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Saturday, June 23, 2007

Read the Statute?

Legislation teachers all over the country instruct their students to "read the statute, read the statute, and read the statute."  But what do we mean when we issue to our students this seemingly uncontroversial command?  Most of us probably tell our students to focus on the language of the US Code; that's what the Bluebook wants as a first cite when we cite statutes.  But an illuminating article by Tobias Dorsey in the current issue of the Green Bag suggests that it may be misguided to focus on the US Code to the exclusion of the Statutes at Large, where "real" law appears.  It turns out that the US Code is not quite "law" as Article I, Section 7 imagines it: only the versions that appear in the Statutes at Large actually pass through bicameralism and presentment.  The US Code is drafted by some congressional functionaries after the real law is passed; the functionaries try to make the Code seem coherent by reshuffling and reorganizing sections, and cutting and pasting. 

But can't Congress reasonably delegate this ministerial task (of, say, incorporating amendments into old statutes)?  I'm not sure.  At least for the textualist who focuses on Article I, Section 7, it seems that interpreters must look at the Statutes at Large rather than the US Code.  It isn't mere formalism to be concerned about these "translations."  Yet, as Dorsey shows, virtually no one reads the Statutes at Large anymore.  Scalia himself has forsaken them for the Code.

Although it isn't available online (for free), track down the essay.  It will certainly change the way you think about the US Code.

Posted by Ethan Leib on June 23, 2007 at 01:21 AM in Article Spotlight | Permalink

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Tobias Dorsey has this article in the latest edition of the Green Bag. I haven't had a chance to read it yet, but Ethan Leib recommends it.... [Read More]

Tracked on Jul 11, 2007 12:17:03 AM

Comments

Yes, the article discusses this "complexity". The real point of the article seems to be that irrespective of these complexities, courts, advocates, and commentators routinely treat the Code as authoritative, whatever instructions and canons can be found to suggest otherwise. If that is true, it seems noteworthy.

Posted by: Ethan Leib | Jun 24, 2007 4:15:06 PM

The issue is a bit more complex than that. 1 USC Sec. 204 distinguishes between those titles that have been enacted into positive law by Congress and those that have not. As this memo
http://www.llsdc.org/sourcebook/docs/usc-pos-law-titles.pdf
published by the Law Librarians Society of Washington, DC explains:

"Positive law titles of the United States Code... are legal evidence of the law and need no further authoritative citation as prior acts concerning those titles have been repealed. Other titles to the U.S. Code are "prima facie" evidence of the law (1 USC §204),and are presumed to be the law, but are rebuttable by production of prior unrepealed acts of Congress at variance with the Code. About half the titles of the Code have been revised, codified and enacted into positive law."

Posted by: Howard Friedman | Jun 24, 2007 3:16:04 PM

thanks for bringing the article to my (and everyone else's) attention. if and when it appears on westlaw, i'll give it a look.

Posted by: andy | Jun 23, 2007 7:36:42 PM

You'd enjoy the article, Andy. The rule from 1943 seems to be in decline according to Dorsey. He thinks Lamie v. US Trustee, 540 US 534 (2004) overrules the understanding you cite from 1943 -- an understanding he claims everyone had before its recent decline. I haven't done the research so have no idea if Lamie really means what he claims for it. Indeed, even his quotes in the article leave plenty of room for suspicion.

Although I am inclined to agree, I think, that Congress can't constitutionally delegate law "integration" or "translation" to functionaries, I'm much less confident that the case is as obvious as you think it is. My only point in the post, however, was to suggest that this kind of delegation is far more troubling to the textualists of the world who take Article I, Section 7 quite seriously. Indeed, one might think that they shouldn't be using US Code at all, conflicts with Statutes at Large notwithstanding. But some pragmatists who are less worried about non-delegation and some functionalists in their interpretations of Article I, Section 7 might be more open-minded about the status of the Code, since its existence is itself a product of bicameralism and presentment. That said, I would say the Chadha and Clinton seem evidence enough that pragmatism and functionalism really don't win the day on I.7 questions.

Posted by: Ethan Leib | Jun 23, 2007 4:19:32 PM

Michael,

Here's a few examples:

Darby v. Cisneros 509 U.S. 137, *138, 113 S.Ct. 2539, **2540 (U.S.S.C.,1993) ("We note that the statute as codified in the United States Code refers to “any form of reconsiderations,” with the last word being in the plural. The version of § 10(c) as currently enacted, however, uses the singular “reconsideration.” See this note, supra, at ---. We quote the text as enacted in the Statutes at Large. See Stephan v. United States, 319 U.S. 423, 426, 63 S.Ct. 1135, 1136, 87 L.Ed. 1490 (1943) (“[T]he Code cannot prevail over the Statutes at Large when the two are inconsistent”).")

U.S. Nat. Bank of Oregon v. Independent Ins. Agents of America, Inc. 508 U.S. 439, *448, 113 S.Ct. 2173, **2179 (U.S.Dist.Col.,1993) ("Though the appearance of a provision in the current edition of the United States Code is “prima facie” evidence that the provision has the force of law, 1 U.S.C. § 204(a), it is the Statutes at Large that provides the “legal evidence of laws,” § 112, and despite its omission from the Code section 92 remains on the books if the Statutes at Large so dictates.").

American Bank and Trust Co. v. Dallas County 463 U.S. 855, *864, 103 S.Ct. 3369, **3376 (U.S.Tex.,1983) ("The unenacted 31 U.S.C. § 742, which codified Rev.Stat. § 3701, included the introductory phrase “Except as otherwise provided by law....” Rev.Stat. § 3701 itself did not include that phrase, however, and the Statutes at Large prevail over the Code whenever the two are inconsistent.").

Posted by: andy | Jun 23, 2007 2:29:15 PM

"Are there known examples of the Statutes at Large reading materially differently than the U.S. Code? How many?"

I think there is a case somewhere in which the court did not treat the Congressional findings as part of the law, since those findings were not part of the US Code (even though they were in the Statutes at Large).

Also, the Statutes at Large has all kinds of transitional rules and whatnot that might not make it into the Code.

Posted by: andy | Jun 23, 2007 1:49:56 PM

rtfs

Are there known examples of the Statutes at Large reading materially differently than the U.S. Code? How many?

Posted by: Michael Risch | Jun 23, 2007 8:43:20 AM

"But can't Congress reasonably delegate this ministerial task (of, say, incorporating amendments into old statutes)?"

No, of course not. If Congress wants a collected title to be positive law, then it will enact it as such. The Internal Revenue Title, for example, is enacted into positive law itself. The U.S. Code may well reflect actual law often enough, but no one with a straight face (I would hope) would argue that the U.S. Code is itself law, as opposed to evidence of law.

Posted by: andy | Jun 23, 2007 2:36:17 AM

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