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It is worth noting that OLRC inhabits an odd place on this spectrum. OLRC is required to prepare the U.S. Code for publication; that aspect of its work is mandatory. But it is up to OLRC to decide when a new title should be created and what it should contain, and Congress is not required to take any action on codification bills prepared by the office. OLRC can organize and reclassify enacted statutes into coherent legal titles, but it is up to Congress whether to formally enact those titles as so-called “positive law.” As *1631 noted, half of the titles of the U.S. Code (including important titles like Title 42, which contains the civil rights laws) have been organized by OLRC (or prior codifiers) but never formally enacted by Congress as positive law titles.

OLRC staff told us several times there is a “total lack of political will” to enact codification bills:

As noted earlier, ambiguities can have a variety of causes, intentional and unintentional. To the extent that cases identify the latter, they reinforce the need for greater attention to the nuances of legislative drafting. The statutory housekeeping mechanism could thus be of use to those within Congress concerned with improving the drafting process.

C. GAPS

A third way to reduce the federal workload is to reduce the scope of federal jurisdiction by eliminating unimportant categories of cases so that judges can devote more time to the cases that remain. The strong opposition to even the most modest recommendations of the Federal Courts Study Committee19 (with the consequent likelihood that only insignificant, technical recommendations will be enacted20) underscores the difficulty with this approach. There may be widespread support for reducing the scope of federal jurisdiction, but there are numerous ways to do this and strong opposition to each one. Because interest groups with narrow, focused demands can often overcome more diffuse support for broad reform,21 none of these solutions has been adopted. Hence, supporters of diversity jurisdiction argue that this jurisdiction is essential and suggest that Congress reduce the federal docket by repealing rights like those conferred in the Federal Employer's Liability Act22 and the Jones Act.23 Lawyers for railroad employees and seamen (and their unions) say that these rights are too important to abandon and recommend instead that Congress concentrate on reducing frivolous prisoner petitions. Civil rights advocates respond that prisoners must have access to federal courts and counsel Congress to eliminate diversity. And so the buck gets passed around and around; in the end nothing is done.24

*78 In any event, even if Congress could agree on what cases to remove from the federal docket, this would provide only a short-term solution. The federal docket necessarily evolves with the nation's substantive goals, and the business of the federal government changes too fast and is too controversial for federal jurisdiction to remain stable. No one foresaw in the 1850s that federal courts would be needed to protect myriad new federal rights by the end of the 1860s. No one thought in the years before the eighteenth amendment that a huge investment of federal judicial resources would be necessary to enforce Prohibition, just as no one foresaw when the amendment was ratified how short its life would be and how quickly this business would disappear. Of more recent vintage, I doubt that many people in the mid-1950s anticipated how important civil rights cases would become. And no one would have predicted as recently as five years ago that we would begin a “war on drugs” requiring a massive investment of federal judicial resources (just as no one can predict how long this demand will last). Our national priorities change so quickly that about the only thing of which we can be sure is that tomorrow's docket will look very different from today's. New laws will be enacted; unforeseen problems will arise; new accommodations will be required.

A legislative second view, set in motion by court decisions on unclear or incomplete congressional prescriptions, could advance the coherence of federal law far more effectively than a second chamber in the Supreme Court. The legislative review we have suggested entails a step less drastic than the creation of a new judicial tier. The second-look device, adequately staffed and diligently pursued by members of Congress, could conserve judicial resources within the federal court system. It could also spare judges some detective work and avoid or dissolve much intercourt conflict. The first branch ought at least to attempt conscientiously an in-house ‘second look at laws' by legislators before adding another rung to the federal judicial ladder.

The Intercircuit Panel has been promoted as a forum with auspicious potential to render federal law more coherent and less likely to generate litigation.99 Regarding congressional attempts to create such a tribunal, one might recall the moral of Maeterlinck's fantasy play about two children who journey afar in search of a wondrous Blue Bird: in the end, the youngsters discover that all along the bird remained caged in their very own home.100

Statutes eventually endorsed arbitration and defined its relation to the courts. The Federal Arbitration Act of 1925 (FAA)27 attempted to ‘revers e centuries of judicial hostility to arbitration agreements . . . and to place them ‘upon the same footing as other contracts.’'28 The FAA applies to contracts within the federal maritime and commerce powers and makes agreements to arbitrate ‘enforceable, save upon such grounds as exist at law or equity for the revocation of any contract.’29 The Act authorizes federal courts to compel arbitration30 and allows them to overturn awards only on very limited grounds, such as corruption of the arbitrator or the granting of an award in ‘manifest disregard of the law.’31

As arbitration became a familiar feature of commercial and labor practice, regularized by its own institutions and mores, courts were less likely to view it as unacceptable ‘rough justice.’ Recent Supreme Court *447 cases generally embrace arbitration.32 One likely explanation for this reversal is the judicial self-interest in reducing burdensome case loads. Many observers—including some federal judges—argue that the case load threatens the federal judiciary's capacity to perform essential functions.33 [FOOTNOTE 33 BEGINS] See, e.g., R. POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 94-129 (1985) (reviewing the debilitating consequences of the ‘caseload explosion’ in the federal courts); Baker & McFarland, The Need for a New National Court, 100 HARV. L. REV. 1400, 1410-14 (1987) (proposing a new court to relieve the Supreme Court's work load); Ginsburg & Huber, The Intercircuit Committee, 100 HARV. L. REV. 1417, 1426-28 (1987) (arguing that elevation of the law-clarifying functions of the Office of Law Revision Counsel would render a new court unnecessary). [FOOTNOTE 33 ENDS] The search for case load solutions may skew legal doctrine,34 and one would expect the Court to err toward excessive receptivity to alternative fora so long as they do not displace the courts' most valued function of deciding major statutory and constitutional cases.

I. BACKGROUND ON 42 U.S.C. § 405(H) AND ITS ANALYTICAL FRAMEWORK: MEDICARE'S JURISDICTIONAL BAR ABSENT EXHAUSTION OF ADMINISTRATION REMEDIES

A. Section 405(h) and Its Legislative History

As has been previously observed (in my initial brief), the House Office of the Law Revision Counsel confirms the observation of the Supreme Court in United States v. LaSalle National Bank cited above, and the attached Joint Committee On Taxation's presentation of the sources of authority for the 1939 and 1954 code sections to the effect that Title 26 (the IRC) is not, in fact, enacted into “positive law”:

“Certain titles of the Code have been enacted into positive law, and pursuant to section 204 of title 1of the Code, the text of those titles is legal evidence of the law contained in those titles. The other titles of the Code are prima facie evidence of the laws contained in those titles. The following titles of the Code have been enacted into positive law: 1, 3, 4, 5, 9, 10, 11, 13, 14, 17, 18, 23, 28, 31, 32, 35, 36, 37, 38, 39, 40, 44, 46, and 49.” United States House of Representatives Office of the Law Revision Counsel

When we study law we are studying text, to one extent or another.1 The graph on the cover of this issue of the Journal of Legal Metrics illustrates one approach to that study. It charts the extent to which two bodies of law - federal statutory and regulatory law - have increased over time. It does so by counting the pages in the United States Code and Code of Federal Regulations from first through the most recent editions.2

The general idea is not new: trace the growth of federal law over time.3 Never before, however, has a side-by-side measurement of federal statutory and regulatory text been compiled from first through current edition. This short essay provides a little background on those two federal codes, a note on the method used to compile the data, and a few observations, as well as the data itself in an appendix.

Part III focuses on the last three words of the EPC, emphasizing the meaning of the word "laws" that was firmly established as of 1868. Lawyers understood the word "laws" (plural) to exclude the decisions of courts, except insofar as courts construe positive laws. The deliberate choice of the words "of the laws," instead of the narrower language "of its laws," envisioned a pivotal role for laws made by Congress.

EPA's claim of authority rests entirely on an improper statutory interpretation that ignores the text of the United States Code and the role of the House Office of the Law Revision Counsel. EPA tries in vain to circumvent the Code, but fails to show that it contains any errors or is otherwise inconsistent or in conflict with the Statutes at Large. EPA further offers nothing in the text, structure, or legislative history of the Act that would permit it to ignore the clear and sensible limitation on its authority embodied in Section 111(d).

EPA's reliance on illusory authority is inflicting real and permanent injury on Murray Energy and its numerous supporting intervenors. This Court can and should stop EPA's ultra vires actions now.

the -- used as a function word before a noun or a substantivized adjective to indicate reference to a group as a whole <the elite>

`(4) ENACT- The term `enact' means passage of a bill or resolution in identical form by both Houses, except a vetoed bill or resolution when the veto message is referred to committee in either House or when either House votes to sustain the veto.

Definition of the word “resolve,” given by Webster is “to express an opinion or determination by resolution or vote; as ‘it was resolved by the legislature;” It is of similar force to the word “enact,” which is defined by Bouvier as meaning “to establish by law”.

[**10] Second, Eastport asserts that the presumption against retroactivity does not apply because the amendment was intended only as a clarification of existing law. HN7 Where an amendment to a statute is remedial in nature and merely serves to clarify existing law, no question of retroactivity is involved and the law will be applied to pending cases. City of Redlands v. Sorensen, 176 Cal. App. 3d 202, 211, 221 Cal. Rptr. 728, 732 (1985). The evidence in this case, however, does not support the conclusion that the amendment to section 66452.6(f) was simply a clarification of preexisting law. The Legislative Counsel's Digest specifically states that "the bill would expand the definition of development moratorium." Senate Bill 186, Stats. 1988, ch. 1330, at 3375 (emphasis added). Since the Legislative Counsel is a state official required by law to analyze pending legislation, it is reasonable to presume that the Legislature amended the statute with the intent and meaning expressed in the Counsel's digest. People v. Martinez, 194 Cal. App. 3d 15, 22, 239 Cal. Rptr. 272, 276 (1987). By its ordinary meaning, the term "expand" indicates a change in the law, rather than a restatement of existing [**11] law. In light of the Counsel's comment, Eastport's argument is unpersuasive.

Nunez deems it critical to this particular analysis that the distinction be made among unenacted titles, enacted titles, and the actual Statutes at Large contained in them. To that end, it is instructive and helpful to set forth 1 U.S.C. § 204 (a) in its entirety.

(a) United States Code.---The matter set forth in the edition of the Code of Laws of the United States current at any time shall, together with the then current supplement, if any, establish prima facie the laws of the United States, general and permanent in their nature, in force on the day preceding the commencement of the session following the last session the legislation of which is included: Provided, however, That whenever titles of such Code shall have been enacted into positive law the text thereof shall be legal evidence of the laws therein contained, in all the courts of the United States, the several States, and the Territories and insular possessions of the United States.

On March 18, 1947, one of the great justices, Felix Frankfurter, gave one of the great speeches on statutory interpretation. He called it “Some Reflections on the Reading of Statutes.”1 Sixty years later, we consider his speech a classic on how to read the statutes. The irony, however, is that we no longer read the statutes. Not in the sense that Frankfurter did. Frankfurter actually did read the actual statutes. He did not read the United States Code; he read the Statutes at Large. He jauntily described himself as “one for whom the Statutes at Large constitute his staple reading.”2 Frankfurter, in other words, did not read imitation law; he read real law. So did everyone else, in Frankfurter's day.

Nowadays, we don't. We read imitation law.

¶1 Pretty much every legal researcher in the United States has to deal with federal statutes. Even in what is mostly a state practice, federal issues arise. Just handling divorces? Think about possible social security benefits post-retirement and who will claim the kids as dependents on federal tax returns. Defending clients charged with state crimes? Remember the criminal procedure guarantees from the United States Constitution. Helping a client set up a business? Don't forget federal labor, trademark, tax, and environmental laws.

¶2 Most of us can find our way around the United States Code, United States Code Annotated, United States Code Service, and United States Statutes at Large. But I still had some questions about codification, so I went exploring, and in this article I will share with you what I learned.

Prosperity blesses our country. Our fiscal policy is fixed by law, is well grounded and generally approved. No threatening issue mars our foreign intercourse, and the wisdom, integrity, and thrift of our people may be trusted to continue undisturbed the present assured career of peace, tranquilly, and welfare. The gloom and anxiety which have enshrouded the country must make repose especially welcome now. No demand for speedy legislation has been heard; no adequate occasion is apparent for an unusual session of Congress. The Constitution defines the functions and powers of the executive as clearly as those of either of the other two departments of the Government, and he must answer for the just exercise of the discretion it permits and the performance of the duties it imposes. Summoned to these high duties and responsibilities and profoundly conscious of their magnitude and gravity, I assume the trust imposed by the Constitution, relying for aid on divine guidance and the virtue, patriotism, and intelligence of the American people.

Statutes, also known as acts, are laws passed by a legislature. Federal statutes are the laws passed by Congress, usually with the approval of the President. Federal statutes are published in three formats:

Second, the question is whether social security is strictly limited to public schemes. As discussed at the start of this chapter, acknowledgement of state responsibility for income protection was at the root of social security, thus stressing the importance of public responsibility. Of course, income protection can also be organised by other parties, including employers, family members, mutual funds and private funds. This raises the question whether such provisions are also to be counted as social security. This question has become more relevant now that in many countries the role of the state is being reduced and some public tasks are privatised, including parts of social security.

There is nothing against including such forms in the concept of social security, for instance, for calculating expenditure on social issues or income redistribution. However, in view of the normative dimension the issue is different, since again the question has to be answered whether the state has fulfilled its obligations. Because of the impact upon the legal position of the persons concerned, it still makes a very important difference as to who is responsible for income redistribution.