3. This triggers identical compliance.

Law often undergoes significant change between enactment and the time it is organized within the U.S. Code, which is a compilation of Congress's individual enactments. The decision of how to organize these individual enactments within the Code, or whether to leave them out of the Code altogether, is made by a nonpartisan group of lawyers within Congress known as the Office of the Law Revision Counsel. These technical organizers have significant power over how (and in some cases, whether) courts, litigants, and the public see an enacted law, although their power differs depending on the type of Code title. This Article's descriptive and normative claims have real-world application because organization and context are central to interpretation, but interpreters have failed to grapple with how codification affects organization and context. This Article argues that interpreters must understand the full complexity of how law is organized and presented before they can make confident pronouncements about congressional bargains and legislative intent. Understanding the codification process provides a more accurate, albeit more complicated, path forward for statutory interpretation.

INTRODUCTION

Scholars and interpreters treat the main source of compiled law, the U.S. Code, as if it were the U.S. Congress's work, and have given little thought to how the Code comes to be.1 But the creation of the Code involves making changes to the original enactments that can obfuscate Congress's work, all in the name of making law easier to access and read. The failure of courts and scholars to understand how the Code comes to be, a process known as codification, has left significant gaps in current theories and practice of statutory interpretation.

This Article describes what codification is and the issues it can cause for the judges and scholars who have overlooked it. The words, organization, and context of enacted text are critical to all theories of interpretation, and an accurate account of how enacted text is divided and organized in the Code is necessary but lacking. This Article traces the complicated path laws pass through after enactment. The first stopping point is the Statutes at Large, a chronological compilation of laws as Congress enacted them and the President signed them. Because they chronologically record enacted law, the Statutes at Large do not attempt to incorporate new laws into old laws. This means that in order to recreate a statutory scheme that has been amended many times, a researcher would need to search through multiple volumes of the Statutes at Large to piece together what the law currently is. This recreation would be cumbersome and costly, so Congress developed a solution: an up-to-date compilation of laws, known as the U.S. Code.

The codification process is predominantly the work of the Office of the Law Revision Counsel (OLRC), a nonpartisan group of career lawyers who work within Congress to organize law in the Code. Despite this office's significant role in deciding how the law is presented--or sometimes hidden--it has gone virtually *643 unnoticed by courts and legal scholars.2 In practice, lawyers and scholars seem comfortable looking only to the Code, and ignoring the Statutes at Large, without consideration of how the Code was written.3 Courts and scholars have worked from the assumption that the Code is an accurate reflection of Congress's work and have, at least implicitly, treated OLRC's editorial decisions as law. However, this assumption is often incorrect because OLRC has the discretion to organize and change Congress's work in ways that can significantly affect how it is understood.4 For example, OLRC can decide to codify certain enacted text in notes to the Code rather than the main text. These notes are hidden behind the main text of the Code, along with unenacted editors' notes, in long blocks of text with little organization, making them difficult to locate and identify as enacted text. These can include important enacted provisions like findings, purposes, and rules of construction that are prominently featured at the front of enacted bills but hidden away in notes of the Code.5 Because these notes are separated from the rest of the enacted text they accompanied in the original congressional enactment, they are also difficult to understand in context without looking at the original enactment. OLRC can also decide to leave out enacted text from the Code altogether. This vital decision is made entirely by OLRC's unelected bureaucrats without any available explanation or justification.

Compounding these concerns is this Article's revelation that many federal agencies and Congress's professional drafters maintain their own sets of laws, separate from the Code, that reflect the organization of Congress's original enactments much more closely than the Code does. These compilations, which have gone largely unnoticed by scholars and judges, are often not readily accessible to the public, meaning some sophisticated groups have better versions of the laws *644 than others do, providing an uneven playing field for those groups that likely already have an advantage in accessing and understanding the law. The fact that other sophisticated groups have gone to the effort and expense to maintain distinct legislative compilations that differ significantly in organization, and sometimes content, from the Code is perhaps evidence of the issues with the Code discussed above.

One important fact about the Code that scholars and courts have mostly failed to appreciate is that there are actually two different types of Code titles: positive and nonpositive. The OLRC's role in each of these types is very different. Positive law titles are directly enacted by Congress as they appear in the Code. The OLRC creates the initial version of these titles but they only become law once Congress enacts them. Once positive law titles are enacted, the Statutes at Large cease to be the law, and all future amendments are made directly to the positive law Code.

The second type of Code titles is nonpositive law titles. These titles are unenacted editorial compilations of laws enacted by Congress. Importantly, these titles are not themselves the law but are merely a restatement of the law made entirely by OLRC. The Statutes at Large continue to be binding law, and future amendments to laws contained in nonpositive law titles are made to the original enactments in the Statutes at Large. Understanding how positive law and nonpositive law codification differ is essential to understanding the nature of law. This critical difference has gone unnoticed in the statutory interpretation literature, and courts have mostly failed to make a distinction between positive and nonpositive law.6

Each of these types of law has distinct benefits and complications. Nonpositive law titles of the Code allow the law to be presented in an updated and relatively organized manner, which makes the law more accessible to the public. This is supposed to improve law by making it less confusing and time-consuming to understand. However, OLRC's nonpositive law compilations are sometimes incomplete or misrepresentative,7 and can falsely lead readers to believe they can *645 understand the law without recourse to the full complexity of Congress's original enactments. Nonpositive law codification also often attempts to smooth out rough edges or hide ambiguities created by Congress, in effect imposing an appearance of perfection on Congress's imperfect work. Although the Code makes the law appear as one coherent and contemporaneous law, it is in fact a series of laws synthesized from many different enactments, often from many different Congresses with potentially conflicting goals and purposes. Moreover, OLRC's nonpositive law codification decisions--including how to organize the law, what to omit, and what to relegate to notes--are not publicly available and are not overseen by members of Congress or their staff. The rise of unorthodox lawmaking, like omnibus bills, makes these concerns especially acute. As Congress's enactments combine many different types of legislation into one, less coherent omnibus bill, OLRC's work becomes more critical but raises the potential for OLRC's work to generate something that does not accurately reflect congressional intent. However well-intentioned these unofficial compilations are, interpreters should be forced to grapple with the full ambiguity and inconsistency of Congress's work, warts and all.