Federal bills are increasingly complex, making them difficult to understand for the average reader and the seasoned practitioner alike. What a congressional drafter understands to be the import of a given provision could later be discussed and interpreted in committee or on the floor of the House or the Senate. If the bill is enacted, federal agencies may then consider its meaning, either behind the scenes when evaluating their own compliance with the law or through guidance, rules, or agency orders governing third parties. If a litigant challenges an agency’s interpretation of the law, a court may need to resolve the law’s meaning. Although the court’s ultimate goal is to effectuate Congress’s intent, judges may draw on different philosophies or tools to arrive at their conclusions about what the law means.
A basic awareness of the rules and presumptions that apply when construing different components of a bill can help Members and congressional staff identify potential issues with the help of legislative counsel when formulating legislation or avoid interpretive pitfalls when reviewing bills proposed by other offices. For example:
- Titles, headings, and general statements of purpose can help to elucidate the meaning of substantive provisions in the bill, but they generally will not override the plain language of those provisions.
- Formal legislative findings can show whether Congress may legislate in areas typically reserved for the states or has identified harms sufficient to regulate speech or other constitutionally protected activities.
- Defined terms in a bill set the meaning of those terms wherever those definitions apply, even if those terms would normally have a different meaning in everyday usage.
- Language that ostensibly creates rights may not help the intended beneficiaries without an explicit remedy, just as prohibiting conduct may not amount to much without an enforcement mechanism.
- If a bill potentially conflicts with an existing law, a reader may look to see if the bill would repeal the existing law or otherwise address the potential conflict through an exception or a “notwithstanding” clause. In the absence of such language, courts are instructed to try to harmonize the conflicting provisions instead of assuming that Congress implicitly repealed the old law.
- A preemption clause or non-preemption clause may indicate whether the bill displaces state laws on the same subject. Without one, if the bill later becomes law, a court may have to decide whether Congress implicitly preempted state law, presuming that it did not but asking, among other questions, whether it is impossible to comply with both laws.
- A severability clause may persuade a court not to strike down an entire law after concluding that a particular provision in the legislation was unconstitutional.
- Timing rules addressing when a provision takes effect or how long it remains in force override the usual default rules that the provision takes effect upon enactment and remains in force until repealed or amended.
Beyond these considerations about the parts of a bill, it is useful to know how courts have interpreted common legislative
language. For example:
- The word “shall” generally introduces a requirement. While “may” can leave room for discretion, “may not” signals a prohibition.
- Words like “this Act” or “this section” can refer to different language, depending on whether they are used “inside the quotes” in language amending an existing law, or “outside the quotes” as part of the stand-alone bill text.
- And the phrase “notwithstanding any other provision of law” is susceptible to different interpretations depending on the context.
The Supreme Court has advised lower courts to presume that “Congress says what it means and means what it says.” Thus, unless a provision contains an obvious technical error, a court may give effect to clear, though seemingly unintended, language rather than assume that the provision contains a drafting error.
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