The U.S. Constitution defines the federal legislative body. Article 1, Section 1 states that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
Article 1, Section 8 also identifies the areas -such as interstate commerce – over which Congress has legislative powers. In other words, the Constitution tells us when federal statutes are binding, and what legal issues need to be researched at the federal level. Additionally, Article I, Section 8 empowers Congress to “make all [other] Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” This wording has caused many legal battles that often ended up in courts. As the result of such a legal battle, the Supreme Court may declare a federal statute unconstitutional. One such example was discussed earlier in the Supreme Court case of //United States v. Lopez//, 514 U.S. 549 (1995).
In those areas, federal legislation takes precedence over conflicting state legislation; it is said that federal legislation preempts state legislation. For example, as Miller and Davis wrote in their Intellectual Property (Nutshell Treatise), about copyright infringement, “state cause of action securing to an author an exclusive right to copy a tangible expression clearly interferes with federal regulation [the Copyright Act] and is preempted” (2012, 416). The Copyright Act is codified in title 17 of the United States Code, and the preemption provisions are included in [Section 30l].
Similarly, at the state level, each state Constitution defines that state’s legislative body. For example, Article III of the New York Constitution vests the state’s power to pass statutes in a bicameral body made up of the Senate and Assembly: “The legislative power of this state shall be vested in the senate and assembly.”
Understanding how federalism works is a must when it comes to legal research.
All statutes start as a bill. Very few bills become statutes.
Passing a statute is not an easy process. It requires a lot of human energy and financial prowess to support the congressional members’ interest in the statute. Sometimes the lobbying interests pushing for the passage of a bill are obvious; other times they are less obvious. For example, //The Copyright Term Extension Act- Sonny Bono Copyright Term Extension Act//, Pub. L. No. 105-298, 112 Stat. 2827 (1998) extended the copyright term for works created on or after January 1, 1978, from life of the author plus 50 years after the author’s death to life of the author plus 70 years after death. The act extended most other current copyrights for an additional 20 years.The entertainment industry interests at work there are thus obvious. Other times those interests are not so clear.
Nevertheless, there are ways to speed up a bill on its way or obstruct its advance to become a statute. Some will become apparent from the discussion below. Also, there are ways to influence the ways in which a court will later apply a statute. Many of the records of legislative deliberations, which are often used to decipher statutory rules, should be regarded with suspicion when you interpret a statute, because they could have been inserted in the legislative record post-factum (after the debate itself) for the purpose of manipulating the reader’s statutory interpretation.
As you all know the federal Congress is the body that makes federal statutes. Although, as mentioned before, its constitutional powers are limited, Congress is expected to legislate today on diverse issues, such as tariffs, public lands, currency, transportation, housing, education, foreign aid, and preemptive war. As John V. Sullivan explained in //How Our Laws Are Made//, S. Doc. 110-49 (2007), on the one hand, “[s]ources of ideas for legislation are unlimited” (Id.). On the other hand, Congress has a rigid procedure it follows to change those ideas into statutes. Of course, “proposed drafts of bills [may] originate in many diverse quarters” (Id.) Usually a member of Congress (representative or senator), will draft a bill and introduce it in one or both chambers of Congress. That member of Congress becomes the bill’s sponsors. It is a senator for a bill introduced in the Senate and a representative for those introduced in the House of Representatives.
For example, Senator Daniel Inouye introduced a bill to amend title 36 of the United States Code to establish the American Indian Education Foundation, on June 28, 1999, in the 106th Congress, entitled, Senate Bill S.1290 – “To Amend Title 36 of the United States Code to establish the American Indian Education Foundation, and for Other Purposes.” It was eventually voted and passed by Senate, and then sent to the House for similar legislative action.
A related bill was introduced in the House, by representative Kildee on October 14, 1999.
The Index to the Congressional Record of the Congress is the publication that keeps track of the action taken with every bill introduced. Thus, the Index to the Congressional Record of the first session of the 106th Congress is the place to search for a summary of the actions taken on a bill. In addition to this Index , bill tracking services are also available free of charge through the Library of Congress’, //Search Bill Summary & Status//.
Most sponsors will insert an explanatory statement about their bills in the Daily Digest of the Congressional Record. Both, Senator Daniel Inouye inserted his explanations, and Representative Kildee, his, when they introduced the bills. Once introduced, like any other bill, this bill also was referred by the Speaker to the appropriate House standing committee for consideration and by the President Officer to the appropriate Senate committee. For example, the bill sponsored by Senator Daniel Inouye was referred to the Committee on Indian Affairs, and the bill sponsored by Representative Kildee was referred to the Committee on Resources. After introduction and reference, all proposed bills are given a number and sent to the Government Printing Office. The next morning, printed copies are available in the Senate and House document rooms.
All bills have a designation. The bill introduced in the Senate will have the letter “S,” which stands for Senate, followed by the bill number, while the bills introduced in the House will have “H.R.,” which stands for House of Representatives, followed by the bill number. The Senate bill to amend title 36 of the United States Code was given the designation S. 1290, while the House bill received the number H.R. 1380. All bills have a title that succinctly states the subject or aim of the legislation. The short title of both the Senate bill S. 1290 and the House bill H.R. 1380 was the “American Indian Education Foundation Act of 1999.” Most bills also contain a section that will explain the purpose of the bill, and another that will contain definitions of the terms they use. All bills contain standard clauses that will further detail the content of the bill. For example, S. 1290 identifies its purpose in its title: “to establish the American Indian Education Foundation,” whose own purpose is further itemized in Section 21602. Similarly, H.R. 3080 identifies its purpose in its title and further details the scope of the American Indian Education Foundation in Section 501(e). The committee in charge of the future of a bill may hold hearings or may obstruct that process. When they hold hearings, that process ends with the committee writing a report that will accompany the bill when it is sent out to the Chamber’s floor. During those hearings, members of the Congress, as well as representatives of interest groups and other private persons may be heard.
All those statements will become part of the “legislative history of the bill.” At the committee level, there is considerable opportunity for delay and defeat of the bill. The Senate and House committee reports are published in a publication called the United States Congressional Serial Set, or the Serial Set.
Selected documents from the Serial Set volumes from the 85th through 111th Congress are available free-of-charge from
http://www.gpo.gov/help/u.s._congressional_serial_set.htm, while 23rd through the 64th Congress, or from 1833 through 1917, are available free-of-charge on the Library of Congress Web site. Though in the public domain, the congressional documents which constitute the legislative history of federal statutes are mostly available through proprietary databases, such as Readex, a division of NewsBank, inc., ProQuest, or LexisNexis.
Returning to our random example, the Senate Committee on Indian Affairs held hearings on bill S. 1290, and published its report, as Senate Report 106-197. Afterward, the Senate unanimously voted on the bill and informed the House about its action. The House referred bill H.R. 3080 to the House Committee on the Judiciary. This committee further referred it to the Subcommittee on Immigration and Claims. Because our example is relatively recent, its legislative history, the documents Congress produced along the bills’ passages in the two chambers are available free-of-charge from Thomas.loc.gov.
Not all bills are voted by a chamber as they are originally introduced in that chamber. For example, bill H.R. 3080 was voted in the House, but as part of another bill, H.R. 5528, Omnibus Indian Advancement Act.
A bill may be defeated on the floor of one of the chambers as well. For example, members of members of Congress may engage in making lengthy speeches intended to prevent or defeat action on the bill. This tactic is known as “filibustering,” and it is recorded in a publication called the Senate Journal.
While the Senate Journal is the official Senate publication (see glossary of terms), all Congressional floor proceedings are recorded-with noted inaccuracy-in the above-mentioned publication called the //Congressional Record//. The Congressional Record is published daily while Congress is in session, and each daily edition has a digest that summarizes the floor and committees’ activities for that day. A separate volume is published for each calendar year. Based on the information provided by the U.S. Senate web site, the Congressional Record may be the most easily and freely accessible document in the United States research history. There is even an iApp for it!
Both representatives and senators may be interested in a bill’s legislative history and there are cases when sponsors have inserted self-serving statements in the final version of the Congressional Record. Thus, researchers are well-advised to understand the difference between the two versions of the Record and use it accordingly.
When a bill is approved in identical form by both the House and the Senate, the amendments are incorporated and the so-called “enrolled bill” is sent to the President for signature. The President has ten days in which to decide what action to take on the bill. The President may sign the bill or leave it unsigned and, if Congress is still in session, the bill becomes law in either case. However, the President may also refuse to sign the bill into law. The presidential refusal is called a “veto,” and it may be overridden by a two-thirds vote of those present in both the Senate and the House-which has to be a quorum. If Congress overrides the veto, the bill becomes law. Once the bill becomes law, it is transmitted to the General Services Administration for publication. When the bill is published it will be given a Public Law number (Pub. L. No.), which contains the number of the enacting Congress and a number indicating the order in which the bill was adopted as compared with other enactments by the same Congress. The Omnibus Indian Advancement Act (the Act) was passed on December 27, 2000, and it became Public Law No. 106-568, or P.L. 106-568 (2000). Those numbers mean that the 106th Congress passed the Act as its 568th statute. There are some stylistic differences between statements made at the time of the debate and those inserted later: bullets precede the Senate statements introduced later in the Record. The new law used to be published in its entirety with other new laws in a bound volume of the Statutes at Large, which for a period of time was also available online at the “United States Federal Legislative information service on the Internet,” called Thomas.loc.gov, and on the Government Printing Office Web site, at gpoaccess.gov. Today, all researchers rely on the Adobe Portable Document Format (PDF) version of the statute published on-line, in the identical format of the by-gone print version.
The Omnibus Indian Advancement Act of our example was published in volume 114 of the Statutes at Large, and it starts at page 2868. This Act may be identified by the location of the statute in the official publication as 114 Stat. 2868 (2000). Thus, the original American Indian Education Foundation bill has become statute and gained binding authority upon all disputes involving related issues, as part of the Omnibus Indian Advancement Act, which is identified as Pub. L. No. 106-568, 114 Stat. 2868. The Omnibus Indian Advancement Act was incorporated in title 25 of the Code, which is called “Indians.” The statute’s codified version is identified as 25 U.S.C. Section 4101 et seq.