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?