How Laws Are Repealed And Removed

Laws can be removed, but the process varies from country to country. In the United States, for example, a law can be removed by being repealed. Congress must pass a new law containing repeal language and the codified statute's location in the U.S. Code. The text of the repealed statute is then deleted from the Code and replaced by a summary note. In the United Kingdom and Ireland, the removal of secondary legislation is referred to as revocation. In England and Wales, the effect of repealing a statute was historically to obliterate it completely from the records of Parliament as though it had never been passed. However, this is now subject to savings provisions within the Interpretation Act 1978.

Removal by Judicial Action

In many jurisdictions, laws can be removed by Judicial Action, for instance, by being declared unconstitutional. This usually follows the pattern of creating a condition wherein any attempt to enforce the law will be met with resistance. For example, in the United States, removal jurisdiction allows a defendant to move a civil action or criminal case filed in a state court to a US district court in the federal judicial district where the state court is located. This is governed by federal statute, and removal jurisdiction exists only if the federal court had a basis for exercising subject-matter jurisdiction over the action at the time the plaintiff filed the action in state court. This could include diversity of citizenship of the parties or the plaintiff's action involving a claim under federal law.

State laws, including municipal laws, are often struck down in courts more frequently than federal laws because they have to survive challenges in more courts. However, it may also be true that state laws are simply more numerous. In the US, the Judiciary Act of 1789 initially provided for removal jurisdiction, and the Jurisdiction and Removal Act of 1875 explicitly granted federal courts jurisdiction over questions arising under federal law. The Judiciary Act of 1887 limited removal to defendants and established the well-pleaded complaint requirement for removal.

When a law is ruled unconstitutional, it remains on the books and can take effect again if the court decision is overturned. This happened in some states after Roe v. Wade was overturned. The details of judicial action to remove laws vary from country to country, but the basic way a law is removed is by being repealed. A typical situation where an Act is repealed and re-enacted is when the law is being updated but needs to be replaced with a modern version. Re-enactment can be with or without amendment, although repeal and re-enactment without amendment usually occur only in the context of a consolidation bill. For example, the repeal of the Poor Laws in England in 1948 reflected their replacement by modern social welfare legislation.

A repeal without replacement is generally done when a law is no longer effective or has far more negative consequences than were originally intended. A repeal with savings preserves the effect of the repealed statute for limited purposes, such as preventing the reversal of any repeals contained within it or ensuring that rights granted under its authority are retained. Conversely, a repeal without savings eliminates the repealed statute completely.

Removal by being declared unconstitutional

A law can be removed by being declared unconstitutional through Judicial action. This is the case in many jurisdictions, including the United States. When a law is ruled unconstitutional, it is not automatically erased from the books; instead, it remains on record and can be reinstated if the court decision is overturned. This scenario occurred in several states following the overturning of Roe v. Wade.

The process of removing a law varies, ranging from a single sentence declaring the complete repeal of a law to more complex versions that only remove specific parts, typically identified by their location in the legal code. In the United States, to repeal a law, Congress must pass a new law with explicit repeal language and the location of the statute in the US Code. This includes specifying the title, chapter, part, section, paragraph, and clause. Once the new law is passed, the text of the repealed statute is deleted from the Code and replaced by a summary note.

It is important to distinguish between express and implied repeals. An express repeal is a straightforward revocation of a previous law, while an implied repeal occurs when two statutes are mutually inconsistent, with the later statute overriding the earlier one to the extent of their inconsistency. Courts generally disfavor implied repeals, as exemplified by the California Supreme Court's statement in Penziner v. West American Finance Co.: " [t]he presumption is against repeals by implication, especially where the prior act has been generally understood and acted upon." The court emphasized that for an implied repeal to be found, the two acts must be "'irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation.'"

A notable example of an implied repeal is the case of State v. Davidson, where an Idaho Supreme Court ruled that a later negligent homicide law implicitly repealed an earlier involuntary manslaughter statute due to their substantial similarity, except for the punishment imposed upon conviction. On the other hand, an express repeal can be observed in the repeal of the Poor Laws in England in 1948, which were replaced by modern social welfare legislation.

In England and Wales, the common law previously held that repealing a statute would "obliterate it completely from the records of Parliament as though it had never been passed." However, this concept is now subject to savings provisions within the Interpretation Act 1978, which allows for the preservation of certain effects of repealed statutes, such as preventing the reversal of repeals contained within or retaining rights granted under its authority.

Removal by passing a new bill

A law can be removed by passing a new bill. This is a common way of amending or repealing existing laws. The process of removing a law by passing a new bill involves several steps and can be initiated by various parties. Firstly, the idea for removing or amending a law can come from a sitting member of the Senate or House of Representatives, or it can be proposed by citizens or citizen groups who petition their representatives. Once an idea for changing a law is introduced, it must be drafted as a bill. This drafting process typically requires specialized legal training and is often done by staff within the Legislative Bill Drafting Commission.

After a bill is drafted, it is introduced to a committee. Committees play a crucial role in evaluating and refining bills before they proceed further in the legislative process. The committee may discuss, amend, or reject the bill. If the committee approves the bill, it is then reported to the full Senate or House for consideration. At this stage, the bill undergoes explanation, discussion, and debate, followed by a vote. If a majority of the Senators or Representatives approve, the bill moves forward.

The bill then enters a similar process in the other chamber. It is assigned to a committee, discussed, amended if necessary, and voted on. If the bill passes this stage, both chambers must work together to reconcile any differences between the two versions of the bill. This is a crucial step to ensure the final bill is consistent and aligned with the legislative goals. Once both chambers agree on a single version, they vote on it. If the bill passes this vote, it is presented to the President.

The President has the power to approve or veto the bill. If the President approves, the bill becomes a law. However, if the President vetoes the bill, it can still become a law if the veto is overridden by a two-thirds majority vote in both the Senate and the House of Representatives. This process demonstrates the rigorous and collaborative nature of lawmaking, allowing for the removal or amendment of laws that are no longer deemed effective or relevant.

Removal by amendment

The removal of a law by amendment involves altering or deleting the text of a law that is deemed ineffective, outdated, or having negative consequences. This process, known as repeal, is a well-established method for removing laws and typically requires the enactment of a new law with repeal language.

In the United States, the removal of a law by amendment follows specific procedures. To repeal a federal law, Congress must pass a bill that explicitly states the intent to repeal. This bill undergoes the standard legislative process, requiring approval from the House and Senate before being signed into law by the President. The repeal language in the bill can vary from a concise statement declaring the law repealed in its entirety to a more intricate version that only removes specific clauses or provisions.

The repeal of a statute can be either express or implied. An express repeal involves explicitly stating the law or its relevant sections, chapters, and paragraphs that are being repealed, followed by a summary of the repealed content. On the other hand, an implied repeal occurs when two statutes are mutually inconsistent, resulting in the later statute implicitly repealing the earlier one to the extent of their inconsistency. Courts generally disfavor implied repeals, requiring that the two statutes be irreconcilable and clearly repugnant for an implied repeal to be valid.

The removal of a constitutional amendment is an even more challenging process. The odds of repealing a constitutional amendment are extremely slim, and it has only occurred once in the history of the United States, specifically with the repeal of the 18th Amendment (Prohibition) by the 21st Amendment. To propose an amendment for repeal, it requires the support of two-thirds of the House and Senate or a constitutional convention called for by two-thirds of the state legislatures, as outlined in Article V of the Constitution.

In addition to legislative action, judicial decisions can also lead to the removal of laws. Laws may be removed by judicial action if they are declared unconstitutional or incompatible with other laws. However, when a law is ruled unconstitutional, it remains on the books and can come back into effect if the court decision is overturned.

Removal by implicit or explicit repeal

A law can be removed by implicit or explicit repeal. Implied repeal, also referred to as implicit repeal, is a priority rule where a later enactment takes precedence over an earlier, inconsistent enactment. This means that when there are conflicting statutes, the newer legislation is considered to have implicitly repealed or amended the older, conflicting statute to the extent of the inconsistency. In the case of Hamnett v Essex County Council, for example, it was held that 'where the provisions of two statutes cannot stand together, the later provisions prevail and the earlier provisions are treated as repealed by implication or amended to the extent necessary to remove the inconsistency'. This is in accordance with the maxim 'leges posteriors priores contrarias abrogant' (later laws abrogate earlier laws).

The concept of implied repeal can be contrasted with express or explicit repeal, where a legislative body explicitly repeals a law. In some jurisdictions, certain laws may be protected from implied repeal through "primacy clauses" that give them a higher status, making them quasi-constitutional. For example, in the United Kingdom case of BH v The Lord Advocate (Scotland), it was held that the Scotland Act could only be expressly repealed due to its "fundamental constitutional nature".

The relationship between implied repeal and EU law has also been a subject of discussion. During the UK's membership in the EU, the EU's supremacy principle did not confer supremacy on Acts of Parliament but only on qualifying EU law norms. However, after the UK's withdrawal from the EU, the 2018 Act's newly domesticated supremacy rule under section 5(2) may reshape priority relations between existing classes of statutes, potentially disrupting the implied repeal doctrine.

The doctrine of constitutional statutes, which insulates certain laws from implied repeal, has uncertain implications for interpretation. For example, it is unclear how far this doctrine will protect identified statutes from being interpreted more narrowly to accommodate other enactments or whether it will proactively motivate interpretations of other enactments.

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