Tips for Affecting Laws without Amending

Law can be affected without the need to directly amend the law. The language used in one law can change the effect of language within another law. A provision that does not amend another law is known as freestanding. This means it will stand apart from other law, however, this does not mean it is interpreted apart from the other law. Consequently, it is important for at least one provision to explain the way in which all various provisions relate to one another.

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Phrases that can be used to explain the way in which one provision relates to another include:

  • Except as provided in
  • Subject to
  • Without regard to
  • Notwithstanding
  • In carrying out
  • In applying
  • By
  • Pursuant to
  • Under
  • In accordance with

Legislative Drafters Deskbook by Tobias DorseyThere are also many other phrases that can be used, each offering unique advantages and disadvantages. When determining which phrase will be most beneficial, use a dictionary to assist you in determining the way in which they differ–this is the same method the courts will use when it comes time to read them.

When drafting legislation, bear in mind the dangers of using the “notwithstanding any other provision of law” term. While popular, this phrase is not an effective way to ensure that a new rule will actually prevail over an old rule. First, courts typically do not take this phrase very seriously, because the phrase is not used by Congress. While a court might attempt to provide some meaning to this phrase it can never be clear exactly what that meaning will be. The provision could very well result in disregarding either too few or too many laws. Furthermore, it might disregard laws that did not concern your client.

Whenever your client proposes the use of this phrase, it is better to identify the specific laws that concern the client and then specifically state the laws that are to be disregarded or that do not apply. In the end, this phrase, “notwithstanding any other provision of law,” is indicative of sloppy and lazy thinking. There are much better ways in which to draft legislation that will be far more effective. The final language of your drafting should be clear and precise; neither covering too much or too little.

To learn more about drafting effective legislation, consider taking TheCapitol.Net’s 2-day Legislative Drafting Workshop.

Reference: Legislative Drafter’s Deskbook, by Tobias Dorsey, Sec. 9.40 Affecting without Amending, and Sec. 9.41 Notwithstanding any other Provision of Law.

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