on its successors.

«Manner and form» requirements are also what sunk the Meech Lake Accord in Manitoba.

Remember Elijah Harper standing up in the Assembly, holding his eagle feather, and quietly saying «No»?

The background is that under the Rules of the Manitoba Legislative Assembly, before the Assembly could pass a constitutional amendment resolution, the Assembly had to refer it to a committee, and the committee had to hold public hearings.

Given the short time line when Mulroney was desperately trying to get the Accord passed before the three year deadline ran out, there was not time to hold the public hearings. But, it’s a general principle that a rule of parliamentary procedure in Canadian Assemblies can be waived, if there is unanimous consent from all members.

That’s what the motion before the Assembly was. Each day, while the clock was ticking on Meech, the Manitoba government asked the House for unanimous consent to waive the public hearing requirement. And each day, Elijah Harper stood up and quietly said «no», denying the unanimous consent to waive the rule. A «manner and form» requirement stopped the passage of Meech Lake: the membres of the Assembly were bound to respect the manner and form set out in their own rules. Even though the government had a majority in the House, they could not pass the resolution in time to meet the three year deadline for a constitutional amendment, and Meech failed.

[UltraVires]

@Northern_Piper

Not necessarily. The legislature can’t prohibit a future legislature from repealing a bill, but it can put procedural requirements on the future legislature, called «manner and form» requirements.

The leading case is Attorney General of New South Wales v Trethowan, a decision of the Judicial Committee of the Privy Council: Attorney-General (NSW) v Trethowan [1932] A.C. 526 Case Summary

The New South Wales Legislature passed a law stating that the Legislature could only abolish the upper house of the Legislature if abolition was approved in a referendum. And, the law stated that the law setting out that requirement could not itself be repealed unless the repeal was first approved in a referendum.

The government changed and the anti-upper house party got in. They passed a bill repealing the referendum requirements, then they passed a bill to abolish the upper house, all without holding a referendum. Supporters of the upper house filed for an injunction to direct the state Governor not to grant royal assent, because the bill had not been properly passed according to the manner and form set out in the previous legislation.

The JCPC upheld the injunction, confirming that a legislature can impose «manner and form» procedural requirements on its successors.

«Manner and form» requirements are also what sunk the Meech Lake Accord in Manitoba.

Remember Elijah Harper standing up in the Assembly, holding his eagle feather, and quietly saying «No»?

The background is that under the Rules of the Manitoba Legislative Assembly, before the Assembly could pass a constitutional amendment resolution, the Assembly had to refer it to a committee, and the committee had to hold public hearings.

Given the short time line when Mulroney was desperately trying to get the Accord passed before the three year deadline ran out, there was not time to hold the public hearings. But, it’s a general principle that a rule of parliamentary procedure in Canadian Assemblies can be waived, if there is unanimous consent from all members.

That’s what the motion before the Assembly was. Each day, while the clock was ticking on Meech, the Manitoba government asked the House for unanimous consent to waive the public hearing requirement. And each day, Elijah Harper stood up and quietly said «no», denying the unanimous consent to waive the rule. A «manner and form» requirement stopped the passage of Meech Lake: the membres of the Assembly were bound to respect the manner and form set out in their own rules. Even though the government had a majority in the House, they could not pass the resolution in time to meet the three year deadline for a constitutional amendment, and Meech failed.

Very interesting. It seems very anti-democratic that a legislature of the day, without passing a constitutional amendment, can bind a future legislature by a simple majority vote. “Manner and form” seems like a nice legal saying, but what it does is allow the passing fancy of the time to control always and forever.

Is there a limit on “manner and form”? What if the current legislature passed a law against, say, private ownership of lemurs, and specified that the law could only be repealed by a unanimous vote of the legislature and every elected official in Canada including the director of the No Ownership of Lemurs Ever group which they appoint? Would that pass muster?

[Northern_Piper]

Fair question. We don’t know. There haven’t been any major cases on point since Trethowen, so far as I know, so it just sits there. I remember when I first came across it I had much the same reaction.

(Except the Lemur bit. That’s entirely on you. )

Those Aussies. Causing trouble for the rest of the Commonwealth.

[Nava]

@Smeghead

Who gets to decide if a particular provision is “related” or not? It’s the same political football; you’ve just kicked it ten yards downfield.

I don’t know, but in a lot of countries we have no problem separating “food in schools” from “marriage rights” or “zoning issues”. Maybe we have a superpower.

[UltraVires]

@Nava

I don’t know, but in a lot of countries we have no problem separating “food in schools” from “marriage rights” or “zoning issues”. Maybe we have a superpower.

But you could argue that food in schools are related to each of those things. Whether it is a good argument is up to someone. For example, I could have a bill that permits SSM and allows food delivery service in areas near schools not previously zoned for food business. I argue that this is an omnibus “Feed Our Children” bill. The rezoning allows food to be nearer the point of delivery, cutting costs, and further that intact and committed married families, whether gay or straight, are more stable and can better feed children at home. One subject? Who decides? How strict is the one subject rule?

Or less extreme: what if I have a bill that proposes a $2 per pack increase in the tax on cigarettes and it also bans smoking in bars? Is that one subject or two? I could argue that the single subject of the bill is “To reduce smoking.” You could counter that those are two separate issues as someone might agree with the tax increase but be against the bar ban, or vice versa. Who is right?

[Northern_Piper]

Well, in the Westminster parliamentary system, it’s the neutral Speaker, based on the precedents which have evolved in a particular assembly to determine that issue.

[UltraVires]

Here’s a good example. Florida has a “one subject” rule for proposed constitutional amendments. In 2018 Floridians got to vote on the “single subject” of whether to ban offshore drilling in state waters for natural gas and oil AND to ban vaping in indoor workplaces. That was considered a single subject because it protected the environment.

Florida Amendment 9, Ban Offshore Oil and Gas Drilling and Ban Vaping in...

[md2000]

Each state parliament power is subject to procedural limitation, which is the entrenchment of restrictive legislative procedure. Section 6 of the Australia Act states that laws concerning the “constitution, power or procedure of the parliament” are invalid unless passed in the manner and form prescribed by the legislation made by the parliament.[32]

As I understand from a reading of the decision in NSW,

the Colonial Laws Validity Act 1865. S.5 of that Act confers upon representative legislatures in the Dominions full power to make laws respecting the constitution, powers and procedure of such legislatures, provided that such laws shall have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, order in council, or colonial law for the time being in force therein

So basically the NSW legislature was obliged to follow its “manner and form” because it could not override it - because it was not fully sovereign, being restricted by that higher power’s act much as being restricted by a constitution.
Dixon, in the same case, says

DIXON J:… This question must be answered upon a consideration of the true meaning and effect of the written instruments from which the Parliament of New South Wales derives its legislative power. It is not to be determined by the direct application of the doctrine of parliamentary sovereignty, which gives to the Imperial Parliament its supremacy over the law. It is the law derived… from the Imperial Parliament which gives to the Legislature of New South Wales its powers, and it is that law which determines the extent of those powers and the conditions which govern their exercise. The incapacity of the British Legislature to limit its own power otherwise than by transferring a portion or abdicating the whole of its sovereignty has…been explained as a necessary consequence of a true conception of sovereignty. But in any case it depends upon considerations which have no application to the Legislature of New South Wales, which is not a sovereign body and has a purely statutory origin. Because of the supremacy of the Imperial Parliament over the law, the Courts merely apply its legislative enactments and do not examine their validity, but because the law over which the Imperial Parliament is supreme determines the powers of a legislature in a Dominion, the Courts must decide upon the validity is well as the application of the statutes of that legislature.

It must not be supposed, however, that all difficulties would vanish if the full doctrine of parliamentary supremacy could be invoked. An Act of the British Parliament which contained a provision that no Bill repealing any part of the Act including the part so restraining its own repeal should be presented for the royal assent unless the Bill were first approved by the electors, would have the force of law until the Sovereign actually did assent to a Bill for its repeal. In strictness it would be an unlawful proceeding to present such a Bill for the royal assent before it had been approved by the electors. If, before the Bill received the assent of the Crown, it was found possible, as appears to have been done in this appeal, to raise for judicial decision the question whether it was lawful to present the Bill for that assent, the Courts would be bound to pronounce it unlawful to do so. Moreover, if it happened that, notwithstanding the statutory inhibition, the Bill did receive the royal assent although it was not submitted to the electors, the Courts might be called upon to consider whether the supreme legislative power in respect of the matter had in truth been exercised in the manner required for its authentic expression and by the elements in which it had come to reside.

It seems a bit of hair-splitting. He seems to say that the UK’s parliament since it is not the result of a law or constitution, cannot be restrained, then suggests a course of action by which it might - by passing a law that refuses to allow a repeal bill to be “presented for royal assent” unless put to a referendum.

Law is never dull. Thanks all.

[Ficer67]

It’s politics in America!