How Laws Are Passed Without Congress

In the United States, Congress is the lawmaking branch of the federal government. 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, be proposed during their election campaign, or be petitioned by citizens or citizen groups. Once a bill is introduced, it is assigned to a committee, which researches, discusses, and makes changes to the bill before it is voted on. If a bill passes one body of Congress, it goes to the other body to go through a similar process. Once both bodies vote to accept a bill, they must work out any differences between the two versions, and then both chambers vote on the same version of the bill. If it passes, they present it to the president. The president can approve the bill and sign it into law or veto it. Congress can, in most cases, vote to override a presidential veto, but 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 pocket vetoed and cannot be overridden. While the lawmaking process generally requires the involvement of Congress, there have been instances of Congress passing laws without full transparency, such as during the War of 1812 and in 1811, when Congress passed a law that was not to be printed or published until directed by the President.

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Congress can pass laws without revealing spending details

In the United States, Congress is the law-making branch of the federal government. The idea for a bill can come from a sitting member of the U.S. Senate or House of Representatives, be proposed during their election campaign, or be petitioned by citizens or citizen groups. Once a bill is introduced, it is assigned to a committee whose members will research, discuss, and make changes to the bill. 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, and voting. If it passes both bodies, 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.

While Congress cannot pass laws without revealing their spending details in the modern era, there are a few ways in which they can obscure spending details. Congress can meet in a secret session, and the Constitution allows for secret material to be omitted from the official journal. While it would be difficult to hide the fact that Congress had met and passed a law, they could use a "classified schedule of authorizations" or a "classified annex" to direct spending on things they do not wish to reveal. Additionally, Congress can pass emergency legislation authorizing spending on something without revealing what it is. For example, on March 3, 1811, Congress passed a law that was not printed or published until the end of the next session of Congress. The proceedings in Congress, including the signing of the bills by President James Madison, also took place in a secret session. Similarly, during the War of 1812, Congress passed a bill in a closed session without telling the public.

Furthermore, while the president cannot pass a law without Congress, they do have some influence over spending. The president can approve or veto a bill, and in most cases, Congress can vote to override a veto. However, if Congress is no longer in session, the bill will be vetoed by default, and this cannot be overridden. This is called a pocket veto. Additionally, the president can withhold or delay spending on programs authorized by Congress through a process called impoundment, which has caused conflicts between the executive and legislative branches in the past. The Line Item Veto Act of 1996 also gave the president more flexibility in controlling how funds allocated by Congress are spent. While the Supreme Court later struck down this Act, it demonstrates the dynamic nature of the relationship between Congress and the president in the law-making process.

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Secret laws can be passed in closed sessions

The US Congress is the federal government's law-making branch. A bill is a proposal for a new law or a change to an existing law. Once a bill is introduced, it is assigned to a committee, which researches, discusses, and makes changes to it. The bill is then put before the chamber to be voted on. If the bill passes one body of Congress, it goes through a similar process in the other body. Once both bodies vote to accept a bill, they 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 for approval.

While the Constitution does not explicitly prohibit Congress from passing secret laws, it does allow for secret material to be omitted from the official journal. Historically, there have been instances where Congress has passed laws in closed sessions without revealing their full details to the public. For example, during the War of 1812, Congress passed a bill in a closed session, allocating funds for a secret cause. The existence of this law was not made public until after the war ended in 1818. Similarly, in the late 1700s, Congress passed a law that was not to be printed or published until directed by the President, effectively hiding the existence of the law and its contents.

In modern times, Congress has continued to pass provisions that give classified addenda legal force, often related to national security and intelligence. Congress has been known to use "classified schedules of authorizations" or "classified annexes" to direct spending on matters they wish to keep confidential. While it would be challenging for Congress to hide the fact that it had met and passed a law in the present day, the content of such laws can remain undisclosed.

To ensure democratic accountability, it is crucial that Congress has access to all secret laws and that there are multiple stages of review within the legislative process. Statutory provisions within classified addenda should be subject to sunsets or declassification reviews to prevent the unchecked growth of government power. Additionally, Congress should provide assurances that secret laws do not impose secret criminal statutes or duties on the public.

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Secret laws can be published later

Secret laws refer to legal authorities that require compliance but are classified or withheld from the public. They are distinct from secret facts, which do not have the same power to obligate, empower, and govern. The concept of secret law is unsettling to many, evoking images of unaccountable governments and liberty being subordinated to state security.

In the United States, the existence of secret laws has become an increasingly common and credible claim, made by scholars, secrecy critics, journalists, and courts. While there are cases where disclosure of certain rules or legal interpretations might harm national security, the public has a right to know the rules under which they live and their government operates. Law implicitly demands publication.

One argument for secret laws is that they can be legitimate if they could withstand public scrutiny and are kept a shallow secret. For example, the public may be aware of the existence of a law but not its details, which are kept secret to prevent the law's purpose from being frustrated. This could include the operational rules for a surveillance method, covert action, or the effective date of price controls.

However, secret laws can also be misused, as seen in the case of the "torture memos" drafted by the Department of Justice's Office of Legal Counsel (OLC). These legal opinions concluded that laws prohibiting torture did not apply to interrogations of suspected members of Al-Qaeda or the Taliban, allowing for a regime of waterboarding, "stress positions," and sleep deprivation. This is an example of how secret laws can be used to mislead the public and undermine transparency and accountability in governance.

To address the issue of secret laws, it is important to first understand the scope and depth of the problem. Professor Dakota Rudesill proposes several principles for governing secret laws, including affirming the supremacy of public law, prohibiting secret criminal law, notifying the public of the creation of secret law, and making all secret laws available to Congress. By implementing such reforms, it is possible to better balance the interests of transparency and national security.

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Congress can pass laws contradicting SCOTUS

Congress is the law-making branch of the federal government in the US. A bill is a proposal for a new law or a change to an existing law. Once a bill is introduced, it is assigned to a committee whose members will research, discuss, and make changes to the bill. 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 and discussion. 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. The president can approve the bill and sign it into law, or they can refuse to approve it, which is called a veto.

Congress can pass any law it wants, but it won't be enforceable if it contradicts a SCOTUS (Supreme Court of the United States) ruling on the Constitution. However, Congress can overrule SCOTUS when it interprets laws passed by Congress. For example, in the case of abortion rights, SCOTUS ruled that the Constitution does not protect abortion and that it can be regulated under state or federal law. Congress could pass a law that says "Abortion must be legal in all states", which wouldn't contradict SCOTUS. This is because SCOTUS did not rule that abortion is illegal, but that it can be regulated.

Additionally, Congress can bar the Supreme Court from reviewing legislation by including a provision at the end of a law stating that SCOTUS cannot review it. This is called jurisdiction-stripping. However, Congress cannot strip SCOTUS of its ability to rule on the constitutionality of a law.

While SCOTUS has the authority to strike down laws that violate the Constitution, it is important to note that not all SCOTUS rulings make passing similar legislation impossible. Many of their rulings could be undone by the passage of laws by Congress. For example, in cases where SCOTUS interprets a law to mean "X" and not "Y", Congress could pass a new law that explicitly states that it means "Y", thereby removing any ambiguity.

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Congress cannot override the Constitution

Congress is the law-making branch of the US federal government. A bill is a proposal for a new law or a change to an existing law. Once a bill is introduced, it is assigned to a committee whose members will research, discuss, and make changes to the bill. 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 and discussion. 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.

However, Congress cannot override the Constitution. The US Constitution outlines the role and powers of the legislature, which is a crucial part of the federal government. The legislature, also known as Congress, is divided into two parts: the House of Representatives and the Senate. Federal courts, including the Supreme Court, have the power to declare laws passed by Congress unconstitutional, thereby invalidating them. Interpretation of laws is also the role of the judiciary, which interprets the laws passed by Congress, determining their application and scope.

Congress cannot directly overturn a federal court decision because of the separation of powers and the system of checks and balances established by the Constitution. Federal courts, including the Supreme Court, have the authority to interpret the law and the Constitution. Once a court has made a ruling, Congress cannot simply reverse that decision. While Congress can propose amendments to the Constitution to overturn judicial interpretations, this requires approval by two-thirds of both houses and ratification by three-fourths of the states.

One of the longest-running debates about how the Constitution is to be interpreted by the government is whether each branch has equal power to decide what the basic document means. This is the theory of "departmentalism," which runs strongly against the long-standing claim by the Supreme Court that it is the final arbiter of constitutional meaning. While Congress can set up lower inferior courts as needed, the Supreme Court is the highest court in the country, with the final say in interpreting the Constitution and federal laws. This power allows the US Supreme Court to check the other branches of government.

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