When to Refer to the U.S. Code Versus the Underlying Statute

by Sam Wice — Wednesday, July 25, 2018@Wice_sam

In the spirit of Professor Nielson’s recent post on in-line versus footnote citations, I wanted to mention a personal pet peeve regarding references to the U.S. Code. The U.S. Code is roughly half non-positive law and half positive law. Even though there are important legal distinctions between the two types of law, attorneys often refer to titles of the U.S. Code without regard to whether the title is positive law. To eliminate this confusion, I will describe congressional practice and suggest that the legal profession broadly adopt that convention: refer to non-positive portions of the U.S. Code by underlying statute and refer to positive portions of the U.S. Code by U.S. Code section.

The U.S. Code is divided into two types of law: non-positive law and positive law. Non-positive laws are titles[1] of the U.S. Code where the title is an editorialized compilation of related statutes. These titles of the U.S. Code are not themselves law. The U.S. Code itself says that the non-positive titles are only prima facie evidence of the law and that the Statutes at Large are legal evidence of the law. Specifically, the U.S. Code will often modify a statute to improve readability. For instance, Section 2 of the Federal Communications Act of 1934 begins by saying that “[t]he provisions of this act shall apply to all interstate and foreign communication by wire or radio . . . .” However, when converting the language to 47 U.S.C. §152, the U.S. Code says that “[t]he provisions of this chapter shall apply to all interstate and foreign communication by wire or radio . . . .” (emphasis added). The U.S. Code refers to the chapter (i.e., Chapter 5) as that is where the Federal Communications Act of 1934 is codified. Only by looking at the statute can a reader determine whether the U.S. Code has any material differences. The Supreme Court has even held a non-positive law provision of the U.S. Code to be an inaccurate description of the law.

When modifying an existing portion of non-positive law, Congress will directly amend the existing statute—to enhance readability, Congress will also include for reference a parenthetical cite to the U.S. Code. When adding new non-positive law, Congress may opt to either create a completely new statute or add new provisions to an existing statute.

Thus, the best way to refer to a provision compiled in a non-positive title of the U.S. Code is by the provision of the underlying statute, while also including a parenthetical or footnote cite to the U.S. Code. The statute is the law that Congress enacted and it is the legal evidence of the law. Please note, the proper reference might not be to the statute that enacted the provision because the enacting statute could have placed the provision in another statute. For instance, portions of the Affordable Care Act (ACA) amended the Public Health Service Act. Unless referring to the statutory history (e.g., a court should enjoin the ACA amendments to the Public Health Service Act), the proper way to refer to any applicable provision would be by the section of the Public Health Service Act.

Conversely, positive laws are titles[2] of the U.S. Code that are actual law. Congress has repealed all the associated, individual statutes and enacted the title itself as a law. For these titles, the U.S. Code is the statute and the U.S. Code considers the positive law titles as legal evidence of the law. When modifying an existing portion of positive law, Congress will directly amend the U.S. Code. When adding new positive law, Congress will create a new section(s) of the U.S. Code.

Therefore, the best way to refer to a provision enacted in positive law is by the provision of the U.S. Code. The U.S. Code is the actual law that Congress enacted and it is also the legal evidence of the law. Further, for sections of the U.S. Code where Congress enacted the underlying statute before the applicable title became positive law, there is no longer any non-repealed statute to which to refer.

Looking forward, Congress is making steady progress in turning the entire U.S. Code into positive law. To create positive law, the non-partisan Office of the Law Revision Counsel prepares a codification bill for Congress. In addition to restating all the applicable statutes, the Office of the Law Revision Counsel tries to improve the organization of existing law and create a flexible framework that can accommodate potential, future legislation. In the last ten years, Congress has enacted three U.S. Code titles into positive law. This year, the Office of the Law Revision Counsel has prepared for Congress a bill to enact Title 6 of the U.S. Code as positive law. With the slow progress of enacting titles into positive law and many of the more complicated titles of the U.S. Code remaining, the distinction between the non-positive and positive law titles of the U.S. Code will likely remain important far into the future.

[1] Non-positive law titles are Titles: 2, 6, 7, 8, 12, 15, 16, 19, 20, 21, 22, 24, 25, 26, 27, 29, 30, 33, 34, 42, 43, 45, 47, 48, 50, and 52.

[2] Positive law titles are Titles: 1, 3, 4, 5, 9, 10, 11, 13, 14, 17, 18, 23, 28, 31, 32, 35, 36, 37, 38, 39, 40, 41, 44, 46, 49, 51, and 54. Please note, there is no Title 53.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

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About Sam Wice

Sam Wice is a former analyst at the Congressional Budget Office and a former Council Member of the American Bar Association’s Section of Administrative Law and Regulatory Practice. He can be reached at sam.wice[at]outlook.com.

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