7. Congress has explicitly declared the two are legally distinct, regardless of appearance

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.

By the express language of the Code set forth above, unenacted titles “establish prima facie the laws of the United States.” Only upon enactment by Congress does a title become “positive law the text thereof shall be legal evidence of laws...in all the courts of the United States, the several States...” 1 U.S.C. § 204. From the foregoing, it is indisputable that the only way that a title can rise to the level of legal evidence of the laws contained in it, is for such title to be enacted into positive law by Congress. The clear language of the Code says so.

Title 21 is intended to codify P.L. 91-513, Title II, Sec. 101 et. seq. by the 91st Congress, 2nd session on October 27, 1970, 84 stat. 1242, popularly known as the “Controlled Substances Act of 1970.” In order to properly utilize and understand the Code, one merely has to read the Code. It is a guide to itself. And, perhaps, the first critical guide is the Code's Preface written by then Chairman Roy G. Fitzgerald, dated June 30, 1926, which states in relevant part:

It is the ambition of the Committee on the Revision of the Laws of the House of Representatives gradually to perfect the Code by correcting errors, eliminating obsolete matter, and restating the law with logical completeness and with precision, brevity, and uniformity of expression. Title 1, U.S.C. 1982 ed., p. XII (Preface). (emphasis added).

Congress intentionally and deliberately established the procedures and requirements for codification of the laws into the United States Code. Congress, being essentially a lawyers' body, must be presumed to know the law, and the language which it uses. By the plain language of its Preface, the Code was not intended to be an instantaneous and replicate substitute for the law. The Preface expressly contemplates something more than immediate by the words “gradually to perfect the Code by correcting errors, eliminating obsolete matter, and restating the law.”

To achieve the overall purpose of the Code, Congress established the Office of the Law Revision Counsel of the House of Representatives. 2 U.S.C. § 285. “The principal purpose of the Office shall be to develop and keep current an official and positive codification of the laws of the United States.” 2 U.S.C. § 285a.

The titles of the Code are numbered consecutively, one through fifty. The fifty titles are broken down into only two categories, enacted titles and unenacted titles. [1 U. S.C. § 204(a)]. At the end of 1 U.S.C. § 204, 1982 ed., is the most current list of titles which have been enacted into positive law. The current supplement to Title 1, 1982 ed., contains no other titles which have been enacted into positive law. Only 23 out of the 50 titles have now been enacted into positive law. The 23 titles listed are Titles 1, 3, 4, 5, 6, 9, 10, 11, 13, 14, 17, 18, 23, 28, 31, 32, 55, 37, 38, 39, 44, 46, and 49. As clearly evidenced by the Code, Title 21 has never been enacted into positive law, and is still not enacted into positive law by Congress.

Title enactment is not a mere technicality. Before a title can be used as positive law, it must be enacted, “Because many of the general and permanent laws that are required to be incorporated in the Code are inconsistent, redundant, and obsolete.” 1 U.S.C., 1982 ed., p. IX. (emphasis added).

The Code, itself, contemplates recourse to the Statutes at Large until such time as a title is duly enacted. When the Office of the Law Revision Counsel has completed revising and codifying “for enactment into positive law, each Title of the code”, “all the titles of the titles of the Code will be legal evidence...and recourse to the...Statutes at Large... will no longer be necessary.” Id. (emphasis added).

The cautionary language in the Code's Preface is also substantially set forth in 2 U.S.C., 1982 ed., § 285b(1), which states:

(1) To prepare, and submit to the Committee on the Judiciary one title at a time, a complete compilation, restatement, and revision of the general and permanent laws of the United States which conforms to the understood policy, intent, and purpose of the Congress in the original enactments, with such amendments and corrections as will remove ambiguities, contradictions, and other imperfections both of substance and of form, separately stated, with a view to the enactment of each title as positive law. (emphasis added).

The fact that Title 21 is not yet an Act of Congress is not a disputable fact. The fact that, until Title 21 is duly enacted by Congress, it cannot be used as positive law, is also not a disputable fact. Until Title 21 is duly enacted by Congress into positive law, it can only “look like” a law. Only the Office of the Law Revision Counsel is vested with the power and authority to submit the titles of the Code (one title at a time) to the Committee on the Judiciary for enactment, after all “ambiguities, contradictions, and other imperfections” are removed.

Although the Government fails to recognize the difference between unenacted titles of the Code and their actual Statutes at Large, the Supreme Court makes it explicitly clear. “Though the appearance of a provision has the force of law...it is the Statutes at Large that provides the ‘legal evidence of law.’ ” U.S. Nat. Bank of Ore. v. Ins. Agents, 508 U.S. 439, 124 L.Ed. 2d 402, 414 (1993). The fact that Title 21 has never been enacted by Congress into positive law cannot by any means be deemed a mere technicality.

Congress either meant what it said in §204(a), or it did not. To pursue the path that Congress did not mean what it said leads almost instantly into lawless and unconstitutional territory. Congressional enactment is an absolute necessity for the creation of a valid law. Indeed, § 204(a) embodies the congressional enactment requirements of Art.1, §7. The plain language of §204(a) is clear. If a title has not been enacted by Congress, it is merely prima facie evidence of the laws contained in it.