Legislation

Legislation, the preparing and enacting of laws by local, state, or national legislatures. In other contexts it is sometimes used to apply to municipal ordinances and to the rules and regulations of administrative agencies passed in the exercise of delegated legislative functions.

Legislation involves not only action by a legislative body, but also participation by the executive. Concurrence by the executive is required to make legislation effective except where the exercise of veto power is overridden by a sufficient majority of each house of the legislature. Moreover, the role of the executive involves far more than mere acquiescence or dissent. As the principal officer of state and as a political leader, the executive participates extensively in the formulation of governmental policy and often in the actual preparation of legislation.

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In the United States the subject of legislation is complicated by the federal character of the country. Each state possesses lawmaking power effective within its boundaries. The national government, within the scope of its constitutional powers, may pass legislation effective throughout the nation. Thus, conflicts may arise between a state and the national government. These conflicts are resolved by the courts. The Constitution, treaties, and laws of the United States are the supreme laws of the land, and state statutes passed in contravention of them are unenforceable. Both state and federal courts are obliged to refuse to enforce a state statute contravening federal constitutional or statutory law. Furthermore, the Supreme Court of the United States may review state legislation and decide whether or not it conflicts with the Constitution of the United States or with legislation passed by Congress. The Supreme Court of the United States is the final arbiter with respect to federal legislation and as to state laws insofar as their conflict with federal power is concerned. State legislation also must comply with the provisions of state constitutions. Final decision with respect to such compliance is vested in the state courts.

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The courts have the power not only to determine the constitutionality of legislation but also to decide what legislation means and how it fits into the whole structure of the law. Law in the United States, as in all nations sharing the Anglo-U.S. legal tradition, is derived largely from judicial precedents established in earlier cases. The body of precedents is known as the common law. Legislation in the states sometimes changes the common-law rules. Through the interpretation of such legislation, the courts often may either restrict or extend its application. Thus, in a very real sense, the courts may be regarded as a part of the legislative process.

The relation of courts to legislation is involved also in another peculiar American problem. This relates to the extent to which courts will take “judicial notice” of statute law. When such notice is taken, it is unnecessary for a litigant to prove what the law is. All courts must take judicial notice of the federal laws and the statutes of the state in which suit is brought. However, there are different rules regarding the extent to which the courts will take notice of the legislation of other states. In some states statutes require the courts to take notice of such laws, while in others they must be specially pleaded or proved or else the courts will assume that the law of the other state is identical with either the decisional or statutory law of the state where the trial takes place. After 1936, however, most states solved the problem by adopting the Uniform Judicial Notice of Foreign Law act. This law requires courts to take judicial notice of the common and statute law of other states but not of other countries.