Nearly all lawyers experience statutory law exclusively through the vehicle of US Code.

For most lawyers the United States Code is the source for statutory authority. If they think about it, which they rarely do, they realize that the law is also found in the Statutes at Large. Inconvenience arises from two aspects of the Statutes at Large. Later amendments or repeals cannot be noted with the original enactment, nor can the original enactment be repeated each time amendments are published. These are among the reasons why codes have proved useful. Nevertheless, not all laws presently in force, even though “general and permanent”’ are included in the Code. Some samples of these omissions will be given. Furthermore, there remain some instances in which the Statutes at Large have a binding effect despite differing language in an enacted title of the Code. These instances are few enough that it is unlikely that anyone would anticipate them; but the examples given may disappoint lovers of certainty and the United States Code.

BRIEF HISTORY OF FEDERAL CODIFICATION

Manuals on legal research always refer-briefly-to the difference between those parts of the Code which are positive law and those which are only prima facie evidence of law, This distinction is necessary because whatever changes may be made to prepare a Code, these are not “the law” unless the new phrasing has been enacted by Congress.

Positive law is published in the Statutes at Large and in identical language in those titles of the United States Code which have been enacted in their entirety by an Act of Congress (with simultaneous repeal of those scattered parts of the Statutes at Large in which the sections of the newly enacted title originated). Titles, once enacted, and their direct amendments are “legal evidence of the laws” 1 U.S.C. 204; but those titles of the United States Code which have never been enacted as a whole are merely prima facie evidence of the law. For amendments and additions to these laws, though the Code is nearly always accurate, the exact language Congress has adopted is certain to be found only in the Statutes at Large. When that language has required some adjustment to be fitted into the Code, and when an unforeseen case arises in which the modifications suggest an interpretation different from that of the language in the Statutes at Large, the latter controls.

Historically, the distinction between enacted and unenacted code titles can be understood by reviewing the controversy over the Revised Statutes of 1873 which Congress enacted in its entirety to simplify the task of statutory research. In 1866, Congress authorized and President Andrew Johnson appointed a committee of experts to select, organize, and harmonize all the statutes then in force. Congress then enacted the compilation prepared by the committee, and repealed all prior laws without waiting long enough for critical reaction. Despite allegedly elaborate reviews of the end product, a storm of protest arose, reacting to numerous enors that produced changes in the law not anticipated by Congress when it enacted at one stroke a complete body of laws for the nation2

No other official codification of federal law was attempted until 1925; and then the Code was not enacted as a whole, but merely authorized as convenient “prima facie” evidence of the law. Though printed in the Statutes at Large (44 Stat. l), the new code was introduced by restrictive language making abundantly clear that preexisting law was not changed, that nothing was repealed, and that in case of conflict the Statutes at Large would prevail. Perhaps for this reason the Code did not appear to make much of a splash in contemporary legal literature. One may search the available indices without finding much more than a five-page note in the American Bar Association That article is a very usefbl account of the “legislative history” of the Code; and it quotes, from the Congressional Record for June 26, 1926, the statement of Representative Roy G. Fitzgerald of Ohio announcing the intent of the House Committee on Revision of the Laws to use the Code as a starting point for a title by title revision,

The process of preparing the United States Code involved reorganizing the material in the Statutes at Large by subject, rephrasing when necessary to clarify or avoid duplication and omitting the obsolete parts and provisions which are not permanent and general. The process of codification today still requires language adjustment. Most changes provide for internal references in statutes, or take account of the implied effect of later statutes on earlier ones. These changes in the language of the Acts of Congress are created by agents charged by Congress with that job (since 1978, the Office of Law Revision Counsel, 2 U.S.C. Q 285); but the changes are not themselves enacted, unless Congress enacts a title as a whole. Until that happens, in practice the Code is relied upon universally, but in the rare case of a conflict between its language and that of an act as passed by Congress and recorded in the Revised Statutes of 1873 or the subsequent Statutes at Large, the original language control^.^

The plan that Representative Fitzgerald announced in 1926 called for the study of individual titles followed by revisions and the enactment of revised titles into positive law, one by one. Of course, once enacted into positive law, those titles of the Code would again be subject to amendments, but this time with a difference. The amendments could be drafted and passed by Congress in language suitable for inclusion into the Code without any intervention by codifiers. This process is now known as “direct amendment” of the Code.

Congress, however, busy with depression and war, did not get around to enacting any titles of the Code into positive law until 1947 when titles 1,4,6,9, and 17 were enacted, and the sections of the Statutes at Large or the Revised Statutes included in these Code titles were repealed. After that time enactment proceeded slowly until, in 1982, Title 31 became the twenty-third title of the Code enacted into positive law.5 Title 49 was enacted in segments (subtitles), a process which was completed in 1994. At present, H. 1292 is pending, which would enact Title 8, Immigration. A list of the titles enacted, identifying the law by which they were enacted, is found in the Historical Note to 1 U.S.C. 5204. The note also shows that some portions of unenacted titles have been enacted, and that some enacted titles have Appendices which have not been enacted.

Before getting to the enactment of individual titles, Congress instituted a thoroughgoing review of the 1925 Code. According to Congressman Harlan, author of the Preface to the seventh supplement to the Code, the reviewers expected to find a thousand errors, but “the closest scrutiny” only discovered 200, all of which were corrected. Some later cases have turned up additional errors, as will be seen, but not terribly many.