Module 1: Sources of Law & the Legislative Function

Statutory law, enacted by a legislature, generally can override common law — judge-made law — but must itself yield to the constitution, the supreme source of legal authority.

Example. A legislature can enact a statute changing a common law rule about landlord liability, but that same legislature cannot enact a statute that violates a constitutional protection — the constitution sits above ordinary statute in the hierarchy.

Historically, this hierarchy came with a real interpretive wrinkle worth knowing: courts developed a canon holding that statutes in derogation of the common law should be construed narrowly, on the theory that the common law reflected centuries of accumulated judicial wisdom a legislature should be understood to disturb only as far as its text plainly required. In practice, this canon let courts read a statute’s actual reach more narrowly than its text might otherwise suggest, effectively giving common law a kind of interpretive inertia even though it formally sat below statute in the hierarchy. Most American jurisdictions have since abandoned or sharply limited this canon by statute or judicial decision, instead directing courts to interpret legislation according to its fair meaning rather than presumptively narrowing it — a real, deliberate shift toward taking the statute-above-common-law hierarchy this section teaches at genuine face value, rather than quietly undercutting it through an interpretive thumb on the scale.

The legislative function generally means creating general, prospective rules — distinct from adjudication (resolving a specific dispute) and execution (enforcing existing rules). Under separation of powers, legislative supremacy has real limits.

Example. A legislature enacting a new speed limit for all drivers is exercising the legislative function; a court resolving one specific speeding ticket is exercising a different, adjudicative function, applying that same rule to one case.

This isn’t merely a descriptive label — the Constitution’s Bill of Attainder Clause makes the general/prospective requirement independently enforceable. United States v. Brown, 381 U.S. 437 (1965), shows what happens when a legislature crosses that line. A federal statute made it a crime for any member of the Communist Party to serve as an officer of a labor union — language that, on its face, looked like an ordinary general rule, but the Supreme Court held it was actually a bill of attainder: legislative punishment targeting a specific, identifiable group for past conduct, without the individualized trial the judicial branch would normally provide before imposing that kind of punishment. The Court reasoned that Congress cannot use the form of a general statute to functionally perform the adjudicative, individual-punishment function the Constitution reserves to courts. Brown is a genuine, real-world confirmation that the general/prospective character this section describes isn’t simply how legislatures typically operate, it’s a constitutional line Congress cannot cross even when dressing up a targeted punishment in generally-worded statutory language.

Requiring passage by two differently constituted chambers creates an internal check against hasty legislation and requires broader consensus. The Presentment Clause then requires presentation to the President before a bill can become law.

Example. A bill favored by a narrow majority in one chamber still has to win support in the other, differently constituted chamber before it can become law — a real structural hurdle, not a formality.

INS v. Chadha, 462 U.S. 919 (1983), shows the Supreme Court enforcing this requirement strictly, even against a genuinely convenient legislative shortcut. Congress had given itself a “legislative veto” over certain executive-branch decisions — a single chamber could override an immigration judge’s decision to suspend a specific person’s deportation, by simple resolution, with no vote in the other chamber and no presentment to the President at all. The House used exactly this power to override a decision favoring Jagdish Chadha, an Indian-origin man born in Kenya who had overstayed his student visa but had been granted deportation suspension by an immigration judge. The Supreme Court struck the legislative veto down, holding that any action having the legal effect of legislation — including overriding an individual immigration decision — must go through the full bicameralism-and-presentment process this section describes, no matter how administratively convenient a one-house shortcut might be. Chadha is the reason Congress cannot design around bicameralism and presentment simply by relabeling an action something other than a “bill” — the constitutional requirement tracks the action’s real legal effect, not its formal name.

The nondelegation doctrine generally requires an intelligible principle guiding any delegation of legislative authority — historically a permissive standard, though the newer major questions doctrine demands much more specificity for issues of major significance.

Example. Congress directing an agency to regulate “in the public interest” has often survived challenge under the traditional test, even though that phrase alone offers fairly limited specific guidance.

The nondelegation doctrine’s permissiveness is genuinely striking once you know its real track record: the Supreme Court has struck down a federal delegation on nondelegation grounds only twice in its entire history, both in 1935. A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), struck down the National Industrial Recovery Act’s authorization letting the President approve industry-drafted “codes of fair competition” — the Court held Congress had supplied no genuine intelligible principle at all, essentially letting private industry groups and the President jointly write binding federal law from scratch. Its companion case, Panama Refining Co. v. Ryan, struck down a related oil-production delegation the same year. Neither case has ever been formally overruled, but no federal delegation has been invalidated on nondelegation grounds since — a real 90-year run of the traditional test upholding delegation after delegation, which is exactly the historical backdrop for the current live debate this module’s exercises cover over whether the doctrine should actually be revived and applied more strictly today.

A presidential system separately elects the executive, who isn’t directly accountable to the legislature. A parliamentary system fuses the two — the executive is drawn from and accountable to the legislature, removable through a vote of no confidence.

Example. A U.S. President serves a fixed term regardless of Congress’s confidence in them (barring impeachment); a prime minister in a parliamentary system can lose office immediately if their own legislature votes no confidence.

The real, practical stakes of this mechanism are illustrated vividly by James Callaghan’s Labour government in the United Kingdom, which lost a no-confidence vote in the House of Commons on March 28, 1979 by the narrowest possible margin — 311 votes to 310, a single vote. Under the parliamentary system this section describes, that one-vote loss was immediately fatal to Callaghan’s government: he had no fixed term to fall back on the way a U.S. president would, and the loss triggered a general election that brought Margaret Thatcher to power the following May. It remains the last time a sitting UK government has been removed directly through a formal no-confidence vote. The episode is a genuinely concrete illustration of exactly the structural difference this section teaches: in a presidential system, a president who loses majority support in the legislature simply governs with reduced legislative success for the remainder of a fixed term; in a parliamentary system, that same loss of confidence can end a government within days.

Bicameralism is common — the U.S. federal government and most U.S. states use it — but not universal; Nebraska’s state legislature is unicameral, and many countries worldwide use single-chamber legislatures too.

Example. Nebraska’s single-chamber legislature shows bicameralism isn’t a strict requirement even within the American federal system — a genuine, functioning exception worth knowing.

Nebraska’s switch to a unicameral legislature has a real, specific political history behind it. U.S. Senator George Norris, already a nationally prominent reformer, campaigned directly for the change, arguing that Nebraska’s two chambers had become genuinely redundant — most substantive negotiation over a bill’s final content happened in largely unaccountable conference committees reconciling differing House and Senate versions, out of public view, rather than in either chamber’s own open floor debate. Norris also argued a single chamber would be easier for voters to hold accountable, since responsibility for a given outcome couldn’t be diffused across two separate bodies each blaming the other. Nebraska voters approved the change by referendum in 1934, and the new unicameral, and officially nonpartisan, legislature first convened in 1937 — a real, still-functioning experiment that remains the only one of its kind among U.S. state legislatures nearly a century later.

The legislature both checks and is checked by the other branches — overriding a veto, confirming appointments, and impeaching officials, while itself remaining subject to judicial review of its own enactments.

Example. A statute Congress enacts can later be struck down by a court as unconstitutional — the same legislature that can override a presidential veto is itself subject to this separate, judicial check.

The veto-override check’s real weight comes precisely from how difficult it actually is to use. Overriding a presidential veto requires a two-thirds vote in both chambers, a genuinely demanding supermajority threshold, and across the full span of American history, Congress has succeeded in overriding only a relatively small fraction of the vetoes ever cast — historically on the order of roughly seven percent of all presidential vetoes have actually been overridden. That real, low success rate is exactly why a veto remains such a genuinely powerful presidential tool in practice: Congress’s formal power to override it is real, but the supermajority requirement means a president facing even a simple majority opposed to a bill can often still make that bill’s enactment genuinely difficult simply by threatening to veto it, since building the two-thirds coalition needed to override is a real, demanding political task most bills never clear.