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NUMERO 15 - 31/07/2019

 What is a legislature in the Twenty-first century?

Legislative bodies have changed significantly in their features and powers over time. This transformation has been affected by the developments that occurred in terms of centrality of Parliaments and Congresses as law-making authorities to which the existence of legislative bodies has been traditionally linked. In a landmark judgment delivered in 2015 the US Supreme Court considered that also the People voting through a referendum can be qualified as “legislature” as the body entitled to make laws. To this end the Supreme Court upheld the right of Arizona voters expressing themselves by means of a ballot initiative, allowed under the Arizona Constitution (Art. IV, pt. 1, §1), to withdraw from the State legislature the power to draw electoral districts and to grant such a power to an Independent Redistricting Commission. This decision hints to the fact that in a certain legal system and even within the same level of government there are thus multiple competitors for the role of “legislature” and the Parliament is just one of them. Nevertheless, this decision, taken with a majority of 5 to 4, was a controversial one: indeed, in his dissenting opinion Chief Justice Roberts convincingly argued that the decision to equate the People to the legislature is devoid of textual and historic basis, contradicts the Court’s precedents and the wording of the Election Clause that clearly refers to a representative institution. Although, as this ruling proves and as clarified in the next section, it would be inaccurate to equate legislative bodies solely to Parliaments in their entirety – also non-parliamentary institutions, e.g. the Council of Ministers of the EU or the People, can act as legislatures and parliamentary organs, like either chambers of a bicameral Parliament or standing committees, fulfill the tasks of legislative bodies –, it cannot be neglected that the first public authority to be associated with law-making still remains the Parliament (or Congress). Yet, today there are several legislative bodies that potentially compete with the Parliament. First of all, in decentralized systems of government, more than one legislature insists on the same territory. In federal and regional systems, sub-national legislatures are normally established. Likewise, in areas of the world subject to processes of regional integration, also supranational legislatures can be established, like the European Parliament (EP) in the EU. So multilevel or multilayered systems of government are usually featured by a plurality of legislative bodies whose relationships are articulated around principles like conferral of powers, supremacy and primacy, subsidiarity and proportionality. Second, even within the same level of government the competition among legislative bodies is displayed horizontally between the Parliament and its organs, on the one hand, and executive bodies and agencies exercising a broad range of rule-making and legislative-alike powers, on the other.  The result has been the adaptation of parliamentary bodies mainly devoted to undertaking a legislative function to exercise in a more systematic manner the scrutiny and oversight function. This is also confirmed by the circumstance that since the end of the 1970s most democratic Parliaments have been described as law-influencing legislatures, i.e. Parliaments influence the law made by other authorities.This article has mainly a classificatory intent, given the semantic confusion that terms like “Parliament”, “Congress”, Legislature” and “Legislative body” tend to create, and aims to trace the evolution of legislative bodies, in particular in multilevel settings. In doing so, it tries to demonstrate that in the Twenty-first century the notions of “Legislature” and of “Legislative body” cannot be attached solely to the Parliament as elected representative institution. Indeed, there are multiple actors enabled to act as legislatures, at supranational, national, and subnational level, even outside the traditional legislative branch… (segue)

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