Wednesday, May 6, 2009
Is Our Senators Learning: Cause and Effect, Separation of Powers, and Verbs
In this edition of Is Our Senators Learning, we explore cause and effect, the separation of powers doctrine, and, everyone's favorite topic, bill drafting. But first, our executive summary.
Executive Summary
- Because the Senators did not pass a proper resolution adopting rules, the Interim Committee does not exist.
- Senate Bill No. 77-[???] violates the separation of powers doctrine.
- The same bill does not actually amend ASUN Public Law 75-7.
As we explained back in this post, the Senate did not adopt a proper resolution adopting the rules of the Senate. To refresh your memory, this is what a proper rules resolution would have said.
Resolved,That the Rules of the Senate of the Seventy-Sixth Session, including applicable provisions of law or resolution that constituted rules of the Senate at the end of the Seventy-Sixth Senate, are adopted as the Rules of the Senate of the Seventy-Seventh Senate.
This is what they actually passed.
Resolved, that the Senate has adopted the Rules of the Senate pursuant to Article II sec. 2(c) of the Constitution of the Associated Students.
At the time, we ignored the language stating "including applicable provisions of law or resolution that constituted rules of the Senate at the end of the Seventy-Sixth Senate." Today we're going to explain the effect of that language.
Rules May Exist Outside of the Rules
Previously we have explained that there may be reasons for putting provisions that are basically rules of the Senate into public law, such as permanence beyond a session, to make them harder to amend, etc. However, just because those rules are in statute doesn't mean that they automatically have effect beyond a session of the Senate. The Senate's constitutional power in Article II, section 2(c) of the ASUN Constitution to adopt rules is exclusive and absolute. "The Senate may determine the rules of its proceedings." The power is exclusive in that it belongs to the Senate and only the Senate. Thus, even though the Senate may have enacted them into law, the Senate can change the rules without passing a new law. When a rule is in law, that law constitutes a rule. That is why it was critically important for the Senate to use the specific language in the model resolution.
There are examples of the Senate adopting things in other resolutions, that do not amend the codified Rules, that also constitute a rule of the Senate. An example of that is S. Res. 75-29 (which was subsequently amended). That resolution created an Interim Committee of the Senate. It looks like a rule, smells like a rule, etc., but it is not included in the Rules of the Senate. Don't believe us? Do a search for "interim" in the codified rules.
Resolutions do not have permanence beyond a session of the Senate. What the 75th Session adopts has no effect in the 76th Session, unless the 76th Session readopts those provisions. Thus, that is why a proper resolution adopting rules includes the language "including applicable provisions of law or resolution that constituted rules of the Senate at the end of the Seventy-Sixth Senate." What that means is, the stuff that constitutes rules that we put elsewhere besides the codified Rules, that stuff is effective during the 77th Session.
Because the Senate did not readopt that stuff, there is no Interim Committee. And because this item is not on today's Senate agenda, they cannot pass a resolution recreating the committee, unless the senators want to violate the Open Meeting Law. Cause and effect: because the Senate did not adopt a proper resolution, the Interim Committee no longer exists.
When A Bill Amends Law, Have It Say That
Today the Senate is scheduled to consider a bill that putatively amends ASUN Public Law 75-7 to add a duty to the Presidential Assistant on Public and Campus Relations (PAPCR). Before mentioning the merit of such a change in duties, first the language of the bill.
A BillAside from the enacting clause not being in the proper form--"students" should be capitalized--(yes, that is in law), the bill does not amend the law. The bill must be drafted in the present tense (i.e. "the ABC Act is amended by..."). Thus, a properly drafted bill would say, after the enacting clause
Expanding the duties of the Presidential Assistant on Public and Campus Relations; Amending Public Law 75-7.
Be it enacted by the Senate of the Associated students,
Amending Public Law 75-7 Sec.402 , by inserting line I after line h, “i.) To be a public and media relations advisor to the Speaker of the Senate and all Committee Chairpersons.”
Section 402 of ASUN Public Law 75-7 is amended by adding at the end the following:Instead of saying "inserting," the word "adding" is used, but only when something is being inserted at the end of something else. To insert implies putting it in between something; to add implies putting it at the end. And yes, that double period at the end of the sentence is proper. The period on the inside of the closing quotation mark indicates to include a period to the language that is being added by the amendment. The period mark on the outside of the quotation mark indicates that is the end of the sentence beginning with "Section 402...". Bills must be drafted in incredibly literal terms. No period within the quoted material, no period gets enacted into law.
"(i) To be a public and media relations advisor to the Speaker of the Senate and all Committee Chairpersons.".
The title should also be rephrased. Bill titles typically are phrased in infinitive form (e.g. to amend, to establish, to provide, etc.) Thus, the title of this bill should probably read "To amend ASUN Public Law 75-7 to expand the duties of the Presidential Assistant on Public and Campus Relations."
One more thing, is there is a reason the reports and bills aren't being numbered? Is it really that hard to assign a serial number (starting from #1) based on the order in which the various documents are filed? We know the 76th Session had that particular counting deficit, but you guys too?!
One last thing, there is a specific hierarchy to bills. This style was consistently used during the 75th Session. Section, subsection, paragraph, subparagraph, clause, subclause, item, subitem--thus...
Sec. 402. THIS IS A SECTION.
(a) This is a subsection.
(1) This is a paragraph.
(A) This is a subparagraph.
(i) This is a clause.
(I) This is a subclause.
(aa) This is an item.
(AA) This is a subitem.
Notice that each level in the hierarchy is enumerated with a different style:
- Subsections are enumerated with lowercased alpha characters.
- Paragraphs are enumerated with Arabic numerals.
- Subparagraphs are enumerated with uppercased alpha characters.
- Clauses are enumerated with lowercased Roman numerals.
- Subclauses are enumerated with uppercased Roman numerals.
- Items are enumerated with doubled lowercased alpha characters.
- Subitems are enumerated with doubled uppercased alpha characters.
Separation of Powers and the PAPCR
Surprisingly, this is something the Government Operations Committee has already noticed in its report: this bill likely violates the separation of powers doctrine. The Committee states, "The Committee on Government Operations...questions the idea of giving an executive position additional duty which lies in the Legislative Branch."
Good job, Committee! So then why didn't you kill this bill in committee? Executive branch officers work for the executive branch. To be subject to two masters, the Senate and the President, would be a bad idea. For that reason alone, if this bill should pass, the President should veto it. His officers should work for him and the government (the executive branch), not for anybody else.
We also note that the Committee recommends an amendment. This is interesting because in original legislation reported from committee (meaning it came straight from committee without being introduced and read the first time in the Senate and referred), there cannot be any amendments. What the committee orders reported to the Senate gets sent to the Senate. Thus, if the Committee amended that language in the bill before reporting it, that language should be carried in the bill.
Of course the senators wouldn't know anything about this form and process stuff because nobody is teaching it to them, not to mention that their so-called advisers are not capable of teaching it.
So far, are senators does not seam to be learnings much. Of course, our expert bill drafters would be willing to assist the senators, but we can't force it upon them. All we can do is write about it here and hope it benefits someone.
Subscribe to:
Post Comments (Atom)
Posts
Just leave the kids alone to play in the sandbox. They know not what they do. Let them stay blissfully ignorant.
ReplyDeleteHere's the thing: if the Senate actually had an advisor, there would be no need for these types of posts.
ReplyDeleteThat is true, but I'd have more time to write about other, more important things.
ReplyDeleteMaybe they should ask you to come teach them. You sure seem to know what you're talking about.
ReplyDeleteI would but none of them seem willing to be taught anything from anyone. They see it as a weakness to acknowledge they have much to learn.
ReplyDeleteI find it almost disgrasceful that the Senate even thought about considering the bill, which I guess they did since they have postponed it.
ReplyDeleteIt isn't clear why Senator Purney moved to IP (indefinitely postpone) the bill, as it got the blessing of a committee, but it was a good move. The Senate already has a PR person: it's called the Speaker. The leader of the Senate is the de facto public figurehead.
ReplyDeleteOn another note, even if the Senate had a PR position to try put a shine on their shit, it's still shit.
Actually, I lied. A best drafted bill would read (after the enacting clause):
ReplyDeleteSection 402 of the Executive Branch Act of 2007 (ASUN Public Law 75-7; 75 ASUN Stat. 13) is amended by adding at the end the following:
"(i) To be a public and media relations advisor to the Speaker of the Senate and all Committee Chairpersons.".
The difference is I have added the official citation to the ASUN Statutes at Large, which under ASUN's law is legal evidence of the laws.