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The Dangers of Poor Legislative Drafting

Warren Belmar


  • Poor draftsmanship in legislative bills by Congress can lead to disputes and contentious legal proceedings with the executive branch and judiciary, undermining the legislative process and potentially impacting the balance of power between branches of government.
The Dangers of Poor Legislative Drafting McMillin

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Lawyers are all too familiar with the need for careful draftsmanship of legal documents in order to achieve the objectives of their clients. The failure to do so in a will or contract, for example, creates accountability on the part of the lawyer and inevitably leads to disputes requiring litigation to resolve the meaning of the language used.

When it comes to poor draftsmanship by the Congress, in the exercise of its legislative powers under Article 1, Section 1 of the Constitution, the consequences are much more serious, as it is likely to result in disputes with the executive branch and thereafter even contentious judicial proceedings. And, as I have lamented before, the problems are exacerbated when a “comprehensive reform” bill affecting major sectors of the economy is at issue. This is because, in addition to poor draftsmanship, such legislation usually contains overly broad delegations of authority lacking in specific limits or guidance, has been drafted behind closed doors, and has been rushed to the House and Senate floors for votes without affording members of Congress, let alone the public, ample time to understand what is in the bills and to offer amendments, clarifications, or corrections.

Going forward, the public will be better served and the new Congress will do a better job of legislating if the House and Senate simply follow their own long-standing rules governing the legislative process. Those rules provide the same due process concepts of “notice” and “opportunity for comment” as are contained in the Administrative Procedures Act, the statute governing the promulgation of rules and regulations having the force of law by federal departments and agencies implementing the laws passed by Congress. Adhering to its own rules will render Congress more likely to clearly state what it means and to thoughtfully determine the intended scope, and limits thereon of delegations of authority to the executive branch.

Finally, good draftsmanship achieves another benefit, for, when Congress engages in poor draftsmanship of our laws, it undermines its position as a co-equal among the three branches of government. This is because when Congress arguably creates an ambiguity in a statute, whether intentionally or unintentionally, and is subsequently unwilling or unable to amend that statute to provide clarity, it undermines the separation of powers framework of our Constitution by empowering the executive branch and the judiciary to share, and thereby trump, the law-writing responsibility of the legislative branch. The Supreme Court currently has before it one such example, involving the question whether the executive branch was correct in concluding that Congress, in using the term “state exchange” in the Affordable Care Act, meant that phrase to include a “federal exchange.” By arguably not being clear in its draftsmanship, the Congress has left it for the judiciary ultimately to decide which of two permissible policy positions the Congress adopted.