How Laws Can Be Undone: Repealing Legislation

The repeal of a law occurs when a new law is passed that contradicts or updates the existing one, rendering the original law ineffective or void. This can be done with or without replacement, where a repeal without replacement is generally carried out when a law is no longer effective or has negative consequences. The process of repeal can be express or implied, with the former involving Congress passing a new law with explicit repeal language, and the latter occurring when two statutes are mutually inconsistent. The concept of repeal also extends to constitutional amendments, where changing or repealing an amendment requires the proposal and ratification by a certain proportion of the House, Senate, or state legislatures, depending on the country.

Implied repeal

Repeal is the removal or cancellation of a law. A typical situation where an Act is repealed and re-enacted is when the law in the area is being updated but the law being repealed needs to be replaced with one suitable for the modern era. Repeal can be with or without savings. A repeal without savings eliminates the repealed statute completely, whereas a repeal with savings preserves the effect of the repealed statute for limited purposes.

The doctrine of implied repeal is a concept in constitutional theory. Implied repeal occurs when a new law contradicts or is at odds with an existing law, so that the two cannot coexist, causing the earlier law to become ineffective without a formal repeal. In other words, implied repeal occurs when a later law conflicts with an earlier one, rendering the original law ineffective without explicitly stating it has been repealed. This doctrine is expressed in the Latin phrase "leges posteriores priores contrarias abrogant" or "lex posterior derogat priori", which translates to "later laws take precedence over earlier ones".

In a legal context, implied repeal plays a crucial role as it helps maintain harmony within the body of laws. It ensures that the most current legislation takes precedence, thus maintaining the coherence of the legal system. The concept is especially significant during the legislative process because it ensures that new laws can be enacted without the cumbersome process of formally repealing every statute that may conflict with them.

In Canadian law, it is possible for a law to be protected from implied repeal by way of a "primacy clause" which states that the act in question supersedes all other statutes until it is specifically repealed. Acts with such primacy clauses are called quasi-constitutional. Under United States law, "implied repeal" is a disfavored doctrine.

Express repeal

Repeal is the removal or reversal of a law. There are two basic types of repeal: a repeal with a re-enactment and a repeal without replacement. A repeal with a re-enactment is used to replace the law with an updated, amended, or otherwise related law. A repeal without replacement, on the other hand, abolishes the provisions of the law altogether.

An express repeal occurs when express words are used in a statute to repeal an earlier statute. In the United States, when a bill is passed by the House and Senate and signed by the president, or Congress overrides a presidential veto, the provisions of the newly enacted law are rearranged according to their policy content and cataloged in the United States Code. To achieve an express repeal, Congress must pass a new law containing repeal language and the codified statute's location in the U.S. Code, including the title, chapter, part, section, paragraph, and clause. This means that Congress and the president must follow the same rules and procedures for passing any law. When statutes are repealed, their text is simply deleted from the Code and replaced by a note summarizing what used to be there. Once deleted, the repealed statute no longer has the force of law. All repeals of parts of the US Code are, therefore, express repeals.

In the context of common law 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. Sections 15 to 17 and 19(2) of the Interpretation Act 1978 set out general savings for all repeals, re-enacting similar provisions from the Interpretation Act 1889. Before 1953, all Statute Law Revision Acts contained a different general savings provision known as the Westbury saving, which is no longer in use. Similar provisions can be found in the law of Ireland and other common law countries.

A partial repeal occurs when a specified part or provision of a previous Act is repealed, but other provisions remain in force. For example, the Acts of Union 1800, which provided for the union of Great Britain and Ireland as the United Kingdom, was partially repealed in 1922 following the Anglo-Irish Treaty, resulting in the establishment of the Irish Free State comprising 26 of the 32 counties of Ireland.

Constitutional amendments

The Constitution of the United States can be amended, and there are two methods to propose an amendment. The first is through a two-thirds majority vote in both the House of Representatives and the Senate, and the second is by a constitutional convention called for by two-thirds of the state legislatures. The President does not have a constitutional role in the amendment process.

Once an amendment is proposed, it must be ratified by three-fourths of the states (38 out of 50) to become part of the Constitution. The ratification process is administered by the Archivist of the United States, who heads the National Archives and Records Administration (NARA). The Archivist has delegated many of the duties associated with this function to the Director of the Federal Register.

The process of amending the Constitution is challenging, and the odds of repealing an amendment are extremely slim. In the history of the United States, only one amendment, the 18th Amendment, which established Prohibition, has been repealed by the states. This was enacted by the Eighteenth Amendment to the United States Constitution and was later repealed by the Twenty-first Amendment.

Despite the low probability of success, there have been recent discussions about repealing several amendments, including the 2nd Amendment, which guarantees the right to bear arms, the 17th Amendment on the direct election of Senators, the 16th Amendment on federal income tax, and the 22nd Amendment on presidential term limits.

Revocation

Firstly, revocation can refer to the repeal of a statute or legislation. This process involves formally deleting the text of the statute from the legal code and replacing it with a note summarising its previous content. The revocation of a statute can be express or implied. An express repeal involves explicitly stating the intention to revoke a law, while an implied repeal occurs when two statutes are mutually inconsistent, with the later statute overriding the earlier one.

Secondly, revocation can occur in the law of contracts. In this context, revocation is a remedy available to buyers who have accepted non-conforming goods from a seller. Buyers have the right to revoke their acceptance if the goods fail to conform to the contract and if the non-conformity substantially impairs the value of the goods. Upon revocation, buyers can cancel the contract and seek a refund.

Thirdly, revocation can refer to the loss of certain privileges, rights, or licenses. For example, the revocation of a driver's license due to egregious or repeated violations of traffic laws. Similarly, in government or military service, certain privileges or passes can be revoked as a form of punishment or to prevent abuse.

Finally, revocation can also be understood in the context of canon law, where grants, laws, contracts, sentences, jurisdiction, and appointments may be revoked by the grantor, their successor, or superior according to the prescriptions of law. Revocation without just cause is typically considered illicit, even if it may be valid in certain circumstances.

Re-enactment

A law may be re-enacted when the legislation in a particular area is being updated. The original law may need to be replaced to make it suitable for the modern era. For example, the repeal of the Poor Laws in England in 1948 was replaced by modern social welfare legislation.

A repeal without replacement is generally done when a law is no longer effective, or it is shown that a law is having far more negative consequences than were originally intended. For instance, the Corn Laws in England were repealed in 1846 after a passionate campaign.

In the context of legislative instruments, re-enactment can refer to the process of reviving or reinstating a legislative instrument that has been repealed or has otherwise ceased to have an effect. This is typically done by enacting a new legislative instrument with the same or similar provisions as the original one.

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