Key drafting questions {{ currentPage ? currentPage.title : "" }}

Once the decision has been made to proceed with new, binding legislation, answering the questions below will help to produce a draft that accomplishes the intended policy and avoids unintended consequences.

  • What is the scope of the policy—To whom or what does it apply?

    • For example, does a policy that applies to the States also apply to the territories and the District of Columbia? Does a policy that applies to “Federal funds” also apply to Federal loan guarantees? Does a policy that applies to individuals also apply to corporations?

    • Should there be any exceptions or special rules for particular persons or things?

  • Questions of administration—Who will be responsible for carrying out the policy?

    • Are the States or the Federal Government responsible?

    • If the Federal Government, which particular entity in the Federal Government?

      • Will the policy be administered by one entity or many?

      • Should a new entity be created to administer the policy?

  • Questions of enforcement—What if the policy is not followed?

    • Will people be encouraged to follow the policy through incentives or punished for violating it (carrots versus sticks)?

    • If there are going to be penalties, should they be criminal or civil?

  • Questions of timing

    • Should the policy take effect on the date of enactment or at some later time?

    • How much lead-time will agencies or private actors need to prepare to implement the policy?

    • Are there constitutional or other legal restrictions on applying the policy immediately?

    • Should the policy apply to different persons or things at different times?

    • If the policy affects current programs or current behavior, should there be any transitional rules?

  • What is the relation between the policy and existing law—Must existing law be amended to avoid policy conflicts?

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