Repeal is the rescission of an existing law by subsequent legislation or constitutional amendment. Also referred to as abrogation. Repeal can be explicit or implicit. For example, the Twenty-First Amendment explicitly repealed the Eighteenth Amendment, thereby ending the prohibition on the production or importation of alcohol. More commonly, however, a legislative body will repeal existing legislation through the jurisdiction’s constitutionally proscribed legislative process. For example, in the 1995 National Highway Designation Act, Congress explicitly repealed the 1974 National Maximum Speed Law, which set the maximum speed limit in the U.S. to 55 miles per hour.
Implicit repeal, also referred to as repeal by implication, occurs when a legislative act conflicts with an existing law but the legislature did not explicitly repeal the existing law. While the later act supersedes the existing ones, effectively repealing it, courts generally disfavor construing legislative acts to implicitly repeal existing laws. As the California Supreme Court in Penziner v. West American Finance Co. explained, “[t]he presumption is against repeals by implication, especially where the prior act has been generally understood and acted upon.” The court continued in requiring that, to find implicit repeal, “the two acts must be irreconcilable, clearly repugnant, and so inconsistent that the two cannot have concurrent operation.” For example, in State v. Davidson, an Idaho Supreme Court case, the Court found that a later negligent homicide law repealed an earlier involuntary manslaughter statute by implication because the two acts were essentially identical except for the punishment allowed to be imposed upon conviction.
[Last updated in April of 2021 by the Wex Definitions Team]