Cecily Zamora
The process of repealing a law involves formally cancelling or withdrawing it. In the United States, Congress can repeal a law by passing a new law containing repeal language and the repealed statute's location in the U.S. Code. This process is known as an express repeal and results in the deletion of the statute's text from the Code. Implied repeal, on the other hand, occurs when two statutes are mutually inconsistent, resulting in the later statute effectively repealing the earlier one. The repeal of a law can also occur through legislative alteration, where lawmakers repeal or amend citizen initiatives after they have been approved by voters. This process varies across different states, with some requiring supermajority votes or imposing time restrictions. Ultimately, the repeal of a law can be a complex process, involving political and legal considerations, and it is an important mechanism for updating and refining the legal framework of a country.
| Characteristics | Values |
|---|---|
| Type of repeal | Express or implied |
| Process for express repeal | Congress passes a new law with repeal language and the repealed statute's location in the U.S. Code |
| Effect of express repeal | The text of the repealed statute is deleted and replaced with a note summarizing its content |
| Process for implied repeal | A later statute is passed that is mutually inconsistent with an earlier statute |
| Effect of implied repeal | The earlier statute is repealed pro tanto (to the extent of the inconsistency) |
| Partial repeal | Yes, possible when only a specified part or provision of a previous Act is repealed |
| Legislative alteration | Refers to when lawmakers repeal or amend citizen initiatives after they have been approved by voters |
| States with no restrictions on legislative alteration | 11 |
| States with restrictions on legislative alteration | 10 |
| States requiring supermajority votes for legislative alteration | 8 |
| States requiring time requirements for legislative alteration | 8 |
| States requiring voter approval for legislative alteration | 2 |
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What You'll Learn
Express and implied repeal
Express repeal occurs when a statute expressly mentions that an earlier law will no longer be applicable and uses phrases like "shall cease to have effect" or "all provisions that are inconsistent with this Act are hereby repealed". The Legislature doesn’t need to use any particular words or phrases, but it must make its intention to repeal the statute in question clear. The various provisions contained within the newly enacted law are rearranged according to their policy content and cataloged. All repeals of parts of the US Code are express repeals.
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, an express repeal may occur. An example of express repeal is the Statute Law Revision Act 2007 in the Republic of Ireland, through which 3,225 Acts were repealed, dating back to the earliest laws enacted by England during its invasion of Ireland in 1171.
Implied repeal, on the other hand, occurs when two statutes are mutually inconsistent and the later statute implicitly repeals the earlier one. The doctrine of implied repeal is based on the Latin maxim "leges posteriores priores contrarias abrogant", which means that later laws shall abrogate earlier laws that are contrary or in conflict with them. This doctrine applies when there is no possibility of harmoniously constructing conflicting laws, and they cannot coexist.
Implied repeal is established when inconsistency or irreconcilability between the new and former laws is demonstrated, and the new law incorporates the entire subject matter addressed by the former law. However, certain laws may be excluded from the ambit of the doctrine of implied repeal, such as constitutional statutes, which are considered beyond the reach of implied repeal in some jurisdictions.
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Partial repeal
A partial repeal occurs when a specified part or provision of a previous Act is repealed but other provisions remain in force. 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 various provisions contained within the newly enacted law are rearranged according to their policy content and cataloged.
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) to repeal any element of an enacted 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.
A typical situation where an Act is repealed and re-enacted is where the law in the area is being updated but the law being repealed needs to be replaced with one suitable for the modern era. Re-enactment can be with or without amendment, although repeal and re-enactment without amendment normally occur only in the context of a consolidation bill (a bill to consolidate the law in a particular area). 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 it is shown that a law is having far more negative consequences than were originally envisioned.
Implied repeal occurs when two statutes are mutually inconsistent. The effect is that the later statute repeals the earlier statute pro tanto (only to the extent that they are inconsistent). As past and future parliaments are equally sovereign, later parliaments can carry out implied repeal of earlier statutes by passing an inconsistent statute, but inconsistency needs to be established before implied repeal can occur.
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Repeal with savings
In England and Wales, for instance, sections 15 to 17 and 19(2) of the Interpretation Act 1978 outline general savings for all repeals. These provisions are similar to those found in the Interpretation Act 1889. Before 1953, all Statute Law Revision Acts contained a distinct general savings provision known as the Westbury saving, which is no longer in use. Similar provisions can be found in the laws of Ireland and other common law countries.
The concept of "savings" in the context of repeal is important because it allows for a degree of continuity and preservation of certain rights or provisions that may still be relevant or necessary even after the statute has been repealed. This prevents a complete obliteration of the repealed statute's effects and ensures a smoother transition to any new legislation that may be enacted.
It's worth noting that the process of repealing a law in the United States involves Congress passing a new law that contains specific repeal language and references the location of the codified statute in the US Code. This includes details such as the title, chapter, part, section, paragraph, and clause. Once the new law is passed, the text of the repealed statute is deleted from the US Code and replaced with a note summarizing its previous content. At this point, the repealed statute no longer holds the force of law.
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Legislative alteration
The term legislative alteration refers to when lawmakers repeal or amend citizen initiatives after voters have approved them. At the statewide level, it applies only to initiated state statutes since legislatures cannot change initiated constitutional amendments without voter approval.
There are varying restrictions on legislative alteration across different states. Eleven states have no restrictions on legislative alteration, while two states, Arizona and California, require voter approval for substantive alterations. Eight states have either time restrictions, supermajority vote requirements, or a combination of both. For example, North Dakota, Washington, Nebraska, and Arkansas require a two-thirds supermajority vote to repeal or amend approved citizen initiatives. On the other hand, North Dakota and Washington allow the state legislature to make amendments or repeals with a simple majority vote after a specified time period.
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Repeal and re-enactment
In the United States, Congress must pass a new law with specific repeal language and the location of the statute in the US Code to repeal any element of an existing law. This means that Congress and the President must follow the standard law-making process. Once a statute is repealed, its text is deleted from the Code and replaced with a summary note. This express repeal can occur when two statutes are mutually inconsistent, with the later statute superseding the earlier one. However, courts generally avoid interpreting new laws as implicitly repealing existing ones. In the history of the United States, all repeals of parts of the US Code have been express repeals.
In the context of repeal and re-enactment, re-enactment can occur with or without amendments. A repeal and re-enactment without amendments typically happen with a consolidation bill, which consolidates the law in a specific area. On the other hand, a repeal with savings preserves the effects of the repealed statute for specific purposes, such as retaining rights granted under its authority.
At the state level, legislative alteration refers to when lawmakers repeal or amend citizen initiatives after they have been approved by voters. The process and requirements for legislative alteration vary across states. While some states have no restrictions on legislative alteration, others require voter approval for substantive changes or have time restrictions or supermajority vote requirements.
The repeal and re-enactment process can also apply to constitutional amendments. For example, the Twenty-first Amendment, ratified in 1933, repealed the Eighteenth Amendment and ended the Prohibition Era.
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Frequently asked questions
To repeal a law, Congress must pass a new law that includes repeal language and the repealed statute's location in the U.S. Code. The text of the repealed statute is then deleted and replaced with a summary note. This process is known as an express repeal.
An express repeal occurs when a new statute explicitly states its intention to repeal an earlier statute. In contrast, an implied repeal occurs when two statutes are mutually inconsistent, resulting in the later statute implicitly repealing the earlier one.
In the United States, Congress can amend or repeal laws without direct voter approval. However, some states, like Arizona and California, require voter approval for substantive alterations.
While there are no federal requirements for a simple majority, some states require a supermajority vote for repealing laws. For example, North Dakota, Washington, Nebraska, and Arkansas mandate a two-thirds supermajority vote to repeal approved citizen initiatives.
