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How Laws Are Made: How does a law get made?

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This is how a law gets made in the United States, and who checks it. The U.S. government has three branches: legislative, executive and judicial. The system of checks and balances lets each branch respond to the actions of the others. The Constitution says the judicial power of the United States belongs to one Supreme Court and to lower courts that Congress may create. Federal judges, on the Supreme Court and lower courts, hold their offices during good behavior.

The design of Congress has a history. In 1787, leaders called the Framers met in Philadelphia and wrote the U.S. Constitution. The convention met in the Pennsylvania State House, ostensibly to amend the Articles of Confederation. Those Articles essentially operated as a treaty between thirteen independent sovereigns. At the convention, the idea of amending them was discarded and the assembly set about drawing up a new scheme of government. The issue of representation threatened to destroy the seven-week-old convention.

Two plans collided. Edmund Randolph offered the Virginia plan, a bicameral legislature with each state's representation based on its population or wealth. William Paterson proposed the New Jersey plan, which provided for equal representation in Congress. Large-state delegates argued that their states contributed more to the nation's finances and defense, so they should have greater representation in both the Senate and the House. Small-state delegates demanded that all states be equally represented in both houses.

The Great Compromise gave each state equal seats in the Senate and seats in the House based on population. Britannica says the Connecticut Compromise was offered by Roger Sherman and Oliver Ellsworth at the 1787 convention to solve the dispute between small and large states over representation. On July 16, 1787, the convention adopted it by a margin of one vote. Under the Great Compromise, all revenue measures would originate in the lower house. The Constitution's federal system was the central compromise that allowed thirteen skeptical states to ratify it in 1788.

The Constitution lists what Congress may do. Congress has the power to collect taxes and the power to regulate trade with other nations and among the states. It can establish post offices and post roads. The Constitution also says Congress has the power to make the laws that are needed to carry out its other powers.

House committees often begin with a public hearing, where members hear witnesses who represent different viewpoints on the bill. After hearings, a committee holds a "mark-up" session. Members study the viewpoints, may offer amendments, and vote to accept or reject the changes. When a House committee votes to report a bill, it writes a Committee Report that describes the purpose and scope of the bill and the reasons for recommending approval. In the House, debate on a bill may be governed by a "rule", which is itself a simple resolution that the House must pass. If the Senate and House pass different versions, a conference committee of members from both can settle the differences and report one identical bill back for a vote in each house.

When both houses pass a bill in identical form, it is called "enrolled" and is sent to the president. The Constitution gives the president 10 days, not counting Sundays, to act on a bill. The president may sign an enrolled bill into law, veto it and return it to Congress, let it become law without a signature, or at the end of a session pocket-veto it. In a regular veto, the president returns the unsigned bill, usually with a memorandum of disapproval or a veto message. A pocket veto cannot be overridden by Congress. To override a veto, Congress needs a two-thirds vote in each house. Even the threat of a veto can change the content of legislation long before a bill reaches the president. Orders, resolutions and votes that need both the Senate and House, except on adjournment, must also be presented to the president. If the president disapproves, two thirds of the Senate and House must repass them.

Courts come into it too. In Marbury v. Madison, outgoing President John Adams had issued William Marbury a commission as justice of the peace, but the new Secretary of State, James Madison, refused to deliver it. Marbury sued to obtain it. With his decision, Chief Justice John Marshall established the principle of judicial review. Nothing stated in the Constitution gave the Court that specific power, and judicial review was not confirmed until 1803. Marshall wrote that it is "emphatically the province of the judicial department to say what the law is." Marshall believed the Supreme Court should have a role equal to those of the other two branches of government. Before 1789, state courts had already overturned legislative acts that conflicted with state constitutions.

Agencies make rules too. Rulemaking is the policy-making process by which federal executive and independent agencies develop and issue rules, which are also called regulations. An agency cannot issue a rule unless a law gives it the authority to do so. An agency often proposes a regulation in a Notice of Proposed Rulemaking after it researches the issues and decides a new rule is necessary. After the comment period closes, an agency reviews all comments received and conducts a comment analysis. People who want to comment on proposed rules should submit formal comments through Regulations.gov, according to the Federal Register. A rulemaking process can lead to a new rule, an amendment to an existing rule, or the repeal of an existing rule. Rulemaking is governed by laws that include the Administrative Procedure Act.

States have their own steps. In California, a bill starts when a person or group persuades a member of the Legislature to author it. A bill with a fiscal impact or state cost is heard in the Senate or Assembly Appropriations Committees. After a bill passes its house of origin, it goes to the second house and passes through the committee process all over again. Each bill must appear in the Daily File for four days before being heard in a committee. The governor has 12 days to sign, approve without signing, or veto a bill. If the governor vetoes a bill, a two-thirds vote in each house is needed to override the veto.

Words to know

  • bicameral: two-house
  • amendments: changes
  • enrolled: final passed copy
  • regulations: agency rules
  • judicial: of the courts

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