4. Trying to amend law directly is way worse---causes confusion and delay

On the other hand, positive law titles reflect Congress's decisions about both the content and organization of the law because those titles are voted on in Code form. Before a title of the Code is voted into positive law, it benefits from a long process of revision and amendment, with input from interested agencies, congressional committees, and outside parties before being put to a congressional vote. This process identifies “obsolete, ambiguous, or inconsistent provisions”8 and then strives to fix them by improving the Code's organization and wording.9 While positive law codification improves the organization and coherence of law, it is not without problems. Once a title is enacted into positive law, any future amendments must be made by Congress directly to the Code. This imposes on Congress the burden of maintaining the organization of the Code going forward, a burden that Congress has not always shown itself to be able to bear well. Congress must specifically amend the exact places it wants to change, which is no small task when Congress is in a rush or more concerned with enacting a law for *646 political purposes than precisely amending existing law.10 If Congress does not accurately amend a positive law title, then OLRC's only option is to put the enacted text into a note of the relevant title, which sometimes results in entire bills being relegated to positive law notes. Despite its flaws, positive law codification certainly better reflects Congress's work than nonpositive law, and the flaws can generally be attributed directly to Congress, rather than to OLRC.

Congress could address many of the issues with codification this Article identifies by accelerating its use of positive law. As this Article shows, positive law codification is a slow process, and in most years many more pages are added to nonpositive law titles than positive law ones.11 Congress could reverse this trend by choosing to enact more titles into positive law. Although this would increase the burden on Congress, Congress could remedy this by allowing OLRC to be involved in the organizational aspects of drafting laws. As it currently stands, OLRC's work begins only after enactment, and so their expertise in the Code does not carry over to the drafting of legislation, which is left to Congress's professional drafters and other groups who are less expert in the codification process. These types of codification changes would address many of the main issues of codification by reducing OLRC's discretion to affect the substance of the law while still allowing their technical expertise to inform the creation and organization of the law.

This Article's descriptive account of how codification proceeds and the issues it can create also has strong normative implications for statutory interpretation. Courts have frequently made clear that structure and context matter in interpretation, and often draw inferences from the way a law is organized.12 However, they fail to grapple with the question of why it is organized the way it is, and therefore have missed how codification could inform interpretation. For example, courts often assume coherence or continuity in the law when they apply common canons of interpretation like the whole act rule,13 the rule against *647 surplusage,14 and presumptions of consistent usage and meaningful variation.15 A much stronger version of the whole act rule and other continuity canons should apply to positive law enactments than nonpositive law enactments because Congress has chosen the organization and content of positive law titles, meaning that presumptions about the coherency and organization of these titles can accurately be attributed to Congress. Positive law has also benefitted from the long process of revision and amendment necessary to make a title into a relatively coherent set of laws. The positive law enactment process does precisely what the continuity canons presume by updating statutory language, improving organization, removing obsolete and redundant language, and generally making the title read as one law. Nonpositive law enactments, on the other hand, do not have the same scope of process to improve their coherence and therefore are much more likely to be inconsistent, imprecise, obsolete, or poorly organized. Moreover, even when attempts are made to improve the organization or coherency of nonpositive law, these changes are made by OLRC rather than by Congress. This can result in the law appearing more organized and coherent--and therefore different--than what Congress enacted.16

Codification also has relevance to the generally acknowledged trend toward textualist interpretation in the U.S. Supreme Court and other courts over the last *648 fifty years.17 Despite their emphasis on enacted text, textualists seem to have given little thought to the process by which text is organized in its Code form. A better understanding of the codification process could provide a more accurate, albeit more complicated, path forward for textualism. Textualists often speak of attempting to preserve legislative bargains by looking solely to the text.18 However, the Code regularly hides important parts of legislative bargains. The Code also presents various bargains together, as if Congress enacted them simultaneously, when in fact the Code is a combination of potentially conflicting bargains from different Congresses. In so doing, the Code obscures or deemphasizes the ways in which the Code has been changed and amended over time. Any attempt to read only the text of the Code for an understanding of just one legislative bargain is therefore likely to be counterproductive. Interpreters need to understand the full complexity of how and why law is organized and presented the way it is before they can make confident pronouncements about congressional bargains and legislative intent. This is the only way to avoid giving preference to simplicity over accuracy in interpretation.

This Article proceeds in three Parts. Part I provides a descriptive account of the codification process, including OLRC's role in making the Code. Part II examines issues that the codification process creates in the organization and presentation of law--including how it privileges some types of law over others--and proposes ways to improve this process. Part III argues that *649 codification has relevance to many current debates and presumptions about statutory interpretation.

I. THE CODIFICATION PROCESS

A. The Statutes at Large

When a bill is first enacted, it is published as a slip law, which is a standalone publication of that one law by the Government Publishing Office (GPO).19 That law is assigned a Public Law number based on the session of Congress and the order of its enactment within that session. At the end of each session of Congress, the GPO compiles the slip laws from that session into a single volume known as the Statutes at Large.20

The Statutes at Large are a chronological compilation of the laws exactly as they were enacted by Congress, with the same organization and content as the bill approved by Congress.21 So, for example, Public Law 111-240 is the 240th law enacted by the 111th Congress and Public Law 111-241 is the 241st law enacted by the 111th Congress.22 The Statutes at Large provide a permanent historical record of Congress's work and allow readers to see everything each Congress has enacted from its inception to the present.23 They are not updated or changed to account for subsequent enactments. Because the Statutes at Large do not attempt to organize laws into one current compilation, to determine the current law would require a researcher to read the entire Statutes at Large from the time of the original enactment to ensure they accounted for all subsequent amendments.24 For *650 example, Section 1886 of the Social Security Act has been amended over forty times since its enactment in 1982, and so tracking every change would require reviewing every volume of the Statutes at Large issued since 1982.25

B. The Code

The issue of understanding the current state of the law with only the Statutes at Large has long been apparent, and the attempted solution has been an up-to-date compilation of the laws enacted by Congress, known as the U.S. Code. Efforts to codify existing laws into one place go back over 150 years, although many of the early efforts did not go smoothly. In 1866, Congress authorized President Andrew Jackson to appoint a committee of experts to create a harmonized compilation of all existing statutes that would be, in effect, the first U.S. Code.26 However, this effort ran into issues because the compilation made significant changes to the law without Congress's approval and left some laws out altogether.27 Perhaps because of the difficulties in creating the Revised Statutes of 1874, Congress decided to make subsequent compilations only prima facie evidence of the law rather than the law itself.28 In other words, the originally enacted laws were still the law, and the compilation was merely evidence of the law that could be rebutted by recourse to the original.

In 1926, Congress decided to engage in a new codification process by enacting a law that set forth the structure and organization of the Code that mostly *651 survives to this day.29 Congress also made clear that the Code, like the Revised Statutes of 1874, was meant to serve only as prima facie evidence of law.30 To the extent there was any discrepancy between the Code and the Statutes at Large, the latter would prevail.31 Keeping the Statutes at Large as the authoritative source of law was important because this attempt at codification, like earlier attempts, was imperfect. For example, the drafters omitted hundreds of permanent provisions that some believed should have been included in the Code.32

Two decades later, Congress authorized the creation of a new type of codification that Congress would vote into law in Code form.33 This codification was called “positive law” and was to serve as “legal evidence” of the law rather than simply “prima facie evidence.”34 For a title of the Code to become positive law, *652 Congressmust vote to repeal all prior law and enact the title of the Code into law.35 At this point, the slip laws compiled in the Statutes at Large are no longer authoritative, and any future changes in law must be made directly to the Code through an explicit amendment to the relevant positive law title.36 It is important to note, however, that even positive law enactments are not meant to change the preexisting law in place before the positive law enactment unless such a change is clearly stated in the enacted bill.37 In other words, when Congress votes a title of the Code into law, it is not relitigating the words and substantive meaning of the laws within the title.38 Recent positive law enactments emphasize this by including the phrase “without substantive change” in the enacting clause, and earlier enactments contained similar reviser's notes.39

*653 The Code has expanded dramatically in size in recent decades. The original Code in 1926 fit into a single volume covering all areas of law.40 Today, the Code is made up of more than fifty titles, each of which contains a long and complicated set of statutory schemes, on many topics that were not envisioned by the 1926 Code. For example, as shown in Table 1, the number of pages in all titles of the Code nearly tripled from 1976 to 2012.41 Table 1 also shows that positive law codification is slow and ongoing. In the decades since positive law codification began, Congress has enacted twenty-seven of the fifty-four titles of the Code into positive law.42 Other positive law codification projects are underway, with the *654 ultimate goal of converting all of the Code to positive law.43 However, many of the longest and most complex areas of law are still nonpositive. While nearly half of the titles of the Code have been enacted into positive law, Table 1 shows that currently only around 25 percent of the total words of the Code are positive law, with the other 75 percent contained in nonpositive law titles.44 Table 1 also shows that in the past four decades, more than twice as many new pages have been added to nonpositive law titles as to positive law titles. The transition to positive law is a slow and ongoing process, with no end in sight.

[TABLE OMITTED]

C. The Office of the Law Revision Counsel

The most significant development in the codification process in recent decades is the creation of the Office of the Law Revision Counsel (OLRC) in 1974.46 OLRC is a nonpartisan group of career lawyers who work within Congress to organize Congress's enacted statutes within the Code.47 Despite the importance of *655 its work, the role of OLRC in determining how enacted law is presented, or often hidden, has gone virtually unnoticed in the statutory interpretation literature.48 This oversight is noteworthy because OLRC holds substantial discretion in how to organize and present the law within the Code, which is necessarily “a matter of opinion and judgment.”49 Before the creation of this office, special committees and private parties outside of Congress handled the codification process.50 As Table 2 shows, the office started small but quickly increased in size and has stabilized around twelve to fourteen lawyers, most of whom have worked in the office for over a decade.51

[TABLE OMITTED]

OLRC's job begins with the passage of each bill. The office must review each provision to determine where, and whether, it should go in the Code.53 OLRC tracks pending legislation and begins the codification process before Congress even enacts a law.54 This allows OLRC staff to add Code citations to the margins of slip laws and the Statutes at Large. Staff makes codification decisions based on their own reading and understanding of the statutes and generally does not seek or receive input from Congress or congressional staff.55

The OLRC has the most discretion for nonpositive law enactments. For nonpositive law enactments, OLRC's first job is to decide which provisions are general and permanent, because those are the only ones included in the Code. Whether something is general and permanent is often a judgment call, and sometimes OLRC will put provisions that it deems borderline in the notes if they relate to the main text in the Code. When OLRC staff determines that a provision is general and permanent, they must decide how to assimilate it into the Code. When a bill directly amends a provision of existing law, their job is relatively easy since they only need to make the relevant changes to existing law that the bill dictates. When a provision of a bill is freestanding, then OLRC must use its discretion to determine where to place it within the Code.56 A freestanding provision can often relate to many different parts of the Code, with no one place being the obviously best location for the provision. OLRC must also decide whether to divide the law among many parts of the Code and in which part each provision belongs. This work is particularly complicated when a bill is *657 long, with many amendatory and freestanding provisions covering a variety of substantive areas.

Because Congress typically does not draft freestanding provisions with the Code in mind, and because Congress typically has no involvement in the codification process,57 OLRC has significant discretion in how it incorporates freestanding laws into the Code. It is difficult for OLRC to codify in a way that definitively aligns with Congress's preferences. OLRC staff must rely on their own judgment and precedents in deciding how to codify these laws. For example, they might insert the entirety of a relatively long freestanding bill into a new chapter of the Code, while placing a shorter freestanding provision into an existing related chapter.58 Sometimes, OLRC might decide that the text best belongs in a note or appendix instead of the main text,59 or should be left out altogether.60

OLRC also oversees the process of creating and amending positive law titles of the Code.61 When OLRC is working to create a new positive law title, it first prepares an initial draft bill with input from various interested groups like federal agencies, congressional committees, and other experts--a process which takes many years.62 This initial draft is then open for review and comment by interested parties.63 Once this comment period is completed, the amended bill is sent to be *658 voted on by the U.S. House of Representatives and the U.S. Senate.64 A bill to create a new positive law title is not supposed to make substantive changes to the law and therefore is not supposed to be contentious. Occasionally these bills do make changes to previously enacted laws, but these changes are limited to obsolete provisions, inconsistencies, and errors, and should leave unchanged “the understood policy, intent, and purpose of the Congress in the original enactments.”65

The differences between positive and nonpositive law codification are significant. Because a positive law title of the Code is itself the law, when Congress wants to change positive law it must directly amend the positive law title. Unlike nonpositive law, OLRC has no discretion to modify the main text of positive law titles of the Code even if an enacted law relates most directly to the positive law title. If Congress enacts a freestanding provision that closely relates to a positive law title but does not directly amend it, OLRC's only options are to include it in a statutory note following a section of the positive law title or incorporate it into the main text of a nonpositive law title. Moreover, because they are not legislative drafters, OLRC staff do not play a role in deciding how a law is organized during the legislative process, which is left to statutory drafters within Congress.66 OLRC's work begins only after a law is enacted. In the positive law context, OLRC's role is to act as transcribers, adding and deleting as directed but never changing any aspect of the content or organization of the law.