What makes a U.S. congressional bill non-binding?

June 23, 2008 10:53 AM

What makes a U.S congressional bill non-binding? Is there a way to tell from the text of the bill itself?

I have seen a number of news articles that state that the U.S. congress has passed non-binding legislation. My understanding is that because this legislation is non-binding, it has no legal force, does not have to be signed by the president and can't be vetoed by the president.

If the details of what I have said so far are wrong, please let me know but my main question is: What makes a bill non-binding. I have looked through the text of several bills that have been identified as non-binding but I don't see the word "binding" anywhere in them. I don't see anything in the text that of the bill that specifically says it does not go on to the President.

Perhaps it's just procedural. Maybe a non-binding bill just doesn't get passed on to the president? Maybe there's a little check box up in the corner that says "binding [x]" This seems like it should be an obvious thing but I have not yet found an answer.

Thanks.

- Dave

posted by metadave to law & government (11 comments total)

Your right. With out the sig of the commander-in-chimp resolutions do not carry the force of law. Well sort of.

A non-binding resolution is any piece of paper which comes of either the House or the Senate (or in the case of a Join Resolution - both) that is not signed by into law by the executive.

There has been an on going debate among scholars - oh, for a few centuries now - whether some resolutions carry the force of law even though they do not follow the presentment clause. For instance, most are used for appropriations or to setup committees - so they are actionable in a way that a "simple statement" isn't.

It's a good question though, and a subject for endless debate in any Poli-Sci congressional class...
posted by wfrgms at 11:15 AM on June 23, 2008

Ugh. your = you're - good thing this post does not carry the force of law.
posted by wfrgms at 11:15 AM on June 23, 2008

Forms of congressional action

In short, you have:

• bills (S. # or H.R. #, depending on whether they originate in the Senate or the House), which must be passed by both houses and signed by the president (or, if not signed by the president, passed by a two-thirds majority of both houses) and are binding if they pass
• joint resolutions (S.J. Res # or H.J. Res #), which have the same passage criteria as bills and are also binding if they pass
• concurrent resolutions (S. Con. Res. # or H. Con. Res. #) which are passed by both houses, but are not signed by the president, and are not binding
• simple resolutions (S. Res. # or H. Res. #) which are passed only by the house they originate in, and are non-binding.

Strictly speaking, only the first of these is referred to as a "bill." Although the others are also text documents which get debated and voted on, they're resolutions, not bills.
posted by DevilsAdvocate at 11:41 AM on June 23, 2008

To expand just a bit on what wfrgms said, in most American legislators there are two sorts of bills you see - resolutions and proper bills. If you look at what, say, the Senate passes you will see these denoted slightly differently: a bill that will have the force of law and will go to the president for his signature will be called, e.g., S. 236. On the other hand, a resolution, which will not go the president and will not even go to the other chamber (unless it is a joint resolution) will be denoted as, e.g., S.R. 236. The 'R' of course stands for resolution.

The difference, in a practical sense, is like this. A bill - S. 236 - must originate in one chamber, pass that chamber, travel to the other side, pass there, and then be given to the president to sign (this last step is the presentment issue wfrgms brings up). It's of course much more complex than this, but basically if these steps are met the bill has met all the constitutional requirements to become a binding law.

On the other hand, each chamber, or both chambers together, may pass resolutions. Often these will be referred to as, say, "sense of the Senate resolutions." What that phrase means is that the Senate, or the House, or the Congress as a whole is taking a position on some issue, but they aren't actually passing a law regarding it. This came up with the withdraw timetable, with some members wanting a resolution that would call for a withdrawal by a certain date. This would have no binding effect, but it would express the Congress' opinion on the issue.

The other type of resolution that wfrgms raises deals with the other primary purpose of resolutions, which is the organization and functioning of the Congress itself. When I worked in the state legislature, for instance, the House rules were passed at the beginning each session as a long resolution. This binds the chamber, and it establishes the functioning of committees and the process by which bills pass through the chamber beyond the bare-bones required by the Constitution. This need not be a law because each chamber has the power to decide its function for itself, but it still has binding force because, e.g., a bill can only pass through committee by following the rules laid out in the resolution. There are similar issues with the resolutions passed by the House Rules Committee regarding the length of debate, which are undoubtedly important but are wholly intra-Chamber. This was also important if you remember the debate in the Senate about the filibuster, which exists only in the Senate rules.

On preview, DevilsAdvocate is a bit better on the specifics of the US Congress than my response is, because my own experience is at the state legislature level where things are slightly different. Nonetheless, I think that most of what I said holds true.
posted by ecab at 11:48 AM on June 23, 2008

Well, it's not that concurrent or simple resolutions aren't binding.

Concurrent resolutions can be binding... on Congress. I'd need to double-check, but matters such as the setup of and appointments to the various joint committees are probably dealt with by concurrent resolutions. Likewise, adjournments can be dealt with through CR.

Likewise, simple resolutions can be binding. The most obvious examples are expulsions from the House or Senate; these are simple resolutions (H Res, S Res), and they are most assuredly binding upon the members being expelled. Likewise, impeachments are or can be simple resolutions, and they are binding upon the person being impeached (and also, sort of, on the Senate).

Simple resolutions are just those things that a single chamber of Congress can do without anyone else's say-so.

The things you're thinking of are mostly going to be "sense of the Congress" type of documents:

Whereas blah blah blah,

Be it resolved by the House and Senate of the United States in Congress assembled that:

Your favorite band sucks, and that your mother smells like an orangutan's hemorrhoid.
posted by ROU_Xenophobe at 12:06 PM on June 23, 2008 [1 favorite has favorites]

in most American legislators there are two sorts of bills you see - resolutions and proper bills

Except in Congress, there's no functional distinction between a bill and a joint resolution.
posted by ROU_Xenophobe at 12:09 PM on June 23, 2008

The notation used by Congress can add to this confusion. Properly, House bills are designated as HR123, Senate bills as S123. House resolutions are denoted HRes123, Senate resolutions SRes123. Many folks get confused by the HR--they think it's a resolution, when the HR really stands for "House of Representatives."
posted by MrMoonPie at 12:28 PM on June 23, 2008

Thanks to everyone who answered. This makes it quite a bit clearer.
posted by metadave at 12:29 PM on June 23, 2008

IAAL: The above answers re. Resolutions, Study Bills, etc... are correct. If your question has to do with whether a particular law is "binding" (i.e., enforceable via the courts on individual citizens), then unless the "law" you are looking for is not here (government site) or here (more usable site at Cornell), it's not law (i.e., not binding on anyone). These are just two of many, many locations online where you can find U.S. Code sections; I prefer the Cornell site for its organization.

As a general rule, unless you can find a "United States Code" citation for any particular law, it's not a "law."

As for citing to the section of law once you've found it, this explains the traditional lawyer's "Blue Book" style for specific description of the Code section you're referring to.

Once you've mastered the Code, you will be allowed into the deep end from which many a lost soul has never returned: the C.F.R.
posted by webhund at 12:45 PM on June 23, 2008

webhund, how often are those sites updated? It's my understanding that laws are binding the day, nay, the moment they're signed, unless otherwise specified in the text (as is often the case). Unless those Code sites are updated continuously, I don't understand how you can say nothing is binding unless it's there.
posted by MrMoonPie at 1:00 PM on June 23, 2008

MrMoonPie: It depends. How's that for a lawyerly answer. Seriously, a new federal/state law can be effective on the date that it is signed on or on a later date. For example, the recent federal legislation signed by Still-President Bush (sorry, couldn't resist) regarding genetic testing and insurance privacy is not effective until a later specified date (I can't recall exactly). In my state, Iowa, new legislation is generally effective on July 1 of each year, although there are a fair number of bills that are passed/signed with an immediate effective date. The only correct answer is that you have to look at the effective date for each particular piece of legislation that you're interested in.

As for the updating of particular codes on various websites, this is something that a good, thorough legal researcher will want to know. Once again, you need to look at how current each site is - the better sites will tell you that right up front.

Here's a good resource that explains a number of topics beyond those originally asked on this post. Good luck. These types of questions bring back fond (?) memories of first year law school monotony doing Tepley exercises - which are pretty much the antithesis of Kegel exercises.
posted by webhund at 1:46 PM on June 23, 2008