How Laws Can Be Re-Illegalized: A Legal Perspective

The legislative process is a complex and dynamic one, with laws being constantly proposed, amended, and repealed. While the process of law-making varies across different countries and political systems, the fundamental question remains: can an action that was illegal in the past become legal in the present? The answer to this question is nuanced and depends on various factors, including the specific legal system, the nature of the law, and the timing of the action in relation to the change in legislation. Understanding the legislative process and the potential implications of legal changes is essential for citizens, lawmakers, and legal practitioners alike.

Characteristics and Values

Bills and how they become laws

In the United States, laws begin as ideas. These ideas can come from a Representative or a citizen. Citizens who have ideas for laws can contact their Representatives to discuss their ideas. If the Representatives agree, they research the ideas and write them into bills. When a Representative has written a bill, the bill needs a sponsor. The Representative talks with other Representatives about the bill in hopes of getting their support. Once a bill has a sponsor and the support of some of the Representatives, it is ready to be introduced.

In the US House of Representatives, a bill is introduced when it is placed in the hopper—a special box on the side of the clerk's desk. As soon as a bill is introduced, it is referred to a committee. Both the House and Senate have various committees composed of groups of Congress members who are particularly interested in different topics such as health or international affairs. When a bill is in the hands of the committee, it is carefully examined and its chances of passage by the entire Congress are determined. The committee may even choose to hold hearings to better understand the implications of the bill. Hearings allow the views of the executive branch, experts, other public officials, supporters, and opponents of the legislation to be put on record. If the committee does not act on a bill, the bill is considered to be "dead".

If the committee votes in favor of the bill, it is reported to the floor. This procedure is called "ordering a bill reported". Once the bill reaches the floor, there is additional debate, and members of the full chamber vote to approve any amendments. The bill is then passed or defeated by the members voting. When the House or Senate passes a bill, it is referred to the other chamber, where it usually follows the same route through committees and finally to the floor. This chamber may approve the bill as received, reject it, ignore it, or change it. Congress may form a conference committee to resolve or reconcile the differences between the House and Senate versions of a bill.

If a majority of the Representatives vote yes, the bill passes in the US House of Representatives. The bill is then certified by the Clerk of the House and delivered to the US Senate. When a bill reaches the US Senate, it goes through many of the same steps it went through in the US House of Representatives. The bill is discussed in a Senate committee and then reported to the Senate floor to be voted on. Senators vote by voice. Those who support the bill say "yea," and those who oppose it say "nay." If a majority of the Senators say "yea," the bill passes in the US Senate and is ready to go to the President.

When a bill reaches the President, he or she has three choices. The President can:

• Sign and pass the bill—the bill becomes a law
• Refuse to sign or veto the bill—the bill is sent back to the US House of Representatives, along with the President's reasons for the veto. If the US House of Representatives and the US Senate still believe the bill should become a law, they can hold another vote on the bill. If two-thirds of the Representatives and Senators support the bill, the President's veto is overridden and the bill becomes a law
• Do nothing (pocket veto)—if Congress is in session, the bill automatically becomes law after 10 days. If Congress is not in session, the bill does not become a law. If a bill has passed in both the US House of Representatives and the US Senate and has been approved by the President, or if a presidential veto has been overridden, the bill becomes a law and is enforced by the government

It is important to note that laws can be changed or repealed, but it is not a common occurrence. In the United States, it is generally prohibited for laws to be applied retroactively, meaning that a person cannot be charged for an action that was legal at the time but has since become illegal. However, there may be exceptions, and the enforcement of laws can vary across different jurisdictions.

Retroactive law and past convictions

Retroactive laws, also known as ex post facto laws, are generally prohibited in criminal cases, as per the US Constitution and the constitutions of several other countries. In the US, the Supreme Court's retroactivity jurisprudence distinguishes between criminal and civil cases. While the Court's approach has changed over time, it generally holds that new constitutional interpretations involving criminal rights do not have retrospective effects. This means that if a law is passed today that makes an action illegal, it cannot be applied to prosecute someone for that action committed before the law was passed.

However, there are exceptions to this principle. In the US, for example, the Court has held that when a new substantive rule of constitutional law controls the outcome of a case, state collateral review courts must give retroactive effect to that rule, similar to federal courts engaging in habeas review. Additionally, in some countries like Canada and France, retroactive criminal laws are prohibited unless they benefit the accused person. For instance, in Canada, if the punishment for a crime has decreased between the time of the crime and sentencing, the convicted person is entitled to the lesser punishment.

It is important to note that the retroactivity of laws can be complex and subject to different interpretations and exceptions. For instance, in the US, the Court has adopted a balancing process that results in varying degrees of retroactivity in different cases. Furthermore, while a law may no longer criminalize certain actions, individuals who were convicted under that law may still serve their sentences. This is because the change in the law does not automatically erase the consequences of previous infractions.

In civil cases, retroactive laws can be enacted, although this varies by jurisdiction. For example, in Canada, civil laws can be enacted ex post facto, as demonstrated by a case where a convicted murderer was ordered to forfeit proceeds from a book published after their parole, despite the law being passed after their conviction.

The role of the President in passing bills

In the United States, the President plays a crucial role in the passage of bills, which are proposals for new laws. While the President cannot create laws, they have the power to approve or veto (refuse to approve) bills passed by Congress, which consists of the House of Representatives and the Senate.

When a bill is introduced in the House of Representatives, it is assigned a number and read to all Representatives. It is then sent to a standing committee, which reviews, researches, and revises the bill before voting on whether to send it back to the House floor. Once reported, the bill is debated by the House of Representatives, who recommend changes. When all changes are made, the bill is voted on. There are three methods of voting: Viva Voce (voice vote), Division, and Recorded.

If a majority of the Representatives support the bill, it passes in the House and is sent to the Senate. The process in the Senate is similar. Senators debate the bill, recommend changes, and then vote. If the bill passes in the Senate, it is sent to the President.

The President then has three choices: they can sign and pass the bill, which becomes a law; they can veto the bill, sending it back to Congress with their reasons for the veto; or they can do nothing, which is called a pocket veto, and if Congress is in session, the bill automatically becomes law after 10 days. If the President chooses to veto the bill, Congress can hold another vote, and if two-thirds of Representatives and Senators support the bill, the veto is overridden, and the bill becomes a law.

It is important to note that while the President has the power to veto bills, their veto can be overridden by Congress, and they cannot interpret laws, choose Cabinet members or Supreme Court Justices without Senate approval, or make laws themselves. The President's role in the legislative process is primarily to consider and approve or veto bills passed by Congress, which then become laws enforced by the government.

The role of the House and the Senate

In the United States, the chief function of Congress is to make laws. A bill is a proposal for a new law or a change to an existing law. The idea for a bill can come from a sitting member of the U.S. Senate or House of Representatives or be proposed by people or citizen groups who recommend a new or amended law to a member of Congress that represents them.

The right to petition is guaranteed by the First Amendment to the Constitution. State legislatures may also 'memorialize' Congress to enact specified federal laws by passing resolutions to be transmitted to the House and Senate as memorials. A member may introduce the proposal as-is or redraft it. In any case, a member may consult with the Legislative Counsel of the House or the Senate to frame the ideas in suitable legislative language and form.

Once a bill is introduced, it is assigned to a committee whose members will research, discuss, and make changes to the bill. There are 20 standing committees in the House and 16 in the Senate, as well as several select committees. The committees provide the most intensive consideration of a proposed measure and serve as a forum where the public is given the opportunity to be heard. The bill is then put before that chamber to be voted on. If the bill passes one body of Congress, it goes to the other body to go through a similar process of research, discussion, changes, and voting. While both bodies are equal in how they function, only the House can initiate tax and revenue-related legislation, and only the Senate can draft legislation related to presidential nominations and treaties.

Once both bodies vote to accept a bill, they must work out any differences between the two versions. Then both chambers vote on the same version of the bill. If it passes, they present it to the president. If the president chooses to veto a bill, Congress can vote to override that veto, and the bill becomes a law. However, if the president does not sign off on a bill and it remains unsigned when Congress is no longer in session, the bill will be vetoed by default, called a "pocket veto", which cannot be overridden by Congress.

The right to petition for new laws

The right to petition is a fundamental aspect of a democratic society, allowing citizens to actively participate in the political process and engage with their elected officials. This right is protected by the First Amendment to the U.S. Constitution, which guarantees the freedom of speech and the right to petition the government.

The process of petitioning enables individuals and groups to express their opinions, influence legislators, and ultimately shape the political landscape. It is a powerful tool for all citizens, especially those who are disenfranchised, such as women, racial minorities, and non-voters, to make their voices heard and drive legislative change.

In the context of new laws, the right to petition allows citizens to initiate the creation of legislation that reflects their values and addresses their specific needs. Petitions can be directed to elected representatives at the local, state, or federal level, requesting them to work for the passage of new laws. For example, a statewide petition in California must be filed with the Secretary of State, while a local petition can be filed with the city clerk.

To be considered, petitions must meet certain requirements and adhere to specific procedures. In California, for instance, a petition must be in writing, accompanied by the CBSC Petition Form (BSC-30), and address an issue of statewide significance. The rationale for the petition must fall under specific criteria, such as conflicting or obsolete standards, or the need for a new standard. Once a petition is received, the relevant commission or state agency will review it and determine whether it meets the necessary requirements within a specified timeframe.

The right to petition has a rich history in the United States, particularly in the 18th and 19th centuries, where it played a significant role in advancing social and political causes. For example, during the movement for women's suffrage, women submitted numerous petitions to Congress, with 30,000 women across the country participating by 1878.

Frequently asked questions