US Code is all that the public AND legal professionals see of statutory law.

The problem of uncodified temporary laws is most acute with those laws that are made temporary by a presumption: the appropriations riders. Except in those cases where there are clear indicia of permanence, or alternatively, where there is clear limiting language,107 the temporary or permanent nature *154 of a rider is once again a matter of judgment.108 There are, of course, constraints to the exercise of that judgment: “The Office of the Law Revision Counsel selects the statutes that meet the statutory requirements for inclusion in the Code.”109 Those statutory requirements, however, are fairly broad. The statute that makes the Code prima facie evidence of the law also states that the statutes in the Code are “general and permanent in their nature.”110

The criteria for permanence can be in dispute. Charles Zinn, Law Revision Counsel to the House Judiciary Committee in the 1950's, stated that “if [an] appropriation bill repeats a particular provision in identical language year after year it is inserted in the Code on the grounds that Congress intends the provision to be permanent.”111 But a U.S. Attorney General's opinion issued at about the same time suggested that successive enactments raised the presumption that the measure was not permanent.112

Successively enacted, but uncodified, appropriations riders highlight the issue of public notice of “temporary” congressional enactments. The omission of a law from the public's official source of information on federal statutes might be excused on the ground that the law is in effect for only a few months. But what if the law has been serially reenacted and in effect for almost a decade? Consider a measure sponsored by Congresswoman Maloney113 that promotes breastfeeding by prohibiting the expenditure of federal funds to prevent a *155 mother from breastfeeding on federal property (a classic exclusion rider). Failing in an effort to enact a stand-alone bill on the subject,114 Rep. Maloney had the measure inserted in the Treasury and General Government Appropriations Act for 2000.115 Since that time the amendment has been enacted every year as part of an appropriations act, except for 2007 when political disputes produced a continuing appropriations act without any general law provisions.116 The lapse in 2007 shows one disadvantage of serial enactments: the law must be continuously re-introduced and steered through the appropriations process, which can be unpredictable. A greater problem is a lack of public knowledge of the existence of this provision. Despite its nine years in the Statutes at Large, the only place a member of the general public is likely to learn about this law is on Rep. Maloney's issue page about breastfeeding on her website.117

A more controversial serially enacted rider is the Hyde Amendment prohibiting the expenditure of federal funds on abortions.118 This provision, initially inserted into a continuing appropriations resolution in 1977,119 has been reintroduced and reenacted ever since, most recently as part of the Omnibus Appropriations Act of 2009.120

The persistence of the Maloney measure as a temporary provision in the appropriations bills may be due to congressional indifference, or to the Congresswoman's pursuit of a broader permanent law.121 But the long life of the Hyde Amendment as an appropriations rider is the result of a *156 political impasse between pro-life proponents and pro-choice opponents.122 There is neither enough congressional support to pass a permanent law nor enough opposition to keep the rider out of appropriation bills. The result is that it has been the law for over thirty years without being added to the Code. At least for the Hyde Amendment, impermanence is the intent of Congress, if intent can be inferred from a persistent lack of agreement.

B. Why Problems with the Code Matter

The complexities of the U.S. Code would be merely a point of interest if they were widely and well understood. There are ways of researching the session laws as well as the Code. If, however, the general expectation is that the Code and federal statutory law are synonymous, then those complexities are a trap for the unwary, and the goal of the codifiers is unmet.

The government presents the Code as a comprehensive, authoritative source for federal legislation, accessible by the general public:

One of the important steps in the enactment of a valid law is the requirement that is shall be made known to the people who are to be bound by it. There would be no justice if the state were to hold its people responsible for their conduct before it made known to them the unlawfulness of such behavior. . . .

. . . .

The United States Code contains a consolidation and codification of the general and permanent laws of the United States . . . . Its purpose is to present the laws in a concise and usable form without requiring recourse to the many volumes of the Statutes at Large containing the individual amendments.123

*157 This language comes from How Our Laws Are Made, a document written for the general public, and printed in ever-larger quantities since the first edition in 1953.124 Today, it has a prominent link on the Library of Congress's Thomas website as a basic introduction to aid the public's understanding of the legislative process.125

A less explicit, but more pervasive, message about the irrelevance of the session laws is delivered by the official online vehicles for the Code. The two federal government websites that provide free access to the Code126 do not hyperlink from a Code section to the Statutes at Large citations in the section's history line for either positive law or prima facie law titles. For digitally literate users, a hyperlink would be the expected path to any related and relevant information, whereas the lack of a hyperlink suggests irrelevance. This means that for those members of the public who look beyond Wikipedia for information on federal statutes, the U.S. Code is likely to be the only stop in their search.

The general public is unlikely to consider “recourse to the Statutes at Large” to find the law unless there is a clear indication that the session laws are important and a clearly marked path to access them. Even legal professionals are increasingly ignoring the session laws in their research. An attorney in the House Office of Legislative Counsel, citing changes in Bluebook rules and recent Supreme Court decisions, lamented that the session laws are no longer used by the legal profession: “We do not cite to them, we do not quote from them, and--the most recent development--we do not use them in statutory interpretation.”127