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The Office of the Speaker of the House should request that the Office of the Law Revision Counsel revisit the codification of Title 42 of the United States Code. The Office should insert a ‘no source’ provision into Title 42 of the United States Code establishing prima facie evidence that the title adopts a universal healthcare scheme. Without changing laws, the United States Executive and Judicial branches should enforce this policy.
It solves without changing positive law, avoids politics, AND reaffirming OLRC’s independent role boosts internal SOP which contains hyperpartisanship
Jesse M. Cross & Abbe R. Gluck 20, Cross is Assistant Professor, University of South Carolina Law School; Gluck is Professor of Law and Faculty Director, Solomon Center for Health Law and Policy, Yale Law School, “The Congressional Bureaucracy,” 168 U. Pa. L. Rev. 1541, May 2020, WestLaw
C. Office of the Law Revision Counsel
“The bulk of the revision done is done by lawyers in the executive branch.”
Tasked by its organic statute to “develop and keep current an official and positive codification of the laws of the United States,”114 OLRC functions as the custodian of the U.S. Code. Before the existence of the Code, private companies and agencies prepared some compilations of updated federal laws, *1568 but these collections were not authoritative, and they could contain errors.115 As a result, the only way to determine current law was “slogging through all of the session laws” of Congress.116 It was not enough to know that a law had been passed a century ago; one had to search all laws passed since that time to ensure no amendments had been made in the intervening years. The U.S. Code was deemed necessary because this research process became “increasingly cumbersome” as the number of laws exploded.117
By creating the U.S. Code in 1926,118 Congress joined many state legislatures that had begun to prepare and adopt topically-arranged legal codes.119 Unlike several such states, however, Congress did not create a governmental office to maintain its Code.120 Instead, Congress entrusted management and oversight of the Code to the House Committee on the Revision of Laws--and it did not provide the Committee with any significant staff to perform this task.121
Throughout the 1950s and 1960s, even as the federal statutory landscape was expanding, the work of preparing codification bills was assigned to only two individuals.122 As a result, Congress often outsourced this work to non-congressional actors. With respect to the updating and publishing of the *1569 Code, Congress often relied on services offered by the West Publishing Company.123 With respect to the preparation of codification bills, most work was done by executive-branch attorneys, because executive agencies had more staff.124
The House addressed these concerns about the lack of institutional capacity for codification as part of its review of its committee structure in 1974.125 The result was a House resolution that, among other reforms,126 created OLRC.127 The committee report echoed the same concerns for the lack of congressional self-sufficiency that drove the creation of the other nonpartisan offices, lamenting that: “To assist in the Judiciary Committee's codification and revision work the West Publishing Company has, for some 50 years, more or less donated its services to the committee.”128 The report also documented Congress's prior dependence on executive-branch codification resources, noting that: “One title was codified after a large effort by the Defense Department which put together a team of 52 lawyers ... and budgeted roughly $3 million to prepare the bill for the codification of Title 10, Armed Forces.”129 OLRC would enable Congress to perform this work for itself.
A few months later, Congress passed a bill that declared the provision creating OLRC to be “permanent law,” rather than just the creature of a House resolution.130 In so doing, Congress ensured that OLRC could not be abolished via unilateral action by the House.131
*1570 The office currently employs thirteen individuals--a significant increase over earlier numbers,132 but one dwarfed by increases in many other congressional offices. OLRC employees are all attorneys.133 They are divided into two teams, with nine working on classification and four on codification (a distinction explained below). OLRC is headed by an individual known as the Law Revision Counsel who must be appointed by the House Speaker without regard to partisan affiliation.134 The Law Revision Counsel typically is selected through internal promotions of existing employees.
For its work on the U.S. Code, OLRC now performs several tasks. First, it performs “codification” work, where it prepares codification bills for Congress.135 This work requires surveying the myriad already-enacted federal statutes and determining which statutes fall within general cohesive subject-matter areas; those subject-matter areas are reflected in the fifty-three titles of the U.S. Code. OLRC occasionally creates new titles or repurposes old ones, but most of the subject matter areas were organized by Congress itself when it adopted the Code in 1926. (The Code was less than 2000 pages long then; now it is more than 50,000.)
OLRC then takes those statutes apart from the form in which they were passed and reassembles them--moving and reorganizing sections around to integrate those statutes into a single, coherent subject-matter title in the Code.136 OLRC inserts that newly prepared title into a bill, which it presents to Congress for formal enactment of the title into what is known as “positive law.” To transform a title of the U.S. Code into positive law, Congress must pass the codification bill repealing the myriad underlying statutes and enacting the codification bill itself (and the title contained therein) as the sole governing law in their place.137 Through its codification work, OLRC therefore conceptualizes, creates, and organizes a title of the Code.138
*1571 In preparing a codification bill, OLRC may make editorial changes to clarify presumed congressional intent in the prepared title, including grammatical changes or even the insertion of substantive textual provisions such as definitions. OLRC's work to draft codification bills includes a formal review and comment period whereby the office invites feedback and analysis on the bills from those with expertise in the relevant area of law, including administrative agencies, congressional committees, and academics. Congress has enacted twenty-seven titles of the U.S. Code into positive law, with the most recent enacted in 2014.139
There are twenty-seven additional subject-matter-cohesive titles of the U.S. Code that most lawyers perceive as indistinguishable from the enacted titles (for instance, Title 42 of the U.S. Code, which contains the Civil Rights Acts, Medicare, and Medicaid). OLRC also conceptualizes and organizes those titles (most of which were originally organized by Congress in 1926) by rearranging provisions from enacted statutes (or retaining the work done by prior codifiers to that end). But those titles have not been formally enacted as codified law by Congress--that is, Congress has not voted on those OLRC edits at all--in many instances simply because Congress has not acted on requests for codification and has little interest in doing so, as we elaborate in Part II. As a result, those twenty-seven titles do not have the status of positive law (in other words, the governing law is still the originally-enacted public laws not the title of the Code).
A key practical effect of the difference between positive and non-positive titles goes to how a law is properly amended. To amend a law that is part of the enacted Code, one needs to amend to the Code itself (e.g., “Title 28, United States Code, is amended ...”). If instead, Congress accidentally amends with a public law that says “the Judiciary Act of 1789 is amended,” that amendment becomes something of a free floating piece of law because it is not “where” it belongs, as the provisions of the Judiciary Act were formally repealed when they were codified into the Code. Surprisingly, as we detail in Part IV, such mistakes in amending are not rare and they create challenges for those trying to find the most up-to-date versions of the law. To amend to one of the twenty-seven titles not enacted as positive law, Congress does have to amend to the underlying non-codified statute (e.g., “The Social Security Act is amended ...”), not to the Code, because the Code for those sections is not enacted law to amend. These distinctions have caused much confusion and numerous mistakes, as we elaborate in Part IV. The big point for now is how little most lawyers and judges understand about any of this.
*1572 For all titles, whether or not voted on by Congress, OLRC also performs “classification” work.140 Here, it prepares and publishes updated versions of the Code that incorporate recent amendments.141 This includes updating the official online version of the Code throughout the legislative year, which OLRC typically does approximately thirty to forty times per year.142 For non-positive titles, this classification work requires OLRC decisions about where to locate newly enacted provisions in the Code. This work also can entail certain edits to statutory text--such as modifying cross-references and inserting headings in non-positive titles. As non-positive titles grow unwieldy over time with repeated classifications, OLRC also periodically revisits them to rearrange them--work that it labels as “editorial reclassification.”143
As noted, OLRC has significant editorial discretion in the performance of these functions, a fact unknown to most lawyers and courts. In codification bills, it may alter or even add statutory text in order to correct errors, resolve ambiguities, and make the Code easier to understand and navigate. In all aspects of its work, it has significant discretion to omit those provisions from the Code entirely that it deems not “general and permanent,”144 such as most parts of appropriations bills. It also has discretion to move full provisions outside the text of the Code and into the side notes--a determination that surprisingly often includes some important provisions, like pilot programs, statutory effective dates, and legislative findings.145 To appreciate the *1573 significance of this discretion, as we discuss in Part IV, more than half of the enacted text of the U.S. Code is now in statutory notes--that is, not visible as inline text in print sources and not readily accessible at all on secondary electronic sources, even for those who know to look for them.146 These changes often create situations in which the statute as encountered by the general public appears different--or at least less complete--from the text that was enacted.
D. Congressional Budget Office (CBO)
“[T]he Congress has, in the eyes of many, lost the power of the purse to the Executive Branch.”
In the half-century preceding the creation of CBO, the office that now is Congress's economic and budgetary analyst, budgetary power rested heavily with the executive branch. The Budget and Accounting Act of 1921 required the President to submit an annual budget proposal, and so largely entrusted the President with responsibility for budget planning.147 The 1921 Act also established the Bureau of the Budget, later renamed the Office of Management and Budget (OMB), which gave the President significant control of data and analysis relating to the budget.148 In the following decades, economic analyses of legislative issues, such as cost estimates for bills, typically were produced by executive agencies.149 Those calculations, it often was suspected, would vary based on the President's level of support for the underlying legislation.150 This era of “presidential dominance” over the budget process continued unabated throughout the 1960s.151
Congress became increasingly concerned about this allocation of budgetary power in the 1960s. The Vietnam War and the Great Society *1574 policies placed new strain on the federal budget, and Congress grew dissatisfied with executive-branch budgetary tactics that it viewed as coercive.152 These inter-branch tensions reached a boiling point when, in 1972, President Nixon threatened to withhold significant appropriations from certain federal programs that conflicted with his policies.153 These impoundments, along with a post-Watergate concern among some about the trustworthiness of OMB,154 led to new congressional interest in reclaiming its budgetary and economic powers.
In response, Congress formed a joint committee in 1972 that was directed to develop recommendations “for the purpose of improving congressional control of budgetary [procedures].”155 Drawing on the template of California's Joint Legislative Budget Committee, it recommended the creation of a nonpartisan joint staff and director to work beneath two new budget committees, one for each chamber.156 This approach, the committee hoped, might finally “give Congress its own center of congressional budgetary operations.”157
A year later, Congress enacted the Congressional Budget and Impoundment Control Act of 1974, which acted upon the joint committee's recommendations.158 The conference committee's explanatory statement observed: “[T]he Congress has, in the eyes of many, lost the power of the purse to the Executive Branch.”159 It further stated: “[C]ongressional enactments [have] permitted the Executive to achieve a great concentration of financial and policymaking authority .... Yet the Congress did little to improve its own budget capabilities.”160
To reclaim control, the Act established a series of new procedures and practices--including presidential procedures for impoundments161 and procedures for the new congressionally driven budget process.162 To manage the latter process, it also created several new congressional institutions. These included the new budget committee in each chamber--a division of labor partly designed to allow for specialized attention to aggregate federal *1575 spending163 and partly the byproduct of bicameralism traditions in Congress164--a structure that separated budget power across the two chambers. It was also partly an effort to navigate and appease existing committee-level conflicts inside Congress.165 Rather than leave issues of budgetary expertise and calculation to these new committees, however, the Act also created the CBO.166
The Act made the CBO a nonpartisan legislative office, not committee staff as had been proposed.167 Representative Frank Annunzio said that the CBO would “aid in redressing the imbalance of information which the executive branch commonly uses to its advantage and our embarrassment.”168 Senator Edmund Muskie similarly commented that the office would “provide Congress with the kind of information and analyses it needs to work on an equal footing with the executive branch.”169
In subsequent years, CBO accreted authority, largely by proactively looking to analyze major legislative proposals and taking a firmly nonpartisan stance. President Carter's energy policy was the important first milestone. As CBO historian Philip Joyce put it, CBO proactively involved itself by “proposing to do an analysis of the plan, and by generating requests for this analysis from the committees of jurisdiction.”170 Ultimately, CBO determined that the Carter estimates of the policy's intended effects were *1576 overly generous.171 Despite the controversy generated by this conclusion, CBO's critique of President Carter's plan helped establish the office's independence, especially because the entire federal government, including CBO, was headed by Democrats.172 CBO continued to display this independence from majority leadership with controversial forecasts relating to President Reagan's budget policy173--particularly in projecting a deficit when Reagan promised his budget would balance174--as well as unfavorable forecasts that contributed to the failure of President Clinton's proposed health reform legislation in 1994.175
The creation of the office angered some members by drawing power away from the very influential committees with control over the budget, including House Ways & Means and Senate Finance. CBO similarly has maintained independence from the budget committees of Congress. One of the most important early CBO directors, Dr. Alice Rivlin, openly embraced this internal separation of powers function for the office, famously stating: “[T]he CBO was not set up to work solely for the budget committees. I work for the whole Congress and have responsibilities to all committees and indeed to all members.”176
Today, CBO has approximately 250 employees, which it reports are “mostly economists or public policy analysts with advanced degrees,” and a few attorneys.177 The office is headed by a Director who is jointly appointed by the House Speaker and Senate President pro tempore (with recommendations from the Budget Committees) and who legally must be appointed without regard to political affiliation.178 In practice, the House and *1577 Senate Budget Committees have alternated in recommending candidates for the position, and the Committees' recommendations have been followed.179
The office provides analyses, reports, and studies designed to inform Congress about the fiscal impacts of policies, legislative proposals, and enacted law.180 Its analyses include: (1) a cost estimate for nearly every bill that is approved by a committee;181 (2) ten-year and thirty-year forecasts of the budgetary and economic outcomes anticipated to result under continuation of current law; (3) economic analysis of the President's budget; (4) examination of the options to reduce the federal deficit; and (5) analysis of the economic impacts of federal mandates upon state, local, and tribal governments and the private sector, as required by the Unfunded Mandates Reform Act of 1995.182 CBO often proactively assists legislative staff in designing legislation that will not exceed desired expenditure levels.183 The office performs these functions particularly with respect to spending legislation (i.e., non-tax legislation), due to the complementary role played by JCT for tax bills.184
Congress also has hardwired use of the office's cost estimates into the routine legislative process, with rules and laws requiring committee-reported legislation to be cost-estimated (and for committee reports to publish those estimates).185 In most instances, Congress also has required that legislation meet certain budgetary goals--and while most of these rules provide the Budget Committees with the option to determine their own cost estimates, use of CBO estimates occasionally is mandated, and even when they are not, congressional convention dictates the use of CBO estimates regardless of *1578 such specification.186 As a result, the “CBO score”--the estimated cost of a bill--often plays a pivotal role in a bill's success or failure.187
CBO publishes its formal cost estimates and analytic reports,188 materials outlining its underlying data and analytical methods,189 comparisons of its projections with a variety of sources,190 and chart books, slide decks, and infographics about the budget and the economy to make its projections more accessible.191 Any preliminary analyses CBO conducts at the behest of members or committees to assist in the development of legislation are confidential.192
E. Joint Committee on Taxation (JCT)
“Congress ought not to be dependent absolutely on what may be reported to it by the officials and people engaged in the administration side alone.”
Created in 1926, the JCT emerged in part from the enactment of the Sixteenth Amendment which, by providing legislative authority to impose an income tax, created a growing need for expertise in taxation. More concretely, however, it also emerge

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