Keith Mack
In the United States, federal laws can be repealed when a bill is passed by the House and the Senate and signed by the president, or when Congress overrides a presidential veto. To repeal any element of an enacted law, Congress must pass a new law containing repeal language and the codified statute's location in the U.S. Code. This includes the title, chapter, part, section, paragraph, and clause. Once a law is repealed, its text is deleted from the Code and replaced by a note summarizing its content. There are two ways to repeal an amendment: one is for the proposed amendment to be passed by the House and the Senate with two-thirds majority votes and then be ratified by three-fourths of the states. The second way is to have a Constitutional Convention, which would require two-thirds of state legislatures to call for it.
| Characteristics | Values |
|---|---|
| Who can repeal a federal law? | Congress or the President |
| Who proposes the repeal? | The President or Congress |
| Who cannot repeal a federal law? | The Courts |
| What happens when a law is repealed? | The law is no longer in effect and cannot be enforced |
| What is the official term for the process of repealing a law? | Repeal, but it may also be referred to as nullification, abrogation, or annulment |
| What is an example of a repealed federal law? | The 18th Amendment, which prohibited the making, transportation, and sale of alcohol |
| What are the ways to repeal an amendment? | Pass a bill with a two-thirds majority in the House and the Senate, then get ratification from three-fourths of the states; or have a Constitutional Convention with two-thirds of state legislatures, then get ratification from three-fourths of the states |
| What is the difference between an express repeal and an implied repeal? | Express repeal is when Congress passes a new law with repeal language and the statute's location in the US Code; implied repeal occurs when two statutes are mutually inconsistent and the later statute takes precedence |
| What is the effect of a repeal? | The text of the repealed statute is deleted from the US Code and replaced with a note summarizing its content; the statute no longer has the force of law |
| Can a repealed statute be saved? | Yes, a repeal with savings preserves the effect of the statute for limited purposes, such as retaining rights granted under its authority |
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What You'll Learn
Congress must pass a new law
In the United States, Congress must follow the same rules and procedures for passing any law when it comes to repealing a federal law. This means that Congress must pass a new law containing repeal language and the codified statute's location in the US Code, including the title, chapter, part, section, paragraph, and clause. Both houses of Congress—the House and the Senate—must pass this legislation revoking an existing law for it to be effectively repealed.
The process of repealing a law involves passing a new law that contradicts or replaces the existing one. This can be done through express or implied repeal. An express repeal occurs when Congress explicitly states its intention to revoke a specific law, citing the relevant details from the US Code. On the other hand, an implied repeal happens when two statutes are mutually inconsistent, resulting in the later statute overriding the earlier one. Courts generally disfavor implied repeals, requiring the two acts to be "irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation."
Congress can repeal a law it has previously passed or even one enacted by the president. However, if Congress repeals a presidential enactment, the president has the power to veto this decision. Additionally, while courts can declare a law unconstitutional, making it null and void, they cannot directly repeal it due to the separation of powers between the judiciary, executive, and legislature.
It is important to note that the process of repealing a federal law can vary in difficulty depending on the nature of the law. For instance, amending the US Constitution is a challenging endeavor, as evidenced by the fact that only one amendment, the 18th Amendment prohibiting alcohol, has ever been repealed and replaced by the 21st Amendment. To repeal a constitutional amendment, there are two methods: gaining a two-thirds majority vote in both the House and the Senate, followed by ratification by three-fourths of the states; or convening a Constitutional Convention at the request of two-thirds of state legislatures, with the drafted amendments still needing ratification by three-fourths of the states.
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Repeal language and the statute's location in the US Code
The United States Code is the official codification of the general and permanent federal statutes of the United States. It contains 53 titles, which are further organized into numbered sections. When a section of the Code is repealed, its text is deleted and replaced by a note summarising the repealed statute, so that lawyers reading old cases can understand the context. The Office of the Law Revision Counsel (LRC) of the U.S. House of Representatives maintains the Code and determines which statutes in the United States Statutes at Large should be codified, amended, or repealed.
The LRC also decides where general and permanent freestanding provisions are placed in the Code. In the case of a non-positive law title, the editors of the Code decide whether a provision is set out as a Code section or as a statutory note. However, in the case of a positive law title, only Congress can add or amend a section of the title. A positive law title is a title of the Code that has been enacted into law as a title of the Code, while a non-positive law title consists of an editorial arrangement of Federal statutes.
Although the LRC is authorised to make editorial changes to the Code, these changes do not constitute positive law. The authority for the material in the Code comes from its enactment through the legislative process. For example, the United States Code omitted 12 U.S.C. § 92 for decades, as it was believed to have been repealed. However, in 1993, the Supreme Court ruled that 12 U.S.C. § 92 was still valid law.
The United States Statutes at Large is a chronological, uncodified compilation of the official text of Acts of Congress. However, it is not a convenient tool for legal research, as statutes addressing related topics may be scattered across many volumes, and it can be challenging to determine which laws are in force at any given time. The United States Code simplifies the process of finding relevant and effective statutes by reorganising them by subject matter and eliminating expired and amended sections.
When a statute is repealed, the repealed statute no longer has the force of law. There are two types of repeals: express repeals and implied repeals. An express repeal occurs when a statute is explicitly revoked or abolished. An implied repeal occurs when two statutes are mutually inconsistent, resulting in the later statute implicitly repealing the earlier one. Courts generally disfavor implied repeals, requiring that the two acts be "irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation".
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Implied repeal
In essence, implied repeal ensures that the most current legislation takes precedence, maintaining the coherence and harmony of the legal system. It is particularly significant during the legislative process, as it allows for the enactment of new laws without the need to formally repeal every conflicting statute. Courts generally look at the intention of the legislature to determine if an implied repeal exists. If it is clear that the new law was intended to replace or modify the existing one, then the old law may be considered implicitly repealed.
The presence of a direct conflict between the provisions of the old and new laws is essential for implied repeal to apply. If both laws can operate without conflict, implied repeal does not come into play. The hierarchical structure of statutes also influences implied repeal. For example, in the United States, a local law that contradicts a state law will typically be superseded by the state law unless specified otherwise.
While implied repeal is a recognised concept, it is generally disfavoured by courts. As the California Supreme Court explained in Penziner v. West American Finance Co., "the presumption is against repeals by implication, especially where the prior act has been generally understood and acted upon". For an implied repeal to be found, the two acts must be irreconcilable, clearly repugnant, and so inconsistent that they cannot operate concurrently.
In some legal systems, certain laws may be protected from implied repeal through the use of "primacy clauses", which state that the act in question supersedes all other statutes until it is specifically repealed. Such acts are considered quasi-constitutional in nature.
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Amendments must be passed by the House and Senate
In the United States, the process of repealing a federal law typically begins with legislation sponsored by members of Congress who disagree with the existing law. This legislation must then pass through the House of Representatives and the Senate. If the proposed repeal legislation is passed by both the House and the Senate, it is then sent to the president for approval.
The president plays a crucial role in this process. They have the power to veto the repeal legislation, which would prevent it from becoming law. However, Congress can override a presidential veto if there is a two-thirds majority in favour of the repeal in both the House and the Senate. In this case, the law is repealed even without the president's signature.
It's important to distinguish between amending and repealing a law. When a law is amended, it is changed in part, whereas a repeal involves completely nullifying the existing law. A repeal can be accompanied by a re-enactment, where the old law is updated, amended, or replaced with a related law. Alternatively, a repeal can occur without replacement, effectively abolishing the provisions of the original law.
The term "repeal" specifically refers to the act of officially cancelling or annulling a previous law. This process is distinct from simply amending or revoking a law. In the context of the US government, both houses of Congress must pass legislation revoking an existing law for it to be considered a repeal.
The repeal of a statute can be express or implied. An express repeal involves using explicit words in a new statute to repeal an earlier one. On the other hand, an implied repeal occurs when two statutes are mutually inconsistent, resulting in the later statute effectively repealing the earlier one to the extent of their inconsistency.
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A Constitutional Convention
The Constitution of the United States, under Article V, grants the authority to amend its provisions. An amendment may be proposed by either Congress, with a two-thirds majority vote in both the House of Representatives and the Senate, or by a constitutional convention called for by two-thirds of state legislatures.
The process of convening such a convention is initiated when two-thirds of state legislatures (34 out of 50 states) call for it. This threshold has never been reached, and thus, none of the 27 amendments to the Constitution have been proposed by a constitutional convention.
Once the convention is convened, delegates discuss and draft proposed amendments. These proposals are then sent to the states for ratification, where three-quarters of the states (38 out of 50) must approve for the amendment to become part of the Constitution.
The 21st Amendment, repealing Prohibition, is the only instance of an amendment repealing another. It was ratified in 1933, with Utah being the 36th state to approve it. This amendment not only repealed the broad prohibition on alcohol but also granted states the power to define alcohol laws within their borders.
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Frequently asked questions
When a federal law is repealed, it is cancelled and is no longer in effect. It cannot be enforced and is replaced by a new law.
To repeal a federal law, Congress must pass a new law containing repeal language and the codified statute's location in the U.S. Code. This includes the title, chapter, part, section, paragraph, and clause. The president can propose repealing legislation to Congress, but both houses of Congress must pass the legislation for the law to be repealed.
Courts cannot repeal a federal law, but they can declare a law unconstitutional, which would normally make the law null and void.
There are express and implied repeals. Express repeals occur when the text of the repealed statute is deleted from the U.S. Code and replaced by a note summarizing its content. Implied repeal occurs when two statutes are mutually inconsistent, and the later statute repeals the earlier one. There are also repeals with and without savings. A repeal without savings eliminates the repealed statute completely, while a repeal with savings preserves its effects for limited purposes.
