Positive law codification will modernize U.S. Code

To understand positive law codification, it helps to know something about the U.S. Code. The Code was adopted in 1926 for the purpose of arranging the general and permanent federal statutes by subject matter. The Code divides the laws into 50 broad subject areas, which are designated titles. These titles include subjects such as title 11, Bankruptcy, and title 18, Crimes and Criminal Procedure.

As originally adopted, all of the titles of the Code were editorially arranged compilations of various statutes. Since then, 24 of the 50 titles have been systematically revised and enacted as statutes themselves. These enacted titles are referred to as positive law titles. Since positive law titles are statutes, only Congress can amend them or add to them. For other new laws, it is the job of the Office of the Law Revision Counsel in the House of Representatives to decide where they should go in the Code.

The U.S. Code is a very useful tool for finding and proving federal law, but it has its problems. One of the biggest problems is that the title structure of the Code has not kept up with modern times. The original 1926 Code fit into a single volume and reflected the focus and size of the laws then in effect. Back then there wasn’t much in the way of social security, space exploration, energy assistance, or environmental protection law.

Today, the Code has over 47,000 pages and much of the new law since 1926 has been shoehorned into the original 50 titles where it really doesn’t fit. The worst examples of this are in title 42, The Public Health and Welfare, which, in addition to laws on public health, contains laws on the space program, law enforcement, social security, energy, civil rights, and dozens of other unrelated subjects.

Another big problem is that Congress often pays little or no attention to the existing laws when enacting new legislation. This makes it difficult, if not impossible, for the Code editors to keep statutes that relate to similar subjects together. As a result, there are chapters and sections relating to the same topic that are thousands of pages apart in the Code. Finally, the unavoidable result of 85 years of legislation has been the accumulation in the Code of obsolete and redundant provisions, archaic and inconsistent language, and statutory errors.

Solving these problems is what positive law codification is all about. The two bills H.R. 1107 and H.R. 3237 each take a problem area of law in the Code, reorganize it, and reenact it as a new positive law title. H.R. 1107 would revise and reenact the laws relating to public contracts as title 41, and H.R. 3237 would revise and reenact the laws relating to national and commercial space as title 51. These bills do not make substantive changes, i.e. changes in the meaning of the law, but they do make major improvements in the organization, clarity, and accessibility of the law.

The bills were prepared by codification attorneys in the Office of the Law Revision Counsel. The Office is an independent nonpartisan office in the House of Representatives which has the statutory mandate “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.”

As with all codification bills prepared by the Office of the Law Revision Counsel, H.R. 1107 and H.R. 3237 are completely non-partisan and essentially non-controversial. Both bills were introduced by the Democratic Chairman of the House Committee on the Judiciary and cosponsored by the Republican Ranking Member. Both bills have gone through extensive reviews by government agencies, congressional committees, and interested members of the public, and any concerns expressed have been resolved. Both bills were passed unanimously by the House of Representatives.

It has taken years for these bills to get to where they are today in the legislative process. It is now up to the Senate to decide whether or not this useful legislation is enacted. If it is, it will benefit lawyers, judges, government agencies, the Congress, and the public for years to come.

Peter LeFevre is the current Law Revision Counsel.