Two Keys Words in Legislative Writing: Shall & May

Your Business Blogger(R) served a tour of duty in government and quickly learned that the two most important words in looking at a law were:

Shall, and

May

May meant, well, nothing. If there is a budget… It’d be nice… You have the option… Whatever. I could ignore it.

And like any time-starved senior manager I was desperate to find anything I could ignore.

But what I couldn’t ignore was that four letter word, “Shall.” (We also couldn’t ignore any campaign promises.)

(In the days before Obama…)

Anyway,

Shall sounded nice. A breezy word; sounding like: shallow or sanguine. Simple.

Not.

Yes, those two little words used to dominate my public service life:

May

Shall

Shall or May. In crafting legislation, policy and procedure my two little buddies could dictate or suggest.

Directive or suggestive.

“Shall” was not the first word in a question. ‘Shall’ did not ask, did not seek permission, did not offer options. ‘Shall’ is not squeeshy legalese.

Shall would appear as an ordinary word. But it is not. It is SHALL. It is the Scriptural equivalent of the GREAT I AM.

‘SHALL’ shall not be disobeyed. It meant that the text which follows ‘Shall’ directs that ITS WILL WILL BE DONE.

“Shall” indicated that an action was to be followed. Concrete Action.

‘May’ was a sandy suggestion. An option. An idea whose time may or may not have come.

Whole government departments and the livelihoods of 100’s of thousands of (expensive) bureaucrats hinged on ‘shall’ and ‘may.’

Under Obama’s Health Care proposal. Gary Bauer sends this along,

“Obama’s Death Panel”

Sarah Palin is making headlines again, this time by expressing her views on the national debate over healthcare reform. In a Facebook blog entry, Palin wrote, “The America I know and love is not one in which my parents or my baby with Down Syndrome will have to stand in front of Obama’s ‘death panel’ so his bureaucrats can decide, based on a subjective judgment of their ‘level of productivity in society,’ whether they are worthy of health care. Such a system is downright evil.” I think it’s clear where she stands!

Over the weekend, Washington Post columnist Charles Lane explored the legislation at the root of this particularly controversial aspect of healthcare reform — Section 1233 on end-of-life decisions. Here are some excerpts of his column:

“…at least as I read it, Section 1233 is not totally innocuous. …Section 1233, however, addresses compassionate goals in disconcerting proximity to fiscal ones. …If it’s all about obviating suffering, emotional or physical, what’s it doing in a measure to ‘bend the curve’ on health-care costs? “…the [end-of-life] consultations envisioned in Section 1233 aren’t quite ‘purely voluntary,’… Section 1233, however, lets doctors initiate the chat and gives them an incentive — money — to do so. Indeed, that’s an incentive to insist. …

“What’s more, Section 1233 dictates, at some length, the content of the consultation.

The doctor ‘shall’ [SHALL] discuss ‘advanced care planning, including key questions and considerations, important steps, and suggested people to talk to’; … and ‘a list of national and State-specific resources to assist consumers and their families.’

…Who belongs on ‘a list’ of helpful ‘resources’? The Roman Catholic Church? Jack Kevorkian?”

Emphasis mine.

Lotsa power in SHALL. That’s why “Congress shall make no law…” is so popular.

Lotsa liberty lost in SHALL.

Shall will soon dominate all our lives if Obama has his “health care” way.

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