Understanding Federal Legislation: A Section-by-Section Guide to Key Legal Considerations

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Understanding Federal Legislation: A Section-
~~August 18, 2020~~September 27, 2021
by-Section Guide to Key Legal Considerations
Victoria L. Killion
Federal bills are increasingly complex, making them difficult to understand for the average Federal bills are increasingly complex, making them difficult to understand for the average
Legislative Attorney Legislative Attorney
reader and the seasoned practitioner alike. What a congressional drafter understands reader and the seasoned practitioner alike. What a congressional drafter understands ~~t o~~to be the be the

import of a given provision could later be discussed and interpreted in committee or on the floor import of a given provision could later be discussed and interpreted in committee or on the floor
of the House or the Senate. If the bill is enacted, federal agencies may then consider its meaning, of the House or the Senate. If the bill is enacted, federal agencies may then consider its meaning,

either behind the scenes when evaluating their own compliance with the law or through guidance, either behind the scenes when evaluating their own compliance with the law or through guidance,
rules, or agency orders governing third parties. If a litigant challenges an agency’s interpretation of the law, a court may need rules, or agency orders governing third parties. If a litigant challenges an agency’s interpretation of the law, a court may need
to resolve the law’s meaning. Although the court’s ultimate goal is to effectuate Congress’sto resolve the law’s meaning. Although the court’s ultimate goal is to effectuate Congress’s intent, judges may draw on intent, judges may draw on
different philosophies or different philosophies or use different tools to arrive at their conclusions about what the law means. tools to arrive at their conclusions about what the law means.
A basic awareness of the rules and presumptions that apply when construing different components of a bill can help Members A basic awareness of the rules and presumptions that apply when construing different components of a bill can help Members
and congressional staff identify potential issues with the help of legislative counsel when formulating legislation or avoid and congressional staff identify potential issues with the help of legislative counsel when formulating legislation or avoid
interpretive pitfalls when reviewing bills proposed by other offices. For example: interpretive pitfalls when reviewing bills proposed by other offices. For example:
 Titles, headings, and general statements of purpose can help to elucidate the meaning of substantive  Titles, headings, and general statements of purpose can help to elucidate the meaning of substantive
provisions in the bill, but they generally will not override the plain language of those provisions. provisions in the bill, but they generally will not override the plain language of those provisions.
 Formal legislative findings can show whether Congress may legislate in areas typically reserved for the  Formal legislative findings can show whether Congress may legislate in areas typically reserved for the
states or has identified harms sufficient to regulate speech or other constitutionally protected activities. states or has identified harms sufficient to regulate speech or other constitutionally protected activities.
 Defined terms in a bill set the meaning of those terms wherever those definitions apply, even if those terms  Defined terms in a bill set the meaning of those terms wherever those definitions apply, even if those terms
would normally have a different meaning in everyday usage. would normally have a different meaning in everyday usage.
 Language that ostensibly creates rights may not help the intended beneficiaries without an explicit remedy,  Language that ostensibly creates rights may not help the intended beneficiaries without an explicit remedy,
just as prohibiting conduct may not just as prohibiting conduct may not ~~amount to much~~curtail it without an enforcement mechanism. without an enforcement mechanism.
 If a bill potentially conflicts with an existing law, a reader may look to see if the bill would repeal the  If a bill potentially conflicts with an existing law, a reader may look to see if the bill would repeal the
existing law or otherwise address the potential conflict through an exception or a “notwithstanding” existing law or otherwise address the potential conflict through an exception or a “notwithstanding” ~~clau se~~clause. .
In the absence of such language, courts are instructed to try to harmonize the conflicting provisions instead In the absence of such language, courts are instructed to try to harmonize the conflicting provisions instead
of assuming that Congress implicitly repealed the old law.of assuming that Congress implicitly repealed the old law.
 A preemption clause or non-preemption clause may indicate whether the bill displaces state laws on the  A preemption clause or non-preemption clause may indicate whether the bill displaces state laws on the
same subject. Without one, if the bill later becomes law, a court may have to decide whether Congress same subject. Without one, if the bill later becomes law, a court may have to decide whether Congress
implicitly preempted state law, presuming that it did not but asking, among other questions, whether it is implicitly preempted state law, presuming that it did not but asking, among other questions, whether it is
impossible to comply with both laws.impossible to comply with both laws.
 A severability clause may persuade a court not to strike down an entire law after concluding that a  A severability clause may persuade a court not to strike down an entire law after concluding that a
particular provision in the legislation was unconstitutional. particular provision in the legislation was unconstitutional.
 Timing rules addressing when a provision takes effect or how long it remains in force override the usual  Timing rules addressing when a provision takes effect or how long it remains in force override the usual
default rules that the provision takes effect upon enactment and remains in force until repealed or amended. default rules that the provision takes effect upon enactment and remains in force until repealed or amended.
Beyond these considerations about the parts of a bill, it is useful to know how courts have interpreted common legislative Beyond these considerations about the parts of a bill, it is useful to know how courts have interpreted common legislative
language. For example: language. For example:
 The word “shall” generally introduces a requirement. While “may” can leave room for discretion, “may  The word “shall” generally introduces a requirement. While “may” can leave room for discretion, “may
not” signals a prohibition. not” signals a prohibition.
 Words like “this Act” or “this section” can refer to different language, depending on whether they are used  Words like “this Act” or “this section” can refer to different language, depending on whether they are used
“inside the quotes” in language amending an existing law, or “outside the quotes” as part of the stand-alone “inside the quotes” in language amending an existing law, or “outside the quotes” as part of the stand-alone
bill text. bill text.
  ~~And the~~The phrase “notwithstanding any other provision of law” is susceptible to different interpretations phrase “notwithstanding any other provision of law” is susceptible to different interpretations
depending on the context. depending on the context.
The Supreme Court has advised lower courts to presume that “Congress says what it means and means what it says.” Thus, The Supreme Court has advised lower courts to presume that “Congress says what it means and means what it says.” Thus,
unless a provision contains an obvious technical error, a court may give effect to clear, though seemingly unintended, unless a provision contains an obvious technical error, a court may give effect to clear, though seemingly unintended,
language rather than assume that the provision contains a drafting error. language rather than assume that the provision contains a drafting error.
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drafting manual for the U.S. House of Representatives cautions that legislation drafting manual for the U.S. House of Representatives cautions that legislation “should “should
be written in English for real people.”1 The authors encourage drafters to use be written in English for real people.”1 The authors encourage drafters to use
A organizational elements like headings and numbered lists “with enthusiasm whenever A organizational elements like headings and numbered lists “with enthusiasm whenever
they they ~~wil~~ will increase readability and understandability.”2 Even when these lessons are heeded, the increase readability and understandability.”2 Even when these lessons are heeded, the
length and complexity of federal legislationlength and complexity of federal legislation can make it difficult for the average reader to can make it difficult for the average reader to
understand what changes a given understand what changes a given ~~bil~~ bill would make to the law.3 Often the picture is further would make to the law.3 Often the picture is further
obscured when the obscured when the ~~bil~~ bill is viewed against the vast backdrop of legal principles on how to interpret is viewed against the vast backdrop of legal principles on how to interpret
~~legislative~~ legislative language.4language.4
This report serves as a general guide for understanding federal legislation, with a focus on the This report serves as a general guide for understanding federal legislation, with a focus on the
legal significance of each component of a legal significance of each component of a ~~bil~~ bill and modern judicial approaches to interpreting and modern judicial approaches to interpreting
common statutory language.5 Although the report, and in particular its emphasis on legal issues, is common statutory language.5 Although the report, and in particular its emphasis on legal issues, is
geared toward Members of Congress and congressional staff who routinely review proposed geared toward Members of Congress and congressional staff who routinely review proposed
legislation, the report may also serve as a useful introduction to the structure and terminology of legislation, the report may also serve as a useful introduction to the structure and terminology of
federal federal ~~bil s~~bills for those who may not have extensive experience in this area.6 In addition, although for those who may not have extensive experience in this area.6 In addition, although
the report is by no means intended as a comprehensive source for congressional drafters,7 it may the report is by no means intended as a comprehensive source for congressional drafters,7 it may
help those overseeing or assisting in the drafting process to identify and avoid language that may help those overseeing or assisting in the drafting process to identify and avoid language that may
lead to interpretive confusion or even legal lead to interpretive confusion or even legal ~~chal enges if a bil~~ challenges if a bill is enacted. is enacted.
This report begins by summarizing how new legislation affects existing law, the general This report begins by summarizing how new legislation affects existing law, the general
approaches to amending federal law, and how the organization of federal laws bears on the format approaches to amending federal law, and how the organization of federal laws bears on the format
of legislation. The report then sets out the major components of federal of legislation. The report then sets out the major components of federal ~~bil s~~bills, such as findings and , such as findings and
definitions sections, and discusses the legal significance of each component. Next, the report definitions sections, and discusses the legal significance of each component. Next, the report
discusses how courts have interpreted certain terms and phrases commonly used in federal discusses how courts have interpreted certain terms and phrases commonly used in federal
legislation. The report concludes with general takeaways and suggestions for reading a legislation. The report concludes with general takeaways and suggestions for reading a ~~bil~~ bill. .
While this report sets forth general rules and presumptions for interpreting federal laws that the While this report sets forth general rules and presumptions for interpreting federal laws that the
Supreme Court has recognized, statutory interpretation depends heavily on the precise wording of Supreme Court has recognized, statutory interpretation depends heavily on the precise wording of

1 1 See OFF. OF LEGIS. COUNSEL, U.S. HOUSE OF REPRESENTATIVES, HOUSE LEGISLATIVE COUNSEL’S MANUAL ON OFF. OF LEGIS. COUNSEL, U.S. HOUSE OF REPRESENTATIVES, HOUSE LEGISLATIVE COUNSEL’S MANUAL ON
DRAFTING STYLE: NOVEMBER 1995, at 5, https://legcounsel.house.gov/sites/legcounsel.house.gov/files/documents/DRAFTING STYLE: NOVEMBER 1995, at 5, https://legcounsel.house.gov/sites/legcounsel.house.gov/files/documents/
draftstyle.pdf [hereinafter HOLC MANUAL ON DRAFTING STYLE]. draftstyle.pdf [hereinafter HOLC MANUAL ON DRAFTING STYLE].
2 2 Id.
3 3 See Outrageous Bills: Why Congress Writes Such Long Laws, THE ECONOMIST (Nov. 23, 2013), , THE ECONOMIST (Nov. 23, 2013),
https://www.economist.com/united-states/2013/11/23/outrageous-bills (“https://www.economist.com/united-states/2013/11/23/outrageous-bills (“ In 1948 the average length of bills that made it In 1948 the average length of bills that made it
through Congress wasthrough Congress was two andtwo and a half pages. Nowa half pages. Now it is 20. it is 20. ~~T hat~~That may not sound too much, but the mean is brought down may not sound too much, but the mean is brought down
by short, uncontroversial lawsby short, uncontroversial laws . . . . . . . . ~~T he~~The most consequential laws, most consequential laws, by contrast, go on for thousands of pages.”).by contrast, go on for thousands of pages.”).
4 4 See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS xxvii (2012) (“In ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS xxvii (2012) (“In
legallegal systems, there are linguistic usagessystems, there are linguistic usages and conventions distinctive to private legal documents in various fields and to and conventions distinctive to private legal documents in various fields and to
governmental legislation. And there are jurisprudentialgovernmental legislation. And there are jurisprudential conventions that make legal interpretation more than just a conventions that make legal interpretation more than just a
linguisticlinguistic exercise . . . .”).exercise . . . .”).
~~5 T his~~ 5 This report cites Supreme Court decisions report cites Supreme Court decisions wherever possiblewherever possible ~~because~~ because their holdings are bindingtheir holdings are binding on loweron lower courts. courts.
Some legalSome legal scholars have observed that statutory interpretation methods vary at different levels of the federal judiciary, scholars have observed that statutory interpretation methods vary at different levels of the federal judiciary,
among courts, and among judges.among courts, and among judges. See infra “ ~~T he~~The Role of Statutory Interpretation.”
.” 6 For an introduction to the legislative process, see CRS6 For an introduction to the legislative process, see CRS Report R42843, Report R42843, Introduction to the Legislative Process in the
U.S. Congress, by Valerie, by Valerie Heitshusen. Heitshusen.
7 References to “ 7 References to “ congressional drafters” in this report primarily refer to the legislative branch employees who draft or congressional drafters” in this report primarily refer to the legislative branch employees who draft or
assist in drafting legislation, includingassist in drafting legislation, including ~~individual Members~~ individual Members of Congress, legislative staff, and attorneys within the of Congress, legislative staff, and attorneys within the
HouseHouse and Senate Offices of the Legislative Counsel. Entities outside of Congress,and Senate Offices of the Legislative Counsel. Entities outside of Congress, such as representatives of the such as representatives of the
executive branch or interest groups, may also supply legislative languageexecutive branch or interest groups, may also supply legislative language throughout the life cycle of a bill.throughout the life cycle of a bill. See ABNER ABNER
J. MIKVA ET AL., LEGISLATIVE PROCESS 74 (4th ed. 2015). J. MIKVA ET AL., LEGISLATIVE PROCESS 74 (4th ed. 2015).
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the the ~~bil~~ bill at issue, the subject matter involved, and agency and judicialat issue, the subject matter involved, and agency and judicial interpretations in the interpretations in the
relevant area.8 relevant area.8

Report Terminology on Types of Federal Legislation
This report focuses on federal legislation9 This report focuses on federal legislation9 in the form of in the form of bills, which, to become law, must be passed by both , which, to become law, must be passed by both
houses of Congress and presented to the President for consideration.10 For simplicity,houses of Congress and presented to the President for consideration.10 For simplicity, the termsthe terms ““bill” and ” and
““legislation” are used interchangeably. Bil s” are used interchangeably. Bil s ~~become~~ become law upon law upon enactment,, that is, (1) when the President signs the that is, (1) when the President signs the
bil into law; (2) when the President has not signed the bil within ten days of presentment and Congress is in bil into law; (2) when the President has not signed the bil within ten days of presentment and Congress is in
session; or (3) when Congress overridessession; or (3) when Congress overrides a presidential veto.11 a presidential veto.11
The report also referencesThe report also references ~~elements~~ elements characteristic ofcharacteristic of joint resolutions—the other vehicle—the other vehicle that Congress may that Congress may
use to pass laws—whereuse to pass laws—where applicable. Like bil s,applicable. Like bil s, joint resolutionsjoint resolutions ~~require~~ require passage by both houses and presentment passage by both houses and presentment
to the President.12 Simpleto the President.12 Simple and concurrent resolutions,and concurrent resolutions, which do not require the President’swhich do not require the President’s signature and do not signature and do not
have the force of law, are beyond the scope of this report.13 have the force of law, are beyond the scope of this report.13
Judicial decisionsJudicial decisions involving questions of statutory interpretation involving questions of statutory interpretation ~~typical y~~typically concern enacted legislation concern enacted legislation rather than rather than
pending legislation.14pending legislation.14 Accordingly, the report Accordingly, the report ~~general y refers~~ generally refers to to laws rather than bil s when discussing matters of rather than bil s when discussing matters of
statutory interpretation, and to that end uses the termsstatutory interpretation, and to that end uses the terms ““public law,”15 “,”15 “act,” and “,” and “statute”” interchangeably interchangeably
unless otherwiseunless otherwise noted. noted.
A Bill in Context
A key step in understanding the potential effects of a given A key step in understanding the potential effects of a given ~~bil~~ bill is to place the is to place the ~~bil~~ bill in the larger in the larger
context of the existing law. This part of the report discusses how new legislation affects existing context of the existing law. This part of the report discusses how new legislation affects existing
law as a general matter, including when conflicts arise between two provisions. It then briefly law as a general matter, including when conflicts arise between two provisions. It then briefly
addresses the differences between a freestanding and an amendatory addresses the differences between a freestanding and an amendatory ~~bil~~ bill and why drafters might and why drafters might
amend an act of Congress rather than a section of the amend an act of Congress rather than a section of the United States Code. The discussion in this . The discussion in this

8 8 See infra “~~T he~~The Role of Statutory Interpretation.”
~~9 T his~~.” 9 This report is not intended to provide guidance report is not intended to provide guidance in reviewingin reviewing legislation at the state or local levels, where drafting rules legislation at the state or local levels, where drafting rules
and practices may vary dependingand practices may vary depending on the jurisdiction. on the jurisdiction. See, e.g., MD. DEP, MD. DEP ’T OF LEGISLATIVE SERVS., LEGISLATIVE ’T OF LEGISLATIVE SERVS., LEGISLATIVE
DRAFTING MANUAL (2019), http://dls.maryland.gov/pubs/prod/LegisBillDrafting/Drafting-Manual.pdf; LEGISLATIVE DRAFTING MANUAL (2019), http://dls.maryland.gov/pubs/prod/LegisBillDrafting/Drafting-Manual.pdf; LEGISLATIVE
COUNCIL, NORTH DAKOTA LEGISLATIVE DRAFTING MANUAL (2019), https://www.legis.nd.gov/files/documents/COUNCIL, NORTH DAKOTA LEGISLATIVE DRAFTING MANUAL (2019), https://www.legis.nd.gov/files/documents/
legislativedraftingmanual.pdf.legislativedraftingmanual.pdf.
10 10 See generally CRS CRS Infographic IG10005, Infographic IG10005, From Bill to Law: Stages of the Legislative Process,, by Valerieby Valerie Heitshusen Heitshusen
and Jennifer E. Manning.and Jennifer E. Manning.
11 U.S. CONST. art. I, § 7, cl. 2; 11 U.S. CONST. art. I, § 7, cl. 2; see also ROBERT B. DOVE, PARLIAMENTARIAN, U.S. SENATE, ENACTMENT OF A LAW ROBERT B. DOVE, PARLIAMENTARIAN, U.S. SENATE, ENACTMENT OF A LAW
(1997), https://www.congress.gov/resources/display/content/Enactment+of+a+Law+-(1997), https://www.congress.gov/resources/display/content/Enactment+of+a+Law+-
+Learn+About+the+Legislative+Process. +Learn+About+the+Legislative+Process.
12 A different process exists for joint resolutions proposing a constitutional amendment. See generally CRS 12 A different process exists for joint resolutions proposing a constitutional amendment. See generally CRS Report Report ~~98-~~
~~728~~R46603, , Bills, Resolutions, ~~Nom inations~~Nominations, and Treaties: Characteristics~~, Requirem ents, and Uses~~~~, by Richard S. Beth~~ and Examples of Use, by Jane A. Hudiburg. .
13 13 See Types of Legislation, UNITED STATES SENATE, https://www.senate.gov/legislative/common/briefing/, UNITED STATES SENATE, https://www.senate.gov/legislative/common/briefing/
leg_laws_acts.htm#3 (last visited Julyleg_laws_acts.htm#3 (last visited July 26, 2020) (explaining how bills26, 2020) (explaining how bills and the three forms of resolutions differ). and the three forms of resolutions differ).
14 Pre-enactment challenges typically are not ripe for judicial consideration. 14 Pre-enactment challenges typically are not ripe for judicial consideration. See, e.g., Brubaker Amusement Co. v. , Brubaker Amusement Co. v.
United States, 304 F.3d 1349, 1358 (Fed. Cir. 2002) (reasoning that “facial challenges to statutes or United States, 304 F.3d 1349, 1358 (Fed. Cir. 2002) (reasoning that “facial challenges to statutes or ~~regulatio ns~~regulations are ripe are ripe
as of the enactment of the rule”); Boehner v. Anderson, 30 F.3d 156, 163 (D.C. Cir. 1994) (holding that a challenge to a as of the enactment of the rule”); Boehner v. Anderson, 30 F.3d 156, 163 (D.C. Cir. 1994) (holding that a challenge to a
prospective congressional pay adjustment wasprospective congressional pay adjustment was “far from ripe” because, among other contingencies, Congress had not “far from ripe” because, among other contingencies, Congress had not
yet passed a lawyet passed a law approving the pay adjustment, as requiredapproving the pay adjustment, as required by statute). by statute).
15 “Most laws passed 15 “Most laws passed by Congressby Congress are publicare public laws,”laws,” ~~laws~~ laws that “affect society as a whole,” rather than “an individual, that “affect society as a whole,” rather than “an individual,
family, or small group.” U.S.family, or small group.” U.S. Gov’t PublishingGov’t Publishing Office, Office, About Public and Private Laws, GOVINFO, , GOVINFO,
https://www.govinfo.gov/help/plaw (last visited Julyhttps://www.govinfo.gov/help/plaw (last visited July 26, 2020). 26, 2020).
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part refers primarily to legislation part refers primarily to legislation outside of appropriations outside of appropriations ~~bil s~~bills, which are not presumed to make , which are not presumed to make
permanent, substantive changes to existing law.16permanent, substantive changes to existing law.16
How a New Act Affects Existing Law
A A ~~bil~~ bill has no legal effect on existing law until it is enacted—that is, until it passes both houses of has no legal effect on existing law until it is enacted—that is, until it passes both houses of
Congress and is signed by the President (or the President does not act on the Congress and is signed by the President (or the President does not act on the ~~bil~~ bill within ten days within ten days
of presentment when Congress is in session, or Congress overrides a presidential veto).17 Once of presentment when Congress is in session, or Congress overrides a presidential veto).17 Once
enacted, the enacted, the ~~bil~~ bill becomes an act of Congress, and its content, the law.18 That law takes effect becomes an act of Congress, and its content, the law.18 That law takes effect
either upon enactment or at a later time as specified by Congress.19 either upon enactment or at a later time as specified by Congress.19 ~~And, unless~~Unless the act itself the act itself
specifies otherwise,20 the act remains in force until Congress specifies otherwise,20 the act remains in force until Congress amends (i.e., changes) or (i.e., changes) or repeals
(i.e., revokes) it.21(i.e., revokes) it.21
Legal disputes can arise if a new federal law conflicts with, or regulates the same subject matter Legal disputes can arise if a new federal law conflicts with, or regulates the same subject matter
as, an existing federal law but does not expressly repeal that existing law.22 Whether one law as, an existing federal law but does not expressly repeal that existing law.22 Whether one law
takes precedence over the other law, and which one, depends on several factors, including takes precedence over the other law, and which one, depends on several factors, including
whether Congress addressed the conflict in the statutory text, whether the laws are “capable of co-whether Congress addressed the conflict in the statutory text, whether the laws are “capable of co-
existence,” and the statutes’ order of enactment.23 Courts existence,” and the statutes’ order of enactment.23 Courts ~~general y wil~~ generally will heed Congress’s heed Congress’s
instructions on how to resolve conflicting provisions,24 which may come in the form of an instructions on how to resolve conflicting provisions,24 which may come in the form of an
exception or a notwithstanding clause.25 If, however, the new act is silent on the interplay exception or a notwithstanding clause.25 If, however, the new act is silent on the interplay

16 See ~~T enn~~ 16 See Tenn. Valley Auth. v. Hill, 437 U.S.. Valley Auth. v. Hill, 437 U.S. 153, 190–91 (1978) (“We recognize that both substantive enactments and 153, 190–91 (1978) (“We recognize that both substantive enactments and
appropriations measures are ‘Acts of Congress,’appropriations measures are ‘Acts of Congress,’ but the latter have the limited and specific purpose of providing funds but the latter have the limited and specific purpose of providing funds
for authorized programs.”). for authorized programs.”). But cf. United States v. Will, 449 U.S.United States v. Will, 449 U.S. 200, 222 (1980) (“Indeed, the rules of both Houses 200, 222 (1980) (“Indeed, the rules of both Houses
limit the ability to change substantive lawlimit the ability to change substantive law through appropriations measures. Nevertheless, when Congressthrough appropriations measures. Nevertheless, when Congress ~~desires~~ desires to to
suspendsuspend or repeal a or repeal a ~~stat ute~~statute in force, ‘[there] can be no doubt in force, ‘[there] can be no doubt that . . . it couldthat . . . it could accomplish its purpose by an amendment accomplish its purpose by an amendment
to an appropriation bill, or otherwise.’ ‘to an appropriation bill, or otherwise.’ ‘~~T he~~The whole question depends on the intention of Congress as whole question depends on the intention of Congress as ~~exp ressed~~expressed in the in the
statutes.’ (internal citations omitted)).statutes.’ (internal citations omitted)).
For more information on interpreting appropriations bills, see CRS Report R46899, Regular Appropriations Acts: Selected Statutory Interpretation Issues, by Sean M. Stiff. 17 U.S. CONST. art. I, § 7, cl. 2. 17 U.S. CONST. art. I, § 7, cl. 2.
18 Although a bill18 Although a bill is is styled as “An Act” once it passes as “An Act” once it passes one house of Congress, it doesone house of Congress, it does not become lawnot become law until it isuntil it is enacted. enacted.
See H. Off. of Legis. Counsel,H. Off. of Legis. Counsel, Drafting Legislation, HOLC, https://legcounsel.house.gov/holc-guide-legislative-, HOLC, https://legcounsel.house.gov/holc-guide-legislative-
drafting (last visited Julydrafting (last visited July 27, 2020) [hereinafter 27, 2020) [hereinafter HOLC Guide to Legislative Drafting] (“] (“ When a bill passesWhen a bill passes one house one house
of Congress,of Congress, its designation changes from “its designation changes from “ A Bill” to “A Bill” to “ An Act”, even though it has not yet become law.”). An Act”, even though it has not yet become law.”).
19 19 See infra “Effective Dates.”.”
20 20 See infra “Sunset Provisions””
21 21 See generally Amendment, BLACK’S LAW DICTIONARY (11th ed. 2019); , BLACK’S LAW DICTIONARY (11th ed. 2019); Repeal, BLACK’S LAW DICTIONARY (11th ed. , BLACK’S LAW DICTIONARY (11th ed.
2019). Appropriations bills are the exception. Their provisions are presumptively in force only for the fiscal years to 2019). Appropriations bills are the exception. Their provisions are presumptively in force only for the fiscal years to
which they apply. which they apply. See Bldg.Bldg. & Constr. & Constr. ~~T rades~~Trades Dep’t v. Martin, 961 F.2d 269, 273 Dep’t v. Martin, 961 F.2d 269, 273 –74 (D.C. Cir. 1992) (“–74 (D.C. Cir. 1992) (“ While While
appropriation acts are ‘Acts of Congress’ which can substantively change existing law,appropriation acts are ‘Acts of Congress’ which can substantively change existing law, there is a very strong there is a very strong
presumption that they do not, and that when they do, the change is only intended for one fiscal year.” (citing presumption that they do not, and that when they do, the change is only intended for one fiscal year.” (citing Tenn.
Valley Auth., 437 U.S. at 190; Minis v. United , 437 U.S. at 190; Minis v. United ~~Stat es~~States, 40 U.S.(15 Pet.) 423 (1841); Nat, 40 U.S.(15 Pet.) 423 (1841); Nat ~~’l T reasury~~’l Treasury Emps. Union v. Emps. Union v.
Devine, 733 F.2d 114, 120 (D.C. Cir. 1984); GAO, PRINCIPLES OF FEDERAL APPROPRIATIONS LAW 2-34 (1982))); Devine, 733 F.2d 114, 120 (D.C. Cir. 1984); GAO, PRINCIPLES OF FEDERAL APPROPRIATIONS LAW 2-34 (1982))); id. at at
274 (“In fact, a federal appropriations act applies only for the fiscal year in which it is passed,274 (“In fact, a federal appropriations act applies only for the fiscal year in which it is passed, ~~unless~~ unless it expressly it expressly
provides otherwise.” (citing 31 U.S.C.provides otherwise.” (citing 31 U.S.C. § § 1301(c)(2) (1991)). 1301(c)(2) (1991)).
22 22 See generally Repeal, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “express repeal,” in relevant part, as , BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “express repeal,” in relevant part, as
“[r]epeal by specific declaration in a new statute”). “[r]epeal by specific declaration in a new statute”).
23 Ruckelshaus23 Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018 (1984) (internal quotation marks omitted) (quoting Reg’l Rail v. Monsanto Co., 467 U.S. 986, 1018 (1984) (internal quotation marks omitted) (quoting Reg’l Rail
Reorganization Act Cases, 419 U.S.Reorganization Act Cases, 419 U.S. 102, 133–34 (1974)). 102, 133–34 (1974)).
24 24 See Epic Sys.Epic Sys. Corp. v. Lewis,Corp. v. Lewis, 138 S.138 S. Ct. 1612, 1624 (2018)Ct. 1612, 1624 (2018) (observing the presumption that “‘Congress will (observing the presumption that “‘Congress will
specifically address’specifically address’ preexisting lawpreexisting law when it wisheswhen it wishes to suspendto suspend its normal operations in a later statute.its normal operations in a later statute. ” (quoting United ” (quoting United
States v. Fausto, 484 U.S. 439, 452, 453 (1988))). States v. Fausto, 484 U.S. 439, 452, 453 (1988))).
25 25 See, e.g., 28 U.S.C., 28 U.S.C. § § 1334(b) (“1334(b) (“ Except as provided in subsection (e)(2), and , and notwithstanding any Act of Congress
~~that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have~~
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between the two laws, a court between the two laws, a court ~~wil~~ will not assume that Congress intended to repeal the old law—in not assume that Congress intended to repeal the old law—in
the Supreme Court’s words, “repeals by implication are disfavored.”26 Instead, “where two the Supreme Court’s words, “repeals by implication are disfavored.”26 Instead, “where two
statutes are ‘capable of co-existence, it is the duty of the courts, absent a clearly expressed statutes are ‘capable of co-existence, it is the duty of the courts, absent a clearly expressed
congressional intention to the contrary, to regard each as effective’”27 and to attempt to congressional intention to the contrary, to regard each as effective’”27 and to attempt to
“harmonize[]” their provisions.28 The Supreme Court expounded the reasons behind these “harmonize[]” their provisions.28 The Supreme Court expounded the reasons behind these
principles in a 2018 decision: principles in a 2018 decision:
Respect for Congress as drafter counsels against too easily finding irreconcilable conflicts Respect for Congress as drafter counsels against too easily finding irreconcilable conflicts
in its work. Morein its work. More ~~than that, respect for~~ than that, respect for the separationthe separation of powersof powers ~~counsels~~ counsels restraint. restraint.
Allowing judgesAllowing judges to pick and choose between to pick and choose between ~~s tatutes risks transforming~~ statutes risks transforming them from them from
expounders ofexpounders of what thewhat the lawlaw is into policymakers choosing into policymakers choosing what the lawwhat the law should be. Our . Our
rules aiming for harmony over conflict in statutory interpretation grow from an rules aiming for harmony over conflict in statutory interpretation grow from an
appreciation that it’s the job of Congress by legislation, not this Court by supposition, both appreciation that it’s the job of Congress by legislation, not this Court by supposition, both
to write the laws and to repeal them.29 to write the laws and to repeal them.29
There are, however, two, limited circumstances in which a court may recognize an implied repeal There are, however, two, limited circumstances in which a court may recognize an implied repeal
of an earlier law. First, if a new law poses an “of an earlier law. First, if a new law poses an “irreconcilable conflict” with an existing law, the ” with an existing law, the
new law implicitlynew law implicitly repeals the earlier one “to the extent of the conflict.”30 An irreconcilable repeals the earlier one “to the extent of the conflict.”30 An irreconcilable
conflict occurs only when “there is a positive repugnancy between [the two laws]” or “they conflict occurs only when “there is a positive repugnancy between [the two laws]” or “they
cannot cannot ~~mutual y~~mutually coexist.”31 Second, a court may recognize an implied repeal “if the later act coexist.”31 Second, a court may recognize an implied repeal “if the later act
covers the whole subject of the earlier one and is of the earlier one and is clearly intended as a substitute.”32 .”32
Congressional intent to wholly replace the old law is key because the Supreme Court “has not Congressional intent to wholly replace the old law is key because the Supreme Court “has not
~~hesitated to give effect to two statutes that overlap, so long as each [statute] reaches some distinct~~
~~cases.”33~~

that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdictionoriginal but not exclusive jurisdiction of all civil proceedings arising underof all civil proceedings arising under title 11, or arising in or related to cases title 11, or arising in or related to cases
under title 11.” (emphasis added));under title 11.” (emphasis added)); 29 U.S.C.29 U.S.C. § 3174(c)(3)(B)(i) (“§ 3174(c)(3)(B)(i) (“Notwithstanding section 479B of the Higher
Education Act of 1965 (20 U.S.C. (20 U.S.C. § 1087uu) and § 1087uu) and except as provided in clause (ii), provision of such training services , provision of such training services
shall be limited to individualsshall be limited to individuals ~~who~~ who. . . .” (emphasis added)).. . . .” (emphasis added)). See infra “ General Rules and Exceptions”” and and
“‘“Notwithstanding” Clauses.”
26 26 Ruckelshaus, 467 U.S. at 1017 (internal quotation marks omitted) (quoting Reg’l Rail Reorganization Act Cases,, 467 U.S. at 1017 (internal quotation marks omitted) (quoting Reg’l Rail Reorganization Act Cases, 419 419
U.S.U.S. 102, 133 (1974)). 102, 133 (1974)).
27 27 Id.; ; see, e.g., POM Wonderful LLC v. Coca-Cola Co., 573 U.S., POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102, 115, 118 (2014) (holding that the Food, Drug, 102, 115, 118 (2014) (holding that the Food, Drug,
and Cosmetic Act (FDCA)and Cosmetic Act (FDCA) ~~did~~ did not preclude the petitioner’s Lanham Act false labeling suit, reasoning that the statutes not preclude the petitioner’s Lanham Act false labeling suit, reasoning that the statutes
werewere “complementary” because “[a]lthough both statutes touch on food and beverage labeling,“complementary” because “[a]lthough both statutes touch on food and beverage labeling, the Lanham Act the Lanham Act
protects commercial interests against unfair competitionprotects commercial interests against unfair competition , while the FDCA protects public health and safety”); , while the FDCA protects public health and safety”);
Morton v. Mancari, 417 U.S. 535, 550–51 (1974) (“Morton v. Mancari, 417 U.S. 535, 550–51 (1974) (“ Where there is no clear intention otherwise, a specific statute will Where there is no clear intention otherwise, a specific statute will
not be controlled or nullified by a general one, regardlessnot be controlled or nullified by a general one, regardless of the priority of of the priority of ~~enact ment.”).~~
enactment.”). 28 28 Epic Sys. Corp., 138 S., 138 S. Ct. at 1624 (“When confronted with two Acts of Congress allegedlyCt. at 1624 (“When confronted with two Acts of Congress allegedly touching on the same touching on the same
topic, this Court is not at ‘liberty to pick and choose among congressional enactments’ and must instead strive ‘to give topic, this Court is not at ‘liberty to pick and choose among congressional enactments’ and must instead strive ‘to give
effect to both.’” (quoting effect to both.’” (quoting Morton, 417 U.S. at 551)). , 417 U.S. at 551)).
29 29 Id.
30 Posadas v. Nat’l City Bank, 296 U.S. 497, 503 (1936) (emphasis added). 30 Posadas v. Nat’l City Bank, 296 U.S. 497, 503 (1936) (emphasis added).
31 Radzanower31 Radzanower ~~v. T ouche~~ v. Touche Ross & Co., 426 U.S. Ross & Co., 426 U.S. 148, 155 (1976) (“148, 155 (1976) (“ It is not enough to show that the two statutes It is not enough to show that the two statutes
produce differing results whenproduce differing results when applied to the same factual situation, for that no more than states the problem.applied to the same factual situation, for that no more than states the problem. ”); ”); see
also J.E.M. Ag. Supply,J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 142 (2001) (“Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 142 (2001) (“ The rarity with which [the Court The rarity with which [the Court
has] discovered implied repeals is duehas] discovered implied repeals is due to the relatively stringent standard for such findings,to the relatively stringent standard for such findings, namely, that there be namely, that there be
an irreconcilable conflictan irreconcilable conflict between the two federal statutes at issue.” (internal quotation marks and citation omitted)); between the two federal statutes at issue.” (internal quotation marks and citation omitted));
see, e.g., EC , EC ~~T erm~~Term of Years of Years ~~T r~~Tr. v. United States, 550 U.S. 429, 435 (2007) (“. v. United States, 550 U.S. 429, 435 (2007) (“ We simply cannot reconcile the 9-month We simply cannot reconcile the 9-month
limitations period for a wrongfullimitations period for a wrongful levy claim underlevy claim under § 7426(a)(1) with the notion that the same challenge would§ 7426(a)(1) with the notion that the same challenge would be open be open
under §under § 1346(a)(1) for up to four years.”). 1346(a)(1) for up to four years.”).
32 32 Posadas, 296 U.S. at 503 (emphasis added)., 296 U.S. at 503 (emphasis added).
~~33 J.E.M. Ag. Supply, Inc., 534 U.S. at 144.~~
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hesitated to give effect to two statutes that overlap, so long as each [statute] reaches some distinct cases.”33 Freestanding Versus Amendatory Bills
~~Bil s,~~ Bills, once enacted, amend the law, but they can do so in one of two ways.34 They can create new once enacted, amend the law, but they can do so in one of two ways.34 They can create new
statements of law that are not tied to an existing statute, or they can amend one or more existing statements of law that are not tied to an existing statute, or they can amend one or more existing
statutes.35 The statutes.35 The ~~bil~~ bill text itself text itself ~~general y~~generally informs the reader of the type of change the informs the reader of the type of change the ~~bil~~ bill, or a given , or a given
section of a section of a ~~bil~~ bill, would make. , would make.
In a freestanding In a freestanding ~~bil~~ bill, the legal requirements or prohibitions are set out under sections of the , the legal requirements or prohibitions are set out under sections of the ~~bil~~
bill without reference to an existing public law. For example, in the without reference to an existing public law. For example, in the ~~bil~~ bill excerpt shown iexcerpt shown in Figure 1,36 ,36
requirements related to a Department of Veterans Affairs hiring plan are listed directly under requirements related to a Department of Veterans Affairs hiring plan are listed directly under
section 3 of the section 3 of the ~~bil .~~

~~34 See generally CRS~~ bill. 33 J.E.M. Ag. Supply, Inc., 534 U.S. at 144. 34 See generally CRS Report R45190, Report R45190, From Slip Law to United States Code: A Guide to Federal Statutes for
Congressional Staff, by Eva M. , by Eva M. ~~T arnay~~Tarnay. .
35 35 See id.; ; see also MIKVA ET AL., MIKVA ET AL., supra note 7, at 76 (explaining that the fact that a statute is “freestanding” does not note 7, at 76 (explaining that the fact that a statute is “freestanding” does not
mean that it “has not been the subject matter of prior law, butmean that it “has not been the subject matter of prior law, but that this statute does not expressly amend existing that this statute does not expressly amend existing
statutes”). statutes”).
36 Excerpts from actual bills36 Excerpts from actual bills are provided throughout this report for illustration, and their inclusion does not imply the are provided throughout this report for illustration, and their inclusion does not imply the
endorsement of any particular languageendorsement of any particular language or drafting style. or drafting style.
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Figure 1. Freestanding Bill with Requirements Under Separate Bill Sections

Source: VA Health Center Management Stability and ImprovementVA Health Center Management Stability and Improvement Act, H.R. 3956, 114th Cong. (as referredAct, H.R. 3956, 114th Cong. (as referred in in
Senate, May 24, 2016), https://www.congress.gov/114/bil s/hr3956/BILLS-114hr3956rfs.pdf#page=3.Senate, May 24, 2016), https://www.congress.gov/114/bil s/hr3956/BILLS-114hr3956rfs.pdf#page=3.
A freestanding A freestanding ~~bil~~ bill or section may be written in the form of a new statutory title.37 For example, or section may be written in the form of a new statutory title.37 For example,
the 114th Congress considered and enacted a the 114th Congress considered and enacted a ~~bil~~ bill “to implement the Convention on the “to implement the Convention on the
Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean . . . Conservation and Management of High Seas Fisheries Resources in the North Pacific Ocean . . .
and for other purposes.”38 As shown and for other purposes.”38 As shown inin Figure 2, , ~~the~~the first (and only)39 section of the first (and only)39 section of the ~~bil~~ bill contains contains
a short title stated as follows: “This Act may be cited as the ‘Ensuring Access to Pacific Fisheries a short title stated as follows: “This Act may be cited as the ‘Ensuring Access to Pacific Fisheries
Act’.” Directly below the short title, the Act’.” Directly below the short title, the ~~bil~~ bill sets forth the six titles that comprise the Ensuring sets forth the six titles that comprise the Ensuring
Access to Pacific Fisheries Act, beginning with Title I, “NORTH PACIFIC FISHERIES.” In this Access to Pacific Fisheries Act, beginning with Title I, “NORTH PACIFIC FISHERIES.” In this
example, “SECTION 1. SHORT TITLE” refers to the first section of the example, “SECTION 1. SHORT TITLE” refers to the first section of the ~~bil~~ bill, while the reference , while the reference

37 37 See LAWRENCE E. FILSON & SANDRA L. STROKOFF, THE LEGISLATIVE DRAFTER’S DESK REFERENCE 491 tbl. 33.6 (2d LAWRENCE E. FILSON & SANDRA L. STROKOFF, THE LEGISLATIVE DRAFTER’S DESK REFERENCE 491 tbl. 33.6 (2d
ed. 2008) (comparing the superior headings useded. 2008) (comparing the superior headings used in various federal drafting styles, with each beginningin various federal drafting styles, with each beginning with “title”).with “title”).
38 38 See EnsuringEnsuring Access to Pacific Fisheries Act, H.R. 6452, 114th Cong. (as introduced, Dec. 7, 2016), Access to Pacific Fisheries Act, H.R. 6452, 114th Cong. (as introduced, Dec. 7, 2016),
https://www.congress.gov/114/bills/hr6452/BILLS-114hr6452ih.pdf; Ensuring Access to Pacific Fisherieshttps://www.congress.gov/114/bills/hr6452/BILLS-114hr6452ih.pdf; Ensuring Access to Pacific Fisheries Act, Pub. L. Act, Pub. L.
No. 114-327, 130 Stat. 1974 (Dec. 16, 2016), https://www.congress.gov/114/plaws/publ327/PLAW-114publ327.pdf. No. 114-327, 130 Stat. 1974 (Dec. 16, 2016), https://www.congress.gov/114/plaws/publ327/PLAW-114publ327.pdf.
39 Section 1 happens to be the only section of this bill, but39 Section 1 happens to be the only section of this bill, but freestanding billsfreestanding bills can have more than one section acan have more than one section as Figure
1 illustrates.illustrates.
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to “SEC. 101. DEFINITIONS” refers to the first section of title I, subtitle A of the Ensuring to “SEC. 101. DEFINITIONS” refers to the first section of title I, subtitle A of the Ensuring
Access to Pacific Fisheries Act. Access to Pacific Fisheries Act.
Figure 2. Freestanding Bill in the Form of a Title

Source: Ensuring Access to Pacific FisheriesEnsuring Access to Pacific Fisheries Act, H.R. 6452, 114th CongressAct, H.R. 6452, 114th Congress (2016) (as enrol ed), (2016) (as enrol ed),
https://www.congress.gov/114/bil s/hr6452/BILLS-114hr6452enr.pdf. https://www.congress.gov/114/bil s/hr6452/BILLS-114hr6452enr.pdf.
Unlike Unlike freestanding freestanding ~~bil s~~bills, amendatory , amendatory ~~bil s~~bills or amendatory sections in a or amendatory sections in a ~~bil typical y~~bill typically include a include a
clause referencing a specific section of the existing law (e.g., “clause referencing a specific section of the existing law (e.g., “~~Section~~section # of title X”) and signaling # of title X”) and signaling
that an amendment that an amendment ~~wil~~ will follow (e.g., “is amended by . . .”).40 For example, another follow (e.g., “is amended by . . .”).40 For example, another ~~bil~~ bill considered considered
and enacted by the 114th Congress amends an existing section of title 5 of the and enacted by the 114th Congress amends an existing section of title 5 of the U.S. Code.41 This .41 This

40 40 See HOLC MANUAL ON DRAFTING STYLE, HOLC MANUAL ON DRAFTING STYLE, supra note 1, at 34–35 (“Amendatory bills . . . are stated in the indicative note 1, at 34–35 (“Amendatory bills . . . are stated in the indicative
mood. Example: ‘Section 12 of the ABC Act ismood. Example: ‘Section 12 of the ABC Act is amended by striking ‘XX’ and inserting ‘YY’.’.”); amended by striking ‘XX’ and inserting ‘YY’.’.”); see generally
FILSON & STROKOFF, FILSON & STROKOFF, supra note 37, at 191 (distinguishing betweennote 37, at 191 (distinguishing between the “the “ vehicular language” that introduces the vehicular language” that introduces the
amendment and the amendment itself). amendment and the amendment itself).
41 41 See H.R. 4902, 114th Cong. (as introduced, Apr. 12, 2016), https://www.congress.gov/114/bills/hr4902/BILLS-H.R. 4902, 114th Cong. (as introduced, Apr. 12, 2016), https://www.congress.gov/114/bills/hr4902/BILLS-
114hr4902ih.pdf; Act of Dec. 8, 2016, Pub. L. No. 114114hr4902ih.pdf; Act of Dec. 8, 2016, Pub. L. No. 114 -250, 130 Stat. 1001, https://www.congress.gov/114/plaws/-250, 130 Stat. 1001, https://www.congress.gov/114/plaws/
publ250/PLAW-114publ250.pdf. publ250/PLAW-114publ250.pdf.
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~~bil~~ bill, an excerpt of which appears , an excerpt of which appears atat Figure 3, is titled an act42 “to amend title 5, United States , is titled an act42 “to amend title 5, United States
Code, to expand law enforcement availabilityCode, to expand law enforcement availability pay to employees of U.S. Customs and Border pay to employees of U.S. Customs and Border
Protection’s Air and Marine Operations.” Section 1 of the Protection’s Air and Marine Operations.” Section 1 of the ~~bil~~ bill states that “Section 5545a(i) of title states that “Section 5545a(i) of title
5, United States Code, is amended” by striking certain words and inserting new language. 5, United States Code, is amended” by striking certain words and inserting new language.
Figure 3. Amendatory Bill Proposing Amendments to U.S. Code

Source: H.R. 4902, 114th Cong. (2016) (as enrol ed),H.R. 4902, 114th Cong. (2016) (as enrol ed), https://www.congress.gov/114/bil s/hr4902/BILLS-114https://www.congress.gov/114/bil s/hr4902/BILLS-114
hr4902enr.pdf. hr4902enr.pdf.
As shown i As shown in Figure 3, ~~when a bil~~ when a bill would amend an existing statute, the text to be added or would amend an existing statute, the text to be added or
deleted is placed in quotation marks. Amendatory deleted is placed in quotation marks. Amendatory ~~bil s~~bills can also have freestanding provisions, can also have freestanding provisions,
such as the “Applicability”such as the “Applicability” provision in section 1(b).43 Congressional drafters sometimes refer to provision in section 1(b).43 Congressional drafters sometimes refer to
amendments in a amendments in a ~~bil~~ bill as “inside the quotes” and freestanding provisions as “outside the quotes.”44 as “inside the quotes” and freestanding provisions as “outside the quotes.”44
The statute’s table of contents in the The statute’s table of contents in the U.S. Code can help to orient readers to the amendment’s can help to orient readers to the amendment’s
place in the place in the ~~overal~~ overall statutory scheme and any general rules or definitions that might apply to the statutory scheme and any general rules or definitions that might apply to the
~~bil~~ bill.45 To understand the .45 To understand the specific amendments the amendments the ~~bil~~ bill is proposing, it is sometimes necessary to is proposing, it is sometimes necessary to
annotate a copy of the statute that the annotate a copy of the statute that the ~~bil~~ bill is amending to see what language would be added or is amending to see what language would be added or
~~deleted.46~~

deleted.46 42 42 See supra note 18 (explaining that a bill isnote 18 (explaining that a bill is styled as “An Act” once itstyled as “An Act” once it ~~passes~~ passes one house of Congress). one house of Congress).
43 43 See HOLC Guide to Legislative Drafting, , supra note 18 (“note 18 (“ Even if all of the substantive provisions of a billEven if all of the substantive provisions of a bill are inside are inside
the quotes, it willthe quotes, it will still have technical provisions that are freestanding, most notably amendatory instructions that still have technical provisions that are freestanding, most notably amendatory instructions that
indicate whereindicate where in the existing statute the new material is to be placed.”).in the existing statute the new material is to be placed.”).
44 44 See id.
45 45 See, e.g., Off. of Law, Off. of Law Revision Counsel, Revision Counsel, United States Code, https://uscode.house.gov/browse/prelim@title5/part3/, https://uscode.house.gov/browse/prelim@title5/part3/
subpartD/chapter55/subchapter5&edition=prelim (last visited July 27, 2020) (displaying the table of contents for subpartD/chapter55/subchapter5&edition=prelim (last visited July 27, 2020) (displaying the table of contents for
5 U.S.C.5 U.S.C. § 5545a referenced § 5545a referenced inin Figure 3).
. 46 When a bill46 When a bill is reported out of committee, a comparative print or “Ramseyer” is prepared to indicate changes to the is reported out of committee, a comparative print or “Ramseyer” is prepared to indicate changes to the
existing statutory section using strike-throughs for deletions, italics for additions, or other comparative notations. existing statutory section using strike-throughs for deletions, italics for additions, or other comparative notations.
See RULES OF THE HOUSE OF REPRESENTATIVES 655 (2019) (House Rule XIII, cl. 3(e)(1)), https://www.govinfo.gov/RULES OF THE HOUSE OF REPRESENTATIVES 655 (2019) (House Rule XIII, cl. 3(e)(1)), https://www.govinfo.gov/
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The U.S. Code and Positive Law Codification
Once a Once a ~~bil~~ bill is enacted into law, it may then be added to the is enacted into law, it may then be added to the U.S. Code (the (the Code), the official ), the official
compilation of the “general and permanent” federal laws.47 The Office of the Law Revision compilation of the “general and permanent” federal laws.47 The Office of the Law Revision
Counsel (OLRC) within the U.S. House of Representatives compiles and publishes the Counsel (OLRC) within the U.S. House of Representatives compiles and publishes the Code.48 .48
The The Code is arranged by subject matter and divided into 54 titles.49 The main unit of a title is a is arranged by subject matter and divided into 54 titles.49 The main unit of a title is a
section, and within that, content may be further delineated by subsection, paragraph, and section, and within that, content may be further delineated by subsection, paragraph, and
subparagraph as subparagraph as inin Figure 4.50 A given 50 A given Code title may also include broader units such as subtitles title may also include broader units such as subtitles
or chapters that contain multiple sections.51or chapters that contain multiple sections.51
Figure 4. Divisions Within a Section of the Code

Source: Excerpt of 10 U.S.C.Excerpt of 10 U.S.C. § 7104 (2019) from § 7104 (2019) from Lexis Advance..
Because the Because the U.S. Code contains only the “general and permanent laws of the United States,” it contains only the “general and permanent laws of the United States,” it
does not include “[t]emporary laws, such as appropriations acts, and special laws, such as one does not include “[t]emporary laws, such as appropriations acts, and special laws, such as one
naming a post office.”52 Moreover, with certain freestanding provisions, OLRC exercises its naming a post office.”52 Moreover, with certain freestanding provisions, OLRC exercises its
discretion in determining which statutory provisions to assign to discretion in determining which statutory provisions to assign to Code sections (i.e., the basic sections (i.e., the basic

content/pkg/HMAN-116/pdf/HMAN-116-pg642.pdf#page=14; SENATE MANUAL, S. Doc. No. 113-1, at 50–51 (2013) content/pkg/HMAN-116/pdf/HMAN-116-pg642.pdf#page=14; SENATE MANUAL, S. Doc. No. 113-1, at 50–51 (2013)
(Senate Standing Rule(Senate Standing Rule 26.12), https://www.govinfo.gov/content/pkg/SMAN-113/pdf/SMAN-113.pdf#page=58. 26.12), https://www.govinfo.gov/content/pkg/SMAN-113/pdf/SMAN-113.pdf#page=58.
47 1 U.S.C.47 1 U.S.C. § § 204(a). 204(a).
48 2 U.S.C.48 2 U.S.C. §§ §§ 285, 285b. 285, 285b.
49 Off. of Law49 Off. of Law Revision Counsel, Revision Counsel, United States Code: About the United States Code and This Website, ,
http://uscode.house.gov/about_code.xhtml (last visited July 27, 2020). http://uscode.house.gov/about_code.xhtml (last visited July 27, 2020).
50 Off. of Law50 Off. of Law Revision Counsel, Revision Counsel, United States Code: Detailed Guide to the United States Code Content and Features, ,
https://uscode.house.gov/detailed_guide.xhtml (last visited Julyhttps://uscode.house.gov/detailed_guide.xhtml (last visited July 27, 2020) [hereinafter 27, 2020) [hereinafter Detailed Guide to the U.S.
Code]. A subparagraph may be further broken down into “]. A subparagraph may be further broken down into “ clauses, subclauses,clauses, subclauses, and items.” and items.” Id.
51 51 Id.; ; see, e.g., 11 U.S.C., 11 U.S.C. §§ §§ 101 et seq. (Bankruptcy). 101 et seq. (Bankruptcy).
52 Off. of Law52 Off. of Law Revision Counsel, Revision Counsel, United States Code: Frequently Asked Questions and Glossary, ,
http://uscode.house.gov/faq.xhtml (last visited July 27, 2020). http://uscode.house.gov/faq.xhtml (last visited July 27, 2020).
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organizational units of the organizational units of the Code) and which to include as statutory notes following a particular ) and which to include as statutory notes following a particular
section’s text.53section’s text.53

Statutory Versus Editorial Notes
Placing a public law’s text in a Placing a public law’s text in a statutory note does not diminishdoes not diminish its status as federal law.54 In other words,its status as federal law.54 In other words, it has it has
the same legal effect regardlessthe same legal effect regardless of where it is classifiedof where it is classified in (i.e.,in (i.e., added to) the added to) the Code. .
The The Code also contains also contains editorial notes.55 Like.55 Like statutory notes, these notes fol ow the text of a statutory notes, these notes fol ow the text of a Code section. section.
However,However, unlike statutory notes, editorialunlike statutory notes, editorial notes are not provisions of law enacted by Congress.notes are not provisions of law enacted by Congress. Instead, editorial Instead, editorial
notes are “prepared by the Code editors to assist users of the Code,” providing “information about the section’s notes are “prepared by the Code editors to assist users of the Code,” providing “information about the section’s
source,source, derivation, history, references,derivation, history, references, translations, effectivenesstranslations, effectiveness and applicability, codification, defined terms, and applicability, codification, defined terms,
prospective amendments,prospective amendments, and related matters.”56 and related matters.”56

There are two types of titles in the There are two types of titles in the Code: positive law and non-positive law titles.57 Non-positive : positive law and non-positive law titles.57 Non-positive
law titles of the law titles of the Code consist of separately enacted federal statutes arranged and edited by OLRC consist of separately enacted federal statutes arranged and edited by OLRC
to conform to the to conform to the Code’s style and numbering scheme.58 In contrast, a positive law title “is ’s style and numbering scheme.58 In contrast, a positive law title “is
~~basical y~~basically one law enacted by Congress in the form of a title of the Code,” which does not then one law enacted by Congress in the form of a title of the Code,” which does not then
undergo editorial changes to the title’s organization, structure, or designations.59 In a process undergo editorial changes to the title’s organization, structure, or designations.59 In a process
~~cal ed~~called positive law codification, OLRC is tasked with organizing statutes enacted at different positive law codification, OLRC is tasked with organizing statutes enacted at different
times into a codification times into a codification ~~bil~~ bill so that Congress can reenact the law as a single restatement of the so that Congress can reenact the law as a single restatement of the
law on that subject.60law on that subject.60
For practical purposes, the distinction between positive and non-positive laws seldom affects how For practical purposes, the distinction between positive and non-positive laws seldom affects how
a given law is interpreted.61 Congress has said that both forms of a given law is interpreted.61 Congress has said that both forms of Code titles contain “the laws” titles contain “the laws”
and can be introduced as evidence of such laws in court.62 However, in the event of a discrepancy and can be introduced as evidence of such laws in court.62 However, in the event of a discrepancy

53 53 See generally Off. of LawOff. of Law Revision Counsel, Revision Counsel, United States Code: About Classification of Laws to the United States
Code, http://uscode.house.gov/about_classification.xhtml (last visited July 27, 2020); , http://uscode.house.gov/about_classification.xhtml (last visited July 27, 2020); Detailed Guide to the U.S. Code, ,
supra note 50. note 50.
54 54 See AldanaAldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1251 (11th Cir. 2005)v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1251 (11th Cir. 2005) (per curiam) (“(per curiam) (“ That the That the
[[~~T orture~~Torture Victim Protection Act of 1991 ( Victim Protection Act of 1991 (~~T VPA~~TVPA)], which was)], which was ~~published~~ published in the Statutes at Large, appears in the United in the Statutes at Large, appears in the United
States Code as a historical and statutory note to the Alien States Code as a historical and statutory note to the Alien ~~T ort~~Tort Act does not make the Act does not make the ~~T VPA~~TVPA any less the law of the any less the law of the
land.”); Conyers v. MSPB,land.”); Conyers v. MSPB, 388 F.3d 1380, 1382 n.2 (Fed. Cir. 2004) (“388 F.3d 1380, 1382 n.2 (Fed. Cir. 2004) (“ [T [T]he fact that this provision [of the Aviation ]he fact that this provision [of the Aviation
and and ~~T ransportation~~Transportation Security Act] was Security Act] was codified as a statutory note is of no moment. The Statutes at Large provide the codified as a statutory note is of no moment. The Statutes at Large provide the
evidence of the lawsevidence of the laws of the United States.”).of the United States.”).
55 55 Detailed Guide to the U.S. Code, , supra note 50. note 50.
56 56 Id.
57 57 ~~See CRS~~ See CRS Report R45190, Report R45190, From Slip Law to United States Code: A Guide to Federal Statutes for Congressional Staff, ,
supra note 34, atsupra note 34, at 6–8. 6–8.
58 58 See Off. of Law Revision Counsel,Off. of Law Revision Counsel, United States Code: Positive Law Codification, ,
https://uscode.house.gov/codification/legislation.shtml (last visited July 27, 2020) [hereinafter https://uscode.house.gov/codification/legislation.shtml (last visited July 27, 2020) [hereinafter Positive Law
Codification]. ].
59 59 Id.
60 60 See id. (explaining that(explaining that 2 U.S.C. § 285b “provides the mandate for positive law codification”). 2 U.S.C. § 285b “provides the mandate for positive law codification”).
61 61 See, e.g.,, ~~T HE~~THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION R. 12.2.1(a), 12.3 (Columbia L. Rev. Ass’n et al. eds., BLUEBOOK: A UNIFORM SYSTEM OF CITATION R. 12.2.1(a), 12.3 (Columbia L. Rev. Ass’n et al. eds.,
21st ed. 2020) (directing legal professionals to “21st ed. 2020) (directing legal professionals to “ cite statutes currently in force” to the cite statutes currently in force” to the U.S. Code “[i]f available”). “[i]f available”).
62 1 U.S.C.62 1 U.S.C. § § 204(a) (“204(a) (“ ~~T he~~The matter set forth in the edition of the Code of Laws of the United States current at any time matter set forth in the edition of the Code of Laws of the United States current at any time
shall, together with the then current supplement, if any, establish prima facie the lawsshall, together with the then current supplement, if any, establish prima facie the laws of the United States, general and of the United States, general and
permanent in their nature, in force on the day preceding the commencement of the session following the last session the permanent in their nature, in force on the day preceding the commencement of the session following the last session the
legislation of which is included:legislation of which is included: Provided, however, ~~T hat~~That whenever titles of such Code whenever titles of such Code shall have been enacted into shall have been enacted into
positive law the text thereof shall be legalpositive law the text thereof shall be legal evidence of the lawsevidence of the laws therein contained, in all the courts of the United States, therein contained, in all the courts of the United States,
the several States, and the the several States, and the ~~T erritories~~Territories and insular possessions of the United States.”). and insular possessions of the United States.”).
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or dispute about the wording of a non-positive law, the controlling wording appears not in the or dispute about the wording of a non-positive law, the controlling wording appears not in the
Code, but in the , but in the United States Statutes at Large (the (the Statutes at Large), the official compilation of ), the official compilation of
the laws of each congressional session.63 Once again, this distinction is because non-positive law the laws of each congressional session.63 Once again, this distinction is because non-positive law
titles reflect editorial changes, while positive law titles have the “imprimatur” of Congress titles reflect editorial changes, while positive law titles have the “imprimatur” of Congress
because they were passed by both houses and presented to the President in precisely that form.64 because they were passed by both houses and presented to the President in precisely that form.64
Thus, courts may not consider OLRC’s editorial changes to be persuasive evidence of Congress’s Thus, courts may not consider OLRC’s editorial changes to be persuasive evidence of Congress’s
meaning when interpreting a statute.65meaning when interpreting a statute.65
When it comes to understanding a When it comes to understanding a ~~bil~~ bill, it also helps to know that amendments to positive and non-, it also helps to know that amendments to positive and non-
positive laws are expressed differently in legislation. Amendments to positive law titles, whether positive laws are expressed differently in legislation. Amendments to positive law titles, whether
amending an existing section or adding a new title, can be expressed as amendments to the amending an existing section or adding a new title, can be expressed as amendments to the Code
itself (e.gitself (e.g.., Figure 3). In contrast, if Congress seeks to amend or add a new section to a non-). In contrast, if Congress seeks to amend or add a new section to a non-
positive law title, it must amend the original act that enacted that law.66 However, it may note the positive law title, it must amend the original act that enacted that law.66 However, it may note the
U.S. Code reference reference ~~parenthetical y (e.g.~~parenthetically (e.g ., Figure 5). , Figure 5).

63 63 See Positive Law Codification, , supra note 58note 58 (“Statutory text appearing in a non-positive law title may be rebutted (“Statutory text appearing in a non-positive law title may be rebutted
by showingby showing that the wording in the underlying statute is different. that the wording in the underlying statute is different. ~~T ypically, statuto ry~~Typically, statutory text appearing in the Statutes at text appearing in the Statutes at
Large is presented as proof of the wordsLarge is presented as proof of the words in the underlying statute. in the underlying statute. ~~T he~~The text of the law appearing in the Statutes at Large text of the law appearing in the Statutes at Large
prevails over the text of the law appearing in a nonprevails over the text of the law appearing in a non -positive law title.”); Gov’t Publ’g Off., -positive law title.”); Gov’t Publ’g Off., United States Statutes at
Large, https://www.govinfo.gov/app/collection/, https://www.govinfo.gov/app/collection/~~ST AT UTE~~STATUTE (last visited July 27, 2020) (noting that the (last visited July 27, 2020) (noting that the Statutes at Large
is the “permanent collection of all laws . . . enacted duringis the “permanent collection of all laws . . . enacted during each session of Congress”)each session of Congress”) (citing 1 U.S.C.(citing 1 U.S.C. § § 112 (stating 112 (stating
that the that the Statutes at Large “ “ shall be legalshall be legal evidence of lawsevidence of laws . . . therein contained, in all the courts of the United States”)). . . . therein contained, in all the courts of the United States”)).
64 64 See Positive Law Codification, , supra note 58 (“Because a positive law title is enacted as a whole bynote 58 (“Because a positive law title is enacted as a whole by Congress, and Congress, and
the original enactments are repealed, statutory text appearing in a positive law title has Congress’sthe original enactments are repealed, statutory text appearing in a positive law title has Congress’s ‘authoritative ‘authoritative
imprimatur’ with respect to the wording of the statute.” (quoting Wash.-Dulles imprimatur’ with respect to the wording of the statute.” (quoting Wash.-Dulles ~~T ransp~~Transp., Ltd. v. Metro. Wash. Airports ., Ltd. v. Metro. Wash. Airports
Auth., 263 F.3d 371, 378 n.2 (4th Cir. 2001))). Auth., 263 F.3d 371, 378 n.2 (4th Cir. 2001))).
65 For example, in 65 For example, in Citizens Against Casino Gambling v. Hogen, a U.S., a U.S. district court rejected an agency’s conclusion district court rejected an agency’s conclusion
that a statute providing payments to the Seneca Nation of Indians to resolve inequitiesthat a statute providing payments to the Seneca Nation of Indians to resolve inequities relating to past leases concerned relating to past leases concerned
“a settlement of a land claim” for purposes of another law prohibiting gaming“a settlement of a land claim” for purposes of another law prohibiting gaming on certain lands acquiredon certain lands acquired in trust for the in trust for the
benefit of an Indian tribe. No. 07-CV-0451S, 2008 U.S. Dist. LEXISbenefit of an Indian tribe. No. 07-CV-0451S, 2008 U.S. Dist. LEXIS 52395, at *43–44, 51, 178–86 (W.D.N.Y. July 8, 52395, at *43–44, 51, 178–86 (W.D.N.Y. July 8,
2008). Among other reasons, the court noted that the agency relied on the wrong2008). Among other reasons, the court noted that the agency relied on the wrong title in support of its interpretation.title in support of its interpretation. Id.
at 179. Although the statute’s title, as printed in the at 179. Although the statute’s title, as printed in the U.S. Code, was, was “ “Seneca Nation (New York) Land Claims Seneca Nation (New York) Land Claims
Settlement,” Congress had actually assignedSettlement,” Congress had actually assigned the act the short title “Seneca Nation Settlement Act of 1990,” which the act the short title “Seneca Nation Settlement Act of 1990,” which
mentioned neither the terms “land” nor “claim.” mentioned neither the terms “land” nor “claim.” Id. at 178–79. . at 178–79. ~~T he~~The court held that it was unreasonable for the agency to court held that it was unreasonable for the agency to
rely on the short title printed in the rely on the short title printed in the U.S. Code because because Congress had not yet enacted the applicable Congress had not yet enacted the applicable Code title into title into
positive law. positive law. Id. at 179. at 179.
66 66 See FILSON & STROKOFF, FILSON & STROKOFF, supra note 37, at 330 (instructing drafters not to cite a provision by its note 37, at 330 (instructing drafters not to cite a provision by its U.S. Code
designation unlessdesignation unless it is in a positive-law title of the it is in a positive-law title of the Code). ).
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Figure 5. Amendatory Bill Proposing Amendments to Act

Source: Higher Education Extension Act of 2015, H.R. 3594, 114th Cong. (as introduced, Sept. 24, 2015), Higher Education Extension Act of 2015, H.R. 3594, 114th Cong. (as introduced, Sept. 24, 2015),
https://www.congress.gov/114/bil s/hr3594/BILLS-114hr3594ih.pdf. https://www.congress.gov/114/bil s/hr3594/BILLS-114hr3594ih.pdf.
The prospective legal effect of any given provision in a The prospective legal effect of any given provision in a ~~bil~~ bill—whether it, for example, creates a —whether it, for example, creates a
requirement, imposes a penalty, prohibits certain conduct, directs an agency to act, or delegates requirement, imposes a penalty, prohibits certain conduct, directs an agency to act, or delegates
authority—does not depend on whether the language amends a positive law or non-positive law authority—does not depend on whether the language amends a positive law or non-positive law
title of the title of the Code. Instead, the provision’s legal effect depends on its precise language in the . Instead, the provision’s legal effect depends on its precise language in the
context of the context of the ~~bil~~ bill as a whole.67 Because federal as a whole.67 Because federal ~~bil s~~bills often follow a similar format, it helps to often follow a similar format, it helps to
think about the various parts of a think about the various parts of a ~~bil~~ bill and the legal rules and the legal rules ~~general y~~generally associated with those types of associated with those types of
provisions, which are the focus of the second part of this report. provisions, which are the focus of the second part of this report.
The Role of Statutory Interpretation
While the legislativeWhile the legislative power resides in Congress,68 other elected officials, entities in the public and power resides in Congress,68 other elected officials, entities in the public and
private sectors, and individuals private sectors, and individuals al all have an interest in what acts of Congress say and mean. have an interest in what acts of Congress say and mean.
Consider the basic life cycle of a law. It starts out as a Consider the basic life cycle of a law. It starts out as a ~~bil~~ bill subject to interpretation by its drafters, subject to interpretation by its drafters,
cosponsors, committees, and other stakeholders, before each house of Congress votes on it as a cosponsors, committees, and other stakeholders, before each house of Congress votes on it as a

67 67 See, e.g., Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S,, Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 566 U.S.566 U.S. 399, 412 (2012)399, 412 (2012) (construing “two statutory (construing “two statutory
phrases” “phrases” “ against the backdrop of yet a third statutory phrase,” and “in the context of the entire statute”); Hawaii v. against the backdrop of yet a third statutory phrase,” and “in the context of the entire statute”); Hawaii v.
Office of HawaiianOffice of Hawaiian Affairs, 556 U.S.Affairs, 556 U.S. 163, 173 (2009) (observing that the “163, 173 (2009) (observing that the “ first substantive provision” in a joint first substantive provision” in a joint
resolution “use[d] six verbs, all of which are conciliatory or precatory” and reasoning that “[s]uch terms are not the resolution “use[d] six verbs, all of which are conciliatory or precatory” and reasoning that “[s]uch terms are not the
kind that Congress useskind that Congress uses to create substantive rights”).to create substantive rights”).
68 U.S. CONST. art. I, § 1. 68 U.S. CONST. art. I, § 1.
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body.69 Congress then presents the body.69 Congress then presents the ~~bil~~ bill to the President, who may sign the to the President, who may sign the ~~bil~~ bill into law, sometimes into law, sometimes
with a signing statement setting forth the President’s interpretation of the law.70 The federal with a signing statement setting forth the President’s interpretation of the law.70 The federal
agencies tasked with implementing that law are often the first to issue official interpretations of agencies tasked with implementing that law are often the first to issue official interpretations of
the statute through guidance documents, rulemaking, agency orders, and other actions.71 If a the statute through guidance documents, rulemaking, agency orders, and other actions.71 If a
dispute about the statute’s meaning is litigated, the courts may also interpret the statute and, dispute about the statute’s meaning is litigated, the courts may also interpret the statute and,
through their rulings, declare what the law means.72 If Congress disagrees with an agency’s or a through their rulings, declare what the law means.72 If Congress disagrees with an agency’s or a
court’s interpretation on a statutory question, it can amend the law to clarify its intent.73 With so court’s interpretation on a statutory question, it can amend the law to clarify its intent.73 With so
many entities weighing in on a law’s meaning, some basic ground rules for interpreting the law many entities weighing in on a law’s meaning, some basic ground rules for interpreting the law
are needed to promote consistent interpretations.74are needed to promote consistent interpretations.74
Statutory interpretation is the exercise, including the process and methods, through which judges, Statutory interpretation is the exercise, including the process and methods, through which judges,
agency counsel, and other legal practitioners decide what a law means.75 At its core, statutory agency counsel, and other legal practitioners decide what a law means.75 At its core, statutory
interpretation involves consideration of a law’s “text, structure, purpose, and history” to discern interpretation involves consideration of a law’s “text, structure, purpose, and history” to discern
Congress’s meaning.76 But it is not a simple formula. While, for the Supreme Court and many Congress’s meaning.76 But it is not a simple formula. While, for the Supreme Court and many
federal courts, statutory interpretation begins with the law’s text,77 there are different approaches federal courts, statutory interpretation begins with the law’s text,77 there are different approaches

69 69 See generally CRS CRS Infographic IG10005, Infographic IG10005, From Bill to Law: Stages of the Legislative Process,, by Valerieby Valerie Heitshusen Heitshusen
and Jennifer E. Manning.and Jennifer E. Manning.
70 70 See, e.g., Presidential Statement on Signing, Presidential Statement on Signing the CARESthe CARES Act, 2020 DAILY COMP. PRES. DOC. 194 (Mar. 27, 2020), Act, 2020 DAILY COMP. PRES. DOC. 194 (Mar. 27, 2020),
https://www.govinfo.gov/content/pkg/DCPD-202000194/pdf/DCPD-202000194.pdf (“https://www.govinfo.gov/content/pkg/DCPD-202000194/pdf/DCPD-202000194.pdf (“ Today, I have signed into law Today, I have signed into law
H.R. 748, the ‘Coronavirus Aid, Relief, and Economic Security Act’ or the ‘CARES’H.R. 748, the ‘Coronavirus Aid, Relief, and Economic Security Act’ or the ‘CARES’ Act (the ‘Act’). Act (the ‘Act’). ~~T he~~The Act makes Act makes
emergency supplemental appropriations and other changes to law to help the Nation emergency supplemental appropriations and other changes to law to help the Nation ~~respon d~~respond to the coronavirus to the coronavirus
outbreak. I note, however, that the Act includes several provisions that raise constitutional concerns.outbreak. I note, however, that the Act includes several provisions that raise constitutional concerns. ”).”).
71 71 See SmileySmiley v. Citibank, N.A, 517 U.S.v. Citibank, N.A, 517 U.S. 735, 740–41 (1996) (“We accord deference to agencies under735, 740–41 (1996) (“We accord deference to agencies under Chevron . . . . . .
becausebecause of a presumption that Congress, when it left ambiguity in a statute meantof a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, for implementation by an agency,
understood that the ambiguity wouldunderstood that the ambiguity would be be resolved, first and foremost, by the agency, and desiredresolved, first and foremost, by the agency, and desired the agency (rather than the agency (rather than
the courts) to possess whatever degreethe courts) to possess whatever degree of discretion the ambiguity allows.”). of discretion the ambiguity allows.”). See generally CRS CRS In FocusIn Focus IF10003, IF10003, An
Overview of Federal Regulations and the ~~Rulem aking~~Rulemaking Process, by Maeve P. Carey. , by Maeve P. Carey.
72 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the province and duty of the judicial 72 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (“It is emphatically the province and duty of the judicial
department to say what the law is. department to say what the law is. ~~T hose~~Those who apply the rule to particular cases, must of necessity expound and interpret who apply the rule to particular cases, must of necessity expound and interpret
that rule. If two lawsthat rule. If two laws conflict with each other, the courts must decide on the operation of each.”); conflict with each other, the courts must decide on the operation of each.”); see also Chevron, Chevron,
U.S.A.,U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984) (“Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984) (“ The judiciary is the final authority on issues The judiciary is the final authority on issues
of statutory construction and mustof statutory construction and must reject administrative constructions which are contrary to clear congressional reject administrative constructions which are contrary to clear congressional
intent.”).intent.”).
73 73 See KimbleKimble v. Marvel Entm’t, LLC, 576 U.S. 446, 456 (2015) (“[U]nlike in a constitutional case, critics of our ruling v. Marvel Entm’t, LLC, 576 U.S. 446, 456 (2015) (“[U]nlike in a constitutional case, critics of our ruling
can take their objections across the street, and Congresscan take their objections across the street, and Congress can correct any mistake it sees. can correct any mistake it sees. ~~T hat~~That is true . . . regardless is true . . . regardless
whether our decision focusedwhether our decision focused only on statutory text or also relied . . . on the policies and purposes animating the law.” only on statutory text or also relied . . . on the policies and purposes animating the law.”
(internal citation omitted)). (internal citation omitted)).
74 74 See SCALIA & GARNER, SCALIA & GARNER, supra note 4, at xxiii (foreword by Hon. Frank H. Easterbrook) (“Interpretation is a human note 4, at xxiii (foreword by Hon. Frank H. Easterbrook) (“Interpretation is a human
enterprise, which cannot be carried out algorithmically by an expert system on a computer. But discretion can be enterprise, which cannot be carried out algorithmically by an expert system on a computer. But discretion can be
hedgedhedged in by rulesin by rules . . . .”). . . . .”).
75 75 See id. at xxvii (preface by Justiceat xxvii (preface by Justice Antonin Scalia & Bryan A. Garner) (professing that “meaning” must be Antonin Scalia & Bryan A. Garner) (professing that “meaning” must be
determined by “convention” because “[n]either written words nor the soundsdetermined by “convention” because “[n]either written words nor the sounds that the written words represent have any that the written words represent have any
inherent meaning”); Abbe R. Gluck,inherent meaning”); Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodology as “Law” and the ErieErie
Doctrine, 120 YALE L.J. 1898, 1997 (2011) (contending that “, 120 YALE L.J. 1898, 1997 (2011) (contending that “ the federal courts do not currently treat statutory the federal courts do not currently treat statutory
interpretation methodology as law but that it wouldinterpretation methodology as law but that it would be permissible,be permissible, maybe even preferable,maybe even preferable, for them to do so”). for them to do so”). ~~T he~~The
process and methods of statutory interpretation are discussedprocess and methods of statutory interpretation are discussed in more detail in CRSin more detail in CRS Report R45153, Report R45153, Statutory
Interpretation: Theories, Tools, and Trends, by Valerie, by Valerie C. Brannon. C. Brannon.
76 Gen. Dynamics Land Sys. v. Cline, 540 U.S. 581, 600 (2004); 76 Gen. Dynamics Land Sys. v. Cline, 540 U.S. 581, 600 (2004); see also MiddlesexMiddlesex Cty. SewerageCty. Sewerage Auth. v. Nat’l Sea Auth. v. Nat’l Sea
Clammers Ass’n, 453 U.S. 1, 13 (1981) (“Clammers Ass’n, 453 U.S. 1, 13 (1981) (“ We look first, of course, to the statutory language . . . . We look first, of course, to the statutory language . . . . ~~T hen~~Then we review the we review the
legislative history and other traditional aids of statutory interpretation to determine congressional intent.”).legislative history and other traditional aids of statutory interpretation to determine congressional intent.”).
77 77 See, e.g., Permanent Mission of India to the UN v. City of New, Permanent Mission of India to the UN v. City of New York, 551 U.S. 193, 197 (2007) (“We begin, York, 551 U.S. 193, 197 (2007) (“We begin,
as always,as always, with the textwith the text of the statute.”); IRS v. WorldCom, Inc., 723 F.3d 346, 352 (of the statute.”); IRS v. WorldCom, Inc., 723 F.3d 346, 352 (~~2d Cir.~~ 2013) (“2013) (“ In interpreting any In interpreting any
statute, we start with its text, giving the languagestatute, we start with its text, giving the language its ordinary meaning.” (internal citations omitted)).its ordinary meaning.” (internal citations omitted)).
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to statutory interpretation and myriad rules and presumptions to consider.78 The Court is guided to statutory interpretation and myriad rules and presumptions to consider.78 The Court is guided
by “canons of construction” developed over time,79 such as the “rule against surplusage,” which by “canons of construction” developed over time,79 such as the “rule against surplusage,” which
states that readers should avoid construing a provision in a way that makes it redundant if another states that readers should avoid construing a provision in a way that makes it redundant if another
plausible reading gives effect to that language.80 These canons provide “default assumptions plausible reading gives effect to that language.80 These canons provide “default assumptions
about the way Congress about the way Congress ~~general y~~generally expresses meaning, but are not ‘rules’ in the sense that they expresses meaning, but are not ‘rules’ in the sense that they
must invariably be applied.”81 The canons themselves can sometimes be in tension.82 In some must invariably be applied.”81 The canons themselves can sometimes be in tension.82 In some
cases, judges disagree over whichcases, judges disagree over which canons apply, leading to different interpretations of the same canons apply, leading to different interpretations of the same
statutory text.83 In other cases, judges disagree over whether resort to linguistic canons is even statutory text.83 In other cases, judges disagree over whether resort to linguistic canons is even
~~necessary.84~~

necessary.84 78 78 See, e.g., James J. Brudney, James J. Brudney & Lawrence Baum,& Lawrence Baum, Protean Statutory Interpretation in the Courts of Appeals, 58 WM. & , 58 WM. &
MARY L. REV. 681, 686 (2017) (examining “MARY L. REV. 681, 686 (2017) (examining “ empirically whether circuit court judges embrace, or clash over, empirically whether circuit court judges embrace, or clash over,
interpretive theories as the [Supreme Court] Justices have so often done, or—alternatively—whether they apply interpretive theories as the [Supreme Court] Justices have so often done, or—alternatively—whether they apply
textualisttextualist and purposive resourcesand purposive resources in waysin ways that are more pragmatic, and lessthat are more pragmatic, and less dogmatic, than dogmatic, than ~~t heir~~their Supreme Court Supreme Court
counterparts”); Aaron-Andrew P. Bruhl, counterparts”); Aaron-Andrew P. Bruhl, Hierarchy and Heterogeneity: How to Read a Statute in a Lower Court, 97 , 97
CORNELL L. REV. 433, 435 (2012) (“CORNELL L. REV. 433, 435 (2012) (“ Although certain interpretive tools and doctrines are fairly wellAlthough certain interpretive tools and doctrines are fairly well established, established,
interpretive methodology displays significant diversity from judgeinterpretive methodology displays significant diversity from judge to judgeto judge and from case to case, both in the Supreme and from case to case, both in the Supreme
Court and in the lower courts.”). Court and in the lower courts.”).
79 79 See, e.g., Epic Sys., Epic Sys. Corp. v. Lewis,Corp. v. Lewis, 138 S. Ct. 1612, 1630 (2018) (“[T]he canon against reading conflicts into statutes 138 S. Ct. 1612, 1630 (2018) (“[T]he canon against reading conflicts into statutes
is a traditional tool of statutory construction and it, along with the other traditional canons we have discussed,is a traditional tool of statutory construction and it, along with the other traditional canons we have discussed, is more is more
than up to the job of solving today’s interpretive puzzle.”). Legal scholars have traced certain canons that modern than up to the job of solving today’s interpretive puzzle.”). Legal scholars have traced certain canons that modern
courts still recognize to the founding era, and some have arguedcourts still recognize to the founding era, and some have argued that the framers of the U.S. Constitution were well that the framers of the U.S. Constitution were well
awareaware of these principles. of these principles. See, e.g., William N. Eskridge,, William N. Eskridge, Jr., Jr., All About Words: Early Understandings of the “Judicial
Power” in Statutory Interpretation, 1776–1806, 101 COLUM. L. REV. 990, 1057 (concluding, from his review, 101 COLUM. L. REV. 990, 1057 (concluding, from his review of the of the
ratifying debates, that “[n]o one questioned the rule of lenity, nor did any debater ever question the authority of ratifying debates, that “[n]o one questioned the rule of lenity, nor did any debater ever question the authority of
Blackstone and Bacon, whoseBlackstone and Bacon, whose canons of statutory construction were libertarian and protective of common law rightscanons of statutory construction were libertarian and protective of common law rights ”). ”).
But legalBut legal scholars have also observedscholars have also observed significant changes in the field of statutory interpretation since the founding. significant changes in the field of statutory interpretation since the founding. See,
e.g., Gluck,, Gluck, supra note 75, at 1988 (asserting that “note 75, at 1988 (asserting that “ the canons of interpretation as understood by the Founders . . . have the canons of interpretation as understood by the Founders . . . have
not been frozen in time” and that the “not been frozen in time” and that the “ Supreme Court continues . . . to generate newSupreme Court continues . . . to generate new interpretive rules”).interpretive rules”).
80 See, e.g.~~, Nat’l Ass’n of Home Builders~~ 80 See, e.g., City of Chicago v. Fulton, 141 S. Ct. 585, 591 (2021) (rejecting a reading that would “render the central command” of a statutory section “largely superfluous”); Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. v. Defs. of Wildlife, 551 U.S. 644, 669 (2007) (“[W]e ~~644, 669 (2007) (“On the dissent’s~~
~~reading, [the section’s] reference to ‘discretionary’ federal involvement is mere surplusage, and we~~ have cautioned have cautioned
against reading a text in a wayagainst reading a text in a way that makes partthat makes part of it redundantof it redundant .”). .”).
81 81 ~~See CRS~~ See CRS Report R45153, Report R45153, Statutory Interpretation: Theories, Tools, and Trends, , supra note 75, at 25 (footnotes note 75, at 25 (footnotes
omitted). omitted).
82 82 See ChickasawChickasaw Nation v. United States, 534 U.S.Nation v. United States, 534 U.S. 84, 94 (2001) (“Specific canons ‘are often countered . . . by some 84, 94 (2001) (“Specific canons ‘are often countered . . . by some
maxim pointing in a different direction.’” (citation omitted)); Landgraf v. Usi Filmmaxim pointing in a different direction.’” (citation omitted)); Landgraf v. Usi Film Prods., 511 U.S. 244, 263 (1994)Prods., 511 U.S. 244, 263 (1994)
(observing that “[i]t is not uncommon to find ‘apparent tension’ between different canons of statutory construction” (observing that “[i]t is not uncommon to find ‘apparent tension’ between different canons of statutory construction”
becausebecause “many of the traditional canons have equal opposites”). “many of the traditional canons have equal opposites”).
83 83 Compare Lockhart v. United States, 136 S. Ct. 958, 962 (2016) (“When this Court has interpreted statutes that Lockhart v. United States, 136 S. Ct. 958, 962 (2016) (“When this Court has interpreted statutes that
includeinclude a list of terms or phrases followeda list of terms or phrases followed by a limiting clause,by a limiting clause, we we have typically applied an have typically applied an ~~in terpretive~~interpretive strategy called strategy called
the ‘rule of the last antecedent.’ the ‘rule of the last antecedent.’ ~~T he~~The rule provides that ‘a limiting clause or phrase . . . should rule provides that ‘a limiting clause or phrase . . . should ordinarily beordinarily be read as read as
modifying only the noun or phrase that it immediately follows.’” (internal citations omitted)), modifying only the noun or phrase that it immediately follows.’” (internal citations omitted)), with id. at 970 (Kagan at 970 (Kagan
and Breyer, JJ., dissenting)and Breyer, JJ., dissenting) (“[T(“[T ]his Court has made clear that the last]his Court has made clear that the last -antecedent rule does not generally apply to the -antecedent rule does not generally apply to the
grammatical construction present here: when ‘[t]he modifying clause appear[s] . . . at the end of a single, integrated grammatical construction present here: when ‘[t]he modifying clause appear[s] . . . at the end of a single, integrated
list.’ list.’ ~~T hen~~Then, the exact opposite is usually, the exact opposite is usually true: . . . the modifying phrase refers alike to each of the list’s terms.” (internal true: . . . the modifying phrase refers alike to each of the list’s terms.” (internal
citation omitted)). citation omitted)).
84 84 Compare Yates v. United States, 574 U.S.Yates v. United States, 574 U.S. 528, 546 (2015) (plurality opinion) (“Having used traditional tools of 528, 546 (2015) (plurality opinion) (“Having used traditional tools of
statutory interpretation to examine markers of congressional intent within the Sarbanes-Oxley Act and §statutory interpretation to examine markers of congressional intent within the Sarbanes-Oxley Act and § 1519 itself, we 1519 itself, we
are persuadedare persuaded ~~that~~ that an aggressive interpretation of ‘tangible object’ must be rejected.”), an aggressive interpretation of ‘tangible object’ must be rejected.”), with id. at 563–64 (Kagan, at 563–64 (Kagan,
Scalia,Scalia, Kennedy, and Kennedy, and ~~T homas~~Thomas, JJ., dissenting), JJ., dissenting) (“ (“Getting nowhere with [the] surplusageGetting nowhere with [the] surplusage [canon], the plurality switches [canon], the plurality switches
canons, hoping thatcanons, hoping that noscitur a sociis and and ejusdem generis will will save it. . . . According to the plurality, those Latin save it. . . . According to the plurality, those Latin
maxims change the English meaning of ‘tangible object’ to only things, like records and documents, ‘usedmaxims change the English meaning of ‘tangible object’ to only things, like records and documents, ‘used to record or to record or
preserve information.’ But understood as this Court alwayspreserve information.’ But understood as this Court always has, the canons have no such transformative effect on the has, the canons have no such transformative effect on the
workaday languageworkaday language Congress chose.” (internal citation omitted)).Congress chose.” (internal citation omitted)).
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The extent to which judges and legal practitioners look to a law’s The extent to which judges and legal practitioners look to a law’s purpose, as , as ~~wel~~ well as the sources as the sources
that courts find most authoritative in ascertaining that purpose, may vary based on the reviewer’s that courts find most authoritative in ascertaining that purpose, may vary based on the reviewer’s
interpretive philosophy.85 For example, “textualists” interpretive philosophy.85 For example, “textualists” ~~general y~~generally eschew looking beyond a law’s eschew looking beyond a law’s
text to interpret its meaning.86 When a dispute about a law’s scope arises, they seek to give the text to interpret its meaning.86 When a dispute about a law’s scope arises, they seek to give the
statute a “fair reading” based on how language and punctuation are statute a “fair reading” based on how language and punctuation are ~~normal y~~normally used—or how used—or how
certain terms were commonly understood when the law was enacted.87 Textualists subscribe to the certain terms were commonly understood when the law was enacted.87 Textualists subscribe to the
frequently quoted passage that when Congress passes a law, Congress “says what it means and frequently quoted passage that when Congress passes a law, Congress “says what it means and
means what it says.”88 In contrast, those who take a more “purposivist” approach to statutory means what it says.”88 In contrast, those who take a more “purposivist” approach to statutory
interpretation may seek to resolve a disputed or ambiguous provision based on statements of interpretation may seek to resolve a disputed or ambiguous provision based on statements of
purpose in the act or even statements made during its passage (i.e., legislative history).89 These purpose in the act or even statements made during its passage (i.e., legislative history).89 These
differing approaches to statutory interpretation,90 which are discussed in more detail in other CRS differing approaches to statutory interpretation,90 which are discussed in more detail in other CRS
publications,91 may affect how closely an agency or court examines certain parts of a publications,91 may affect how closely an agency or court examines certain parts of a ~~bil~~ bill, such as , such as
a general purpose section. a general purpose section.
Parts of a Bill and Their Legal Significance
This part of the report describes common This part of the report describes common ~~bil~~ bill sections and other organizing features of legislation sections and other organizing features of legislation
and explains the legal significance of each component, focusing on relevant Supreme Court and explains the legal significance of each component, focusing on relevant Supreme Court
decisions.92 Not every decisions.92 Not every ~~bil wil include al~~ bill will include all the sections listed below, and some the sections listed below, and some ~~bil s~~bills may present may present
these sections in a different order.93these sections in a different order.93

85 85 Compare Dig. Realty Dig. Realty ~~T r~~Tr., Inc. v. Somers, 138 S. Ct. 767, 782 (2018) (Sotomayor & Breyer,., Inc. v. Somers, 138 S. Ct. 767, 782 (2018) (Sotomayor & Breyer, JJ., concurring) (“I write JJ., concurring) (“I write
separately only to note my disagreement with the suggestion in my colleague’sseparately only to note my disagreement with the suggestion in my colleague’s concurrence that a Senate Report is not concurrence that a Senate Report is not
an appropriate source for this Court to consider when interpreting a statute.”); an appropriate source for this Court to consider when interpreting a statute.”); with id. at 783 ( at 783 (~~T homas~~Thomas, Alito, & , Alito, &
Gorsuch,Gorsuch, JJ., concurring in part and concurring in the judgment) (“JJ., concurring in part and concurring in the judgment) (“ Even assuming a majority of Congress read the Even assuming a majority of Congress read the
Senate Report, agreed with it, and voted for Dodd-Frank with the same intent, ‘we are a government of laws, not of Senate Report, agreed with it, and voted for Dodd-Frank with the same intent, ‘we are a government of laws, not of
men, and are governed by what Congressmen, and are governed by what Congress enacted rather than by what it intended.’” (citation omitted)).enacted rather than by what it intended.’” (citation omitted)).
86 86 See SCALIA & GARNER, SCALIA & GARNER, supra note 4, at 16 (“Textualism, in its purest form, begins note 4, at 16 (“Textualism, in its purest form, begins and ends with what the text says and ends with what the text says
and fairly implies.”); CRSand fairly implies.”); CRS Report R45153, Report R45153, Statutory Interpretation: Theories, Tools, and Trends, , supra note 75, at 13–note 75, at 13–
15. 15.
87 Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018); 87 Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018); see also Bostock v. Clayton Cty., 140 S. Ct. 1731, Bostock v. Clayton Cty., 140 S. Ct. 1731,
1738 (2020) (“1738 (2020) (“ This Court normally interprets a statute in accord with the ordinary public meaning of This Court normally interprets a statute in accord with the ordinary public meaning of ~~it s~~its terms at the terms at the
time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the
President.”); Rehaif v. United States, 139 S.President.”); Rehaif v. United States, 139 S. Ct. 2191, 2196 (2019)Ct. 2191, 2196 (2019) (stating that the Court “(stating that the Court “ normally read[s] the normally read[s] the
statutory term ‘knowingly’ as applying to all the subsequentlystatutory term ‘knowingly’ as applying to all the subsequently listed elements” of a crime as “listed elements” of a crime as “ a matter of ordinary a matter of ordinary
English grammar” (internal quotation marks and citation omitted)).English grammar” (internal quotation marks and citation omitted)).
88 Simmons v. Himmelreich, 136 S.88 Simmons v. Himmelreich, 136 S. Ct. 1843, 1848 (2016). Ct. 1843, 1848 (2016).
89 89 ~~See CRS~~ See CRS Report R45153, Report R45153, Statutory Interpretation: Theories, Tools, and Trends, , supra note 75, at 11–13. note 75, at 11–13.
90 90 But see id. at 16–18 (discussingat 16–18 (discussing a possiblea possible “convergence of theories”).“convergence of theories”).
91 See,91 See, e.g., id. at 10–18; CRSe.g., id. at 10–18; CRS Legal SidebarLegal Sidebar LSB10305, LSB10305, The Feres Doctrine: Congress, the Courts, and Military
~~Servicem em ber~~Servicemember Lawsuits Against the United States, by Kevin M. Lewis;, by Kevin M. Lewis; ~~CRS Legal Sidebar~~ CRS Legal Sidebar LSB10122, LSB10122, No ~~Overtim e~~Overtime
for Auto Service Advisors after Court’s “Fair Reading” of the FLSA, by Jon O. Shimabukuro. , by Jon O. Shimabukuro.
92 92 ~~T he~~The following resources informed the selection and ordering of bill sections in this report: (1) following resources informed the selection and ordering of bill sections in this report: (1) the “[g]eneral template the “[g]eneral template
for structuring content” in the for structuring content” in the HOLC Guide to Legislative Drafting, , supra note 18; (2) note 18; (2) The Legislative Drafter’s Desk
Reference: Second Edition by Lawrence E. Filson and Sandra by Lawrence E. Filson and Sandra L. Strokoff, L. Strokoff, supra note 37, which is cited in the note 37, which is cited in the HOLC
Guide to Legislative Drafting; and (3) legislation introduced in the 112th through the 116th Congresses available on ; and (3) legislation introduced in the 112th through the 116th Congresses available on
Congress.gov. .
93 93 See 1A SUTHERLAND STATUTORY CONSTRUCTION § 20:2 (7th ed. 2019) (listing the “customary order of provisions” 1A SUTHERLAND STATUTORY CONSTRUCTION § 20:2 (7th ed. 2019) (listing the “customary order of provisions”
in “original, comprehensive, legislation”);in “original, comprehensive, legislation”); FILSON & STROKOFF, FILSON & STROKOFF, supra note 37, at 106 (“The order of a bill’s ‘typical’ note 37, at 106 (“The order of a bill’s ‘typical’
provisions recommended by some legislative drafting manualsprovisions recommended by some legislative drafting manuals can be moderately helpful, butcan be moderately helpful, but . . . the organization of a . . . the organization of a
billbill in real life is never quite that straightforward.” (internal cross-reference omitted)).in real life is never quite that straightforward.” (internal cross-reference omitted)).
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Introductory and Organizational Elements of a Bill
A typical A typical ~~bil~~ bill contains many elements to help identify the legislationcontains many elements to help identify the legislation and organize its substantive and organize its substantive
provisions. Some of these provisions, like the enacting clause, are required in every provisions. Some of these provisions, like the enacting clause, are required in every ~~bil~~ bill. Others, . Others,
like short titles and captions, are used at the drafter’s discretion. Such organizational features like short titles and captions, are used at the drafter’s discretion. Such organizational features
~~general y~~ generally do not contain the do not contain the ~~bil ’s legal y~~bill’s legally operative language—that is, they do not, by themselves, operative language—that is, they do not, by themselves,
create legal rights or obligations, prohibit conduct, or impose penalties. Nevertheless, a court or create legal rights or obligations, prohibit conduct, or impose penalties. Nevertheless, a court or
legal practitioner interpreting the statute may look to these contextual elements to resolve an legal practitioner interpreting the statute may look to these contextual elements to resolve an
ambiguous provision that ambiguous provision that is substantive. In the Supreme Court’s words, headings and titles are substantive. In the Supreme Court’s words, headings and titles are
“tools available“tools available for the resolution of a doubt” about a statute’s meaning.94 There are several for the resolution of a doubt” about a statute’s meaning.94 There are several
distinct introductory and organizational elements of a distinct introductory and organizational elements of a ~~bil~~ bill, discussed below. , discussed below.
Preliminary Identifiers
As shown i As shown in Figure 6, a typical a typical ~~bil~~ bill introduced in the House or Senate begins by identifying:introduced in the House or Senate begins by identifying:
 the then-current session of Congress,  the then-current session of Congress,
 the  the ~~bil~~ bill number,95number,95
 the long title of the  the long title of the ~~bil~~ bill,96 ,96
 the house in which the  the house in which the ~~bil~~ bill was introduced, was introduced,
 the date of introduction,  the date of introduction,
 the  the ~~bil~~ bill’s sponsor and any cosponsors, and ’s sponsor and any cosponsors, and
 any congressional committee referrals. any congressional committee referrals.
This information helps to identify and track the legislation.97 If the This information helps to identify and track the legislation.97 If the ~~bil~~ bill progresses through progresses through
committee (i.e., is reported), passes one house of Congress (i.e., is engrossed), or passes both committee (i.e., is reported), passes one house of Congress (i.e., is engrossed), or passes both
houses (i.e., is enrolled), subsequent versions of the houses (i.e., is enrolled), subsequent versions of the ~~bil~~ bill may be updated to reflect the may be updated to reflect the
congressional session, body, and date that corresponds to that action.98 congressional session, body, and date that corresponds to that action.98

94 94 See Almendarez-Almendarez-~~T orres~~Torres v. United States, 523 U.S. v. United States, 523 U.S. 224, 234 (1998) (noting that “the title of a statute and the heading 224, 234 (1998) (noting that “the title of a statute and the heading
of a section’ are ‘tools available for the resolution of a doubtof a section’ are ‘tools available for the resolution of a doubt ’ about the meaning of a statute” (quoting Bd.’ about the meaning of a statute” (quoting Bd. of R.R. of R.R.
~~T rainmen~~Trainmen v. Balt. & Ohio R.R., 331 U.S. v. Balt. & Ohio R.R., 331 U.S. 519, 528519, 528 –29 (1947))); –29 (1947))); Bd. of R.R. ~~Trainm en~~Trainmen, 331 U.S. at 529 (“, 331 U.S. at 529 (“ For For
interpretative purposes, [titles and headings] are of useinterpretative purposes, [titles and headings] are of use only when they shed light ononly when they shed light on some ambiguoussome ambiguous ~~word~~ word or or
phrase. . . . [Tphrase. . . . [T ]hey cannot undo or limit that which the text makes plain.”).]hey cannot undo or limit that which the text makes plain.”).
95 95 ~~T he~~The bill number is “ bill number is “ typically the next number available in sequencetypically the next number available in sequence ~~during~~ during that two-year Congress.” CRSthat two-year Congress.” CRS Report Report
R42843, R42843, Introduction to the Legislative Process in the U.S. Congress, , supra note 6, at 3. note 6, at 3.
96 96 See infra “~~T he Long T itle~~.”The Long Title.”
97 97 See, e.g., CONGRESS.GOV, https://www.congress.gov/ (last , CONGRESS.GOV, https://www.congress.gov/ (last ~~accessed July 28, 2020~~visited Sept. 27, 2021) (allowing viewers) (allowing viewers to search for to search for
legislation by session of Congress,legislation by session of Congress, ~~bill~~ bill number, sponsor, and committee). number, sponsor, and committee).
98 98 See, e.g., Correcting Miscalculations in Veterans’ Pensions Act, H.R. 4431, 115th Cong., , Correcting Miscalculations in Veterans’ Pensions Act, H.R. 4431, 115th Cong.,
https://www.congress.gov/bill/115th-congress/house-bill/4431/texthttps://www.congress.gov/bill/115th-congress/house-bill/4431/text (allowing viewers(allowing viewers to access 6 versions of the bill: to access 6 versions of the bill:
the bill text as introduced, as reported in the House, as engrossedthe bill text as introduced, as reported in the House, as engrossed in the House, asin the House, as referred in the Senate, as enrolled, referred in the Senate, as enrolled,
and finally, as a publicand finally, as a public law).law). See generally Gov’t Pub. Off., Gov’t Pub. Off., Congressional Bills, 103rd Congress (1993 -1994) to
Present: About Congressional Bills, GOVINFO (May 7, 2019), https://www.govinfo.gov/help/bills#about, GOVINFO (May 7, 2019), https://www.govinfo.gov/help/bills#about . .
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Figure 6. Bill Identifiers

Source: Notification of Your Eldercare Rights Act, H.R. 5577, 115th Cong. (as introducedNotification of Your Eldercare Rights Act, H.R. 5577, 115th Cong. (as introduced , Apr. 19, 2018), , Apr. 19, 2018),
https://www.congress.gov/115/bil s/hr5577/BILLS-115hr5577ih.pdf. https://www.congress.gov/115/bil s/hr5577/BILLS-115hr5577ih.pdf.
The Long Title
The official or “long” title of a The official or “long” title of a ~~bil~~ bill appears after the appears after the ~~bil~~ bill number and also immediately following number and also immediately following
the prefatory words “A BILL” as shown the prefatory words “A BILL” as shown inin Figure 7. The long title The long title ~~general y~~generally summarizes or summarizes or
describes the purpose of the describes the purpose of the ~~bil~~ bill. However, as veteran legislative. However, as veteran legislative drafters have noted, drafters have noted,
“parliamentary maneuvering sometimes results in “parliamentary maneuvering sometimes results in ~~bil s~~bills whose long titles bear little or no whose long titles bear little or no
relationship to the substantive provisions they contain.”99 In other circumstances, a long title may relationship to the substantive provisions they contain.”99 In other circumstances, a long title may
reflect a “broad policy objective” rather than a detailed description of what the law does.100 reflect a “broad policy objective” rather than a detailed description of what the law does.100

99 FILSON & STROKOFF, 99 FILSON & STROKOFF, supra note 37, at 119. note 37, at 119.
100 100 Id. at 138 n.2. at 138 n.2.
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Figure 7. Long Title

Source: Keeping Guns from High-Risk Individuals Act, H.R. 5163, 115th Cong. (as introduced, Mar. 5, 2018), Keeping Guns from High-Risk Individuals Act, H.R. 5163, 115th Cong. (as introduced, Mar. 5, 2018),
https://www.congress.gov/115/bil s/hr5163/BILLS-115hr5163ih.pdf. https://www.congress.gov/115/bil s/hr5163/BILLS-115hr5163ih.pdf.
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Courts Courts ~~general y~~generally assign little weight to a federal law’s long title in interpreting a disputed assign little weight to a federal law’s long title in interpreting a disputed
provision.101 One reason may be that the long title appears before the enacting clause (discussed provision.101 One reason may be that the long title appears before the enacting clause (discussed
in the next section) and thus does not become part of the law even if the in the next section) and thus does not become part of the law even if the ~~bil~~ bill is enacted.102 Another is enacted.102 Another
reason may be that the long title, being only a single sentence, cannot exhaustively describe what reason may be that the long title, being only a single sentence, cannot exhaustively describe what
the law does.103 Nevertheless, when a party’s interpretation of an act runs headlong into a conflict the law does.103 Nevertheless, when a party’s interpretation of an act runs headlong into a conflict
with a long title, a court may cite the long title as evidence of a contrary interpretation. For with a long title, a court may cite the long title as evidence of a contrary interpretation. For
example, in example, in Jackson Women’s Health Organization v. Currier, a federal district court rejected a , a federal district court rejected a
state’s characterization of its own law based on the law’s long title.104 The court analyzed the state’s characterization of its own law based on the law’s long title.104 The court analyzed the
state law as a state law as a ban on, rather than a on, rather than a regulation of, pre-viability abortion because the act’s full title of, pre-viability abortion because the act’s full title
included the language “To included the language “To Prohibit Abortions After 15 Weeks’ Gestation.”105 Abortions After 15 Weeks’ Gestation.”105
The Enacting Clause
Each Each ~~bil~~ bill contains the enacting clause, “Be it enacted by the Senate and House of Representatives contains the enacting clause, “Be it enacted by the Senate and House of Representatives
of the United States of America in Congress assembled,” shown iof the United States of America in Congress assembled,” shown in Figure 8. The language and . The language and
placement of the enacting clause are prescribed by statute.106placement of the enacting clause are prescribed by statute.106
Figure 8. Enacting Clause

Source: Keeping Guns from High-Risk Individuals Act, H.R. 5163, 115th Cong. (as introduced, Mar. 5, 2018), Keeping Guns from High-Risk Individuals Act, H.R. 5163, 115th Cong. (as introduced, Mar. 5, 2018),
https://www.congress.gov/115/bil s/hr5163/BILLS-115hr5163ih.pdf. https://www.congress.gov/115/bil s/hr5163/BILLS-115hr5163ih.pdf.

101 101 See, e.g., Beaver v. , Beaver v. ~~T arsadia~~Tarsadia Hotels, 816 F.3d 1170, 1187 (9th Cir. 2016) (“Defendants’ heavy reliance on the title Hotels, 816 F.3d 1170, 1187 (9th Cir. 2016) (“Defendants’ heavy reliance on the title
of the 2014 Amendment, ‘An act to amend the Interstate Land Salesof the 2014 Amendment, ‘An act to amend the Interstate Land Sales ~~Full~~ Full Disclosure Act to clarify how the Act applies Disclosure Act to clarify how the Act applies
to condominiums,’ is similarly misplaced. Although the title notes that this is a clarification, the lapse between the to condominiums,’ is similarly misplaced. Although the title notes that this is a clarification, the lapse between the
enactment of the bill and the bill’s effective date (180 days), coupledenactment of the bill and the bill’s effective date (180 days), coupled with the bill’s silence on the issuewith the bill’s silence on the issue of retroactivity, of retroactivity,
suggestssuggests that this was actually a change in the law.”). that this was actually a change in the law.”).
102 102 See FILSON & STROKOFF, FILSON & STROKOFF, supra note 37, at 120. note 37, at 120.
103 103 See supra notes 99–100 and accompanying text. notes 99–100 and accompanying text.
104 349 F. Supp.104 349 F. Supp. 3d 536, 541 (S.D. Miss. 2018), 3d 536, 541 (S.D. Miss. 2018), aff’d sub. nom. Jackson Women’s Health Org. v. Dobbs, Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265, 945 F.3d 265,
277 (2019), 277 (2019), ~~petition for cert. filed~~cert. granted, No. 19-1392 (, No. 19-1392 (~~Jun. 15, 2020~~May 17, 2021). ).
105 105 Id. (internal quotation marks omitted). (internal quotation marks omitted).
106 106 See 1 U.S.C.1 U.S.C. § 101 (“§ 101 (“ ~~T he~~The enacting clause of all Acts of Congress shall be enacting clause of all Acts of Congress shall be in the followingin the following form: ‘Be it enacted by form: ‘Be it enacted by
the Senate and Housethe Senate and House of Representatives of the United States of America in Congressof Representatives of the United States of America in Congress assembled.’”);assembled.’”); id. §§ 103 103
(prohibiting “enacting or resolving words”(prohibiting “enacting or resolving words” after the first section of the bill). after the first section of the bill).
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The enacting clause introduces the text that The enacting clause introduces the text that ~~wil~~ will become law and serves to identify the document become law and serves to identify the document
as an act of Congress.107 As a practical matter, it also signals to readers that the form of the as an act of Congress.107 As a practical matter, it also signals to readers that the form of the
legislationlegislation is a is a ~~bil~~ bill rather than a joint resolution, which contains a “resolving clause.”108 While the rather than a joint resolution, which contains a “resolving clause.”108 While the
clause is standard prefatory language, a few federal courts have posited that its absence would not clause is standard prefatory language, a few federal courts have posited that its absence would not
necessarily render a statute invalid, because the U.S. Constitution does not require an enacting necessarily render a statute invalid, because the U.S. Constitution does not require an enacting
clause.109clause.109
Short Titles
Congressional drafters often include short titles for their Congressional drafters often include short titles for their ~~bil s~~bills, as in the example , as in the example inin Figure 9. If If
the the ~~bil~~ bill is enacted, OLRC may assign the specified short title to a section in the is enacted, OLRC may assign the specified short title to a section in the U.S. Code110 or 110 or
place itplace it in the statutory notes following the text of a in the statutory notes following the text of a Code section.111 section.111
Figure 9. Short Title

Source: FairnessFairness to Teaching Hospitals Act of 2016, H.R. 6515, 114th Cong. (as introduced, Dec.to Teaching Hospitals Act of 2016, H.R. 6515, 114th Cong. (as introduced, Dec. 8, 2016), 8, 2016),
https://www.congress.gov/114/bil s/hr6515/BILLS-114hr6515ih.pdf. https://www.congress.gov/114/bil s/hr6515/BILLS-114hr6515ih.pdf.

107 107 See Enacting Clause, BLACK’S LAW DICTIONARY (11th ed. 2019); , BLACK’S LAW DICTIONARY (11th ed. 2019); cf. Joiner v. State, 155 S.E.2dJoiner v. State, 155 S.E.2d 8, 10 (Ga. 1967) 8, 10 (Ga. 1967)
~~(“T he~~(“The purpose of an enacting clause is to establish the act; to give it permanence, uniformity and certainty; to afford purpose of an enacting clause is to establish the act; to give it permanence, uniformity and certainty; to afford
evidence of its legislative, statutory nature, and to secure uniformity of identification, and thus prevent evidence of its legislative, statutory nature, and to secure uniformity of identification, and thus prevent ~~ina dvertence~~inadvertence, ,
possiblepossible mistake, and fraud.”mistake, and fraud.” (internal quotation marks omitted) (quoting 82 C.J.S.(internal quotation marks omitted) (quoting 82 C.J.S. 104, § 65 (c104, § 65 (c 2))). 2))).
108 108 See 1 U.S.C.1 U.S.C. § 102 (prescribing a “resolving clause” for “all joint resolutions”). § 102 (prescribing a “resolving clause” for “all joint resolutions”).
109 109 See White v. United States, 175 F. App’x 292, 294 (11th Cir. 2006) (per curiam) (observing that the “Constitution White v. United States, 175 F. App’x 292, 294 (11th Cir. 2006) (per curiam) (observing that the “Constitution
does not require that federal lawsdoes not require that federal laws contain an enacting clause”);contain an enacting clause”); United States v. Laroche, 170 F. App’x 124, 126 (11th United States v. Laroche, 170 F. App’x 124, 126 (11th
Cir. 2006) (per curiam) (stating that “Cir. 2006) (per curiam) (stating that “ [t]here is no federal authority to support [the petitioner’s] argument that a lack of [t]here is no federal authority to support [the petitioner’s] argument that a lack of
an enacting clausean enacting clause renders a statute invalid”). renders a statute invalid”). But cf. Joiner, 155 S.E.2d, 155 S.E.2d at 10 (holding thatat 10 (holding that a state legislative act wasa state legislative act was “ “a a
nullity and of no force and effect as law”nullity and of no force and effect as law” ~~because~~ because it didit did not contain an enacting clause and rejecting the viewnot contain an enacting clause and rejecting the view that an that an
enacting clauseenacting clause “ “is a mere matter of form, a relic of antiquity, and serves no usefulis a mere matter of form, a relic of antiquity, and serves no useful purpose”).purpose”).
110 110 See, e.g., 15 U.S.C., 15 U.S.C. § § 78a (stating that the Act of June 6, 1934, Pub. L. No. 7378a (stating that the Act of June 6, 1934, Pub. L. No. 73 -291, ch. 404, 48 Stat. 881, may be -291, ch. 404, 48 Stat. 881, may be
cited as the “cited as the “ Securities Exchange Act of 1934”). Securities Exchange Act of 1934”).
111 For example, the short title “Employee Retirement Income Security Act of 1974” (more commonly known as 111 For example, the short title “Employee Retirement Income Security Act of 1974” (more commonly known as
ERISA)ERISA) is indicated in the statutory notes following 29 U.S.C.is indicated in the statutory notes following 29 U.S.C. § 1001, the section containing the congressional § 1001, the section containing the congressional
findingsfindings and declaration of policy within the chapter on the Employee Retirement Income Security Program. and declaration of policy within the chapter on the Employee Retirement Income Security Program.
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Unlike Unlike ~~a bil~~ a bill’s long title, a designated short title ’s long title, a designated short title does become part of the law. However, like a become part of the law. However, like a
long title, a short title is unlikelylong title, a short title is unlikely to describe to describe al all of the of the ~~bil~~ bill’s purposes. Drafters often select words ’s purposes. Drafters often select words
that describe a general purpose or that form an acronym. In a 2008 decision, Justice Antonin that describe a general purpose or that form an acronym. In a 2008 decision, Justice Antonin
Scalia Scalia ~~al uded~~alluded to Congress’s penchant for acronyms, referring to a law with “the unlikely title of to Congress’s penchant for acronyms, referring to a law with “the unlikely title of
the Prosecutorial Remedies and Other Tools to end the Exploitationthe Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of of Children Today Act of
2003, 117 Stat. 650.”112 Although Congress had supplied the acronym “PROTECT Act” in the 2003, 117 Stat. 650.”112 Although Congress had supplied the acronym “PROTECT Act” in the
statute itself, Justice Scalia quipped, “We statute itself, Justice Scalia quipped, “We ~~shal~~ shall refer to it as the Act.”113refer to it as the Act.”113
Given that Congress includes short titles for ease of reference or effect, a short title is unlikely to Given that Congress includes short titles for ease of reference or effect, a short title is unlikely to
supply the answer to a disputed issue of statutory interpretation. supply the answer to a disputed issue of statutory interpretation. ~~Occasional y~~Occasionally, however, a short , however, a short
title supports the interpretation the court has arrived at independently through an examination of title supports the interpretation the court has arrived at independently through an examination of
the text. For example, in a 2009 decision, the Idaho Supreme Court held that a state statute the text. For example, in a 2009 decision, the Idaho Supreme Court held that a state statute
“create[d] a new cause of action” rather than “simply codify[ing] the common law.”114 In a “create[d] a new cause of action” rather than “simply codify[ing] the common law.”114 In a
footnote, the state supreme court suggested that the law’s short title supported its reading because footnote, the state supreme court suggested that the law’s short title supported its reading because
it included the language “to it included the language “to create a civil cause of action in child abuse cases.”115 a civil cause of action in child abuse cases.”115
Headings and Subheadings
Congressional drafters may assign headings or subheadings (also Congressional drafters may assign headings or subheadings (also ~~cal ed~~called “captions”) to particular “captions”) to particular
divisions of a divisions of a ~~bil~~ bill. I. In Figure 10, ~~section~~ section 2 of the 2 of the ~~bil~~ bill is entitled “Disclosure of Personal is entitled “Disclosure of Personal
Information with the Intent to Cause Harm.” The new offense that the Information with the Intent to Cause Harm.” The new offense that the ~~bil~~ bill would add to would add to
chapter 41 of title 18 of the chapter 41 of title 18 of the U.S. Code is separately entitled is separately entitled “Publication of “Publication of ~~personal y~~personally identifiable identifiable
information with the intent to cause harm.”116 Subsection (a) has the caption “Prohibition.” information with the intent to cause harm.”116 Subsection (a) has the caption “Prohibition.”

112 United States v. Williams, 553 U.S.112 United States v. Williams, 553 U.S. 285, 289 (2008). 285, 289 (2008).
113 113 Id.
114 Doe v. Boy Scouts114 Doe v. Boy Scouts of America, 224 P.3d 494, 498 (Idaho 2009). of America, 224 P.3d 494, 498 (Idaho 2009).
115 115 Id. at 498 n.3 (internal quotation marks omitted) (emphasis added). at 498 n.3 (internal quotation marks omitted) (emphasis added).
116 Because116 Because the heading assignedthe heading assigned to § 881 is “inside the quotes,” this heading wouldto § 881 is “inside the quotes,” this heading would likely become the section heading likely become the section heading
in the in the U.S. Code if the bill were if the bill were enacted. enacted. See Detailed Guide to the U.S. Code, , supra note 50 (noting that the “note 50 (noting that the “ basic basic
unit of every Codeunit of every Code title is the section,” that in positive law titles, title is the section,” that in positive law titles, Code sections have “ sections have “ the exact same text as in the the exact same text as in the
enacting and amending acts,” and that even in non-positive law titles, if a enacting and amending acts,” and that even in non-positive law titles, if a Code section “is based section “is based on an act section that on an act section that
has headings, the Codehas headings, the Code ~~will usually~~ will usually retain the original headings”). retain the original headings”).
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Figure 10. Section Headings

Source: Interstate Doxxing Prevention Act, H.R. 6478, 114th Cong. § 2 (as introduced, Dec.Interstate Doxxing Prevention Act, H.R. 6478, 114th Cong. § 2 (as introduced, Dec. 8, 2016), 8, 2016),
https://www.congress.gov/114/bil s/hr6478/BILLS-114hr6478ih.pdf. https://www.congress.gov/114/bil s/hr6478/BILLS-114hr6478ih.pdf.
Once a Once a ~~bil~~ bill is enacted, headings and subheadings operate in the same way as titles: while is enacted, headings and subheadings operate in the same way as titles: while
headings cannot alter the meaning of clear statutory text,117 they can sometimes point in favor of headings cannot alter the meaning of clear statutory text,117 they can sometimes point in favor of
one interpretation of an ambiguous provision over another plausible interpretation.118 For one interpretation of an ambiguous provision over another plausible interpretation.118 For
example, in 2016, the Supreme Court interpreted a “recidivist enhancement” in section 2252 of example, in 2016, the Supreme Court interpreted a “recidivist enhancement” in section 2252 of
the Federal Criminal Code that raised penalties for individuals convicted of possessing child the Federal Criminal Code that raised penalties for individuals convicted of possessing child
pornography who had “‘a prior conviction . . . under the laws of any State relating to aggravated pornography who had “‘a prior conviction . . . under the laws of any State relating to aggravated

117 117 See United States v. Michael, 882 F.3d 624, 629 (6th Cir. 2018) (focusing on a section’s text instead of its heading United States v. Michael, 882 F.3d 624, 629 (6th Cir. 2018) (focusing on a section’s text instead of its heading
and stating that “[j]ust as it is dangerousand stating that “[j]ust as it is dangerous to judgeto judge a book by its cover, it is dangerousa book by its cover, it is dangerous to judgeto judge a statute by its title”). a statute by its title”).
118 118 See, e.g., Fla. Dep’t of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 47 (2008) (concluding that a certain , Fla. Dep’t of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 47 (2008) (concluding that a certain
section of the Bankruptcy Code didsection of the Bankruptcy Code did not applynot apply to “to “ preconfirmation transfers,” finding it “preconfirmation transfers,” finding it “ informative that Congress informative that Congress
placed [that section] in a subchapter placed [that section] in a subchapter ~~entit led, ‘POST CONFIRMAT ION MAT T ERS~~entitled, ‘POSTCONFIRMATION MATTERS’”). ’”).
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sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.’”119 A key sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.’”119 A key
contested issue in the case was whether the language “involving a minor or ward” modified: contested issue in the case was whether the language “involving a minor or ward” modified:
(1) “aggravated sexual abuse,” “sexual abuse,” (1) “aggravated sexual abuse,” “sexual abuse,” and “abusive sexual conduct”; or (2) only the last “abusive sexual conduct”; or (2) only the last
reference to “abusive sexual conduct.”120 While the traditional canons of statutory interpretation reference to “abusive sexual conduct.”120 While the traditional canons of statutory interpretation
produced conflicting interpretations, a majority of the Court concluded that the language produced conflicting interpretations, a majority of the Court concluded that the language
“involving a minor or ward” modified only “abusive sexual conduct.”121 The Court reasoned that “involving a minor or ward” modified only “abusive sexual conduct.”121 The Court reasoned that
the phrase “abusive sexual conduct involving a minor or ward,” while referring to state law, the phrase “abusive sexual conduct involving a minor or ward,” while referring to state law,
tracked the language of a federal offense that also triggered enhanced penalties under tracked the language of a federal offense that also triggered enhanced penalties under
section 2252. The Court explained: section 2252. The Court explained:
Among the chapters of the Federal Criminal Code that can trigger § Among the chapters of the Federal Criminal Code that can trigger § 2252(b)(2)’s recidivist 2252(b)(2)’s recidivist
enhancement are crimes “under . . . chapter 109A.” Chapter 109A criminalizes a range of enhancement are crimes “under . . . chapter 109A.” Chapter 109A criminalizes a range of
sexual-abuse offenses involving adults sexual-abuse offenses involving adults or minors and wards. And it places those federal minors and wards. And it places those federal
sexual-abusesexual-abuse ~~crimes under headings that use language nearly identical to the~~ crimes under headings that use language nearly identical to the language language
§ 2252(b)(2)§ 2252(b)(2) uses to enumerate the three categories of state sexual-abuse predicates. The uses to enumerate the three categories of state sexual-abuse predicates. The
first section in Chapter 109A is titled “Aggravated sexual abuse.” 18 U.S.C. § 2241.first section in Chapter 109A is titled “Aggravated sexual abuse.” 18 U.S.C. § 2241. The The
second is titled “Sexual abuse.” § 2242. And the third is titled “Sexual abuse of a minor or second is titled “Sexual abuse.” § 2242. And the third is titled “Sexual abuse of a minor or
ward.” § 2243. Applying the rule of the last antecedent, those sections mirror precisely the ward.” § 2243. Applying the rule of the last antecedent, those sections mirror precisely the
order,order, ~~precisely the divisions, and nearly precisely the words used to describe the three~~
~~state sexual-abuse predicate crimes in § 2252(b)(2): “aggravated sexual abuse,” “sexual~~
precisely the divisions, and nearly precisely the words used to describe the three state sexual-abuse predicate crimes in § 2252(b)(2): “aggravated sexual abuse,” “sexual abuse,” and “abusive sexual conduct involving a minor or ward.”122 abuse,” and “abusive sexual conduct involving a minor or ward.”122
While the Court cautioned that it could not “state with certainty that Congress used Chapter 109A While the Court cautioned that it could not “state with certainty that Congress used Chapter 109A
as a template for the list of state predicates set out in § 2252(b)(2),” it concluded that it could not as a template for the list of state predicates set out in § 2252(b)(2),” it concluded that it could not
“ignore the “ignore the ~~paral el~~parallel, particularly because the headings in Chapter 109A were in place when , particularly because the headings in Chapter 109A were in place when
Congress amended the statute to add § 2252(b)(2)’s state sexual-abuse predicates.”123 Congress amended the statute to add § 2252(b)(2)’s state sexual-abuse predicates.”123
Prefatory Statements
Congressional drafters sometimes introduce a Congressional drafters sometimes introduce a ~~bil~~ bill’s substantive provisions with prefatory ’s substantive provisions with prefatory
statements explaining the need for or the purpose of the legislation. These introductory statements statements explaining the need for or the purpose of the legislation. These introductory statements
may take the form of preambles, sense of Congress provisions, declarations of policy, statements may take the form of preambles, sense of Congress provisions, declarations of policy, statements
of purpose, or congressional findings. After enactment, courts may use these statements to resolve of purpose, or congressional findings. After enactment, courts may use these statements to resolve
ambiguities in the statutory text or to ascertain Congress’s purpose in enacting the law.124 ambiguities in the statutory text or to ascertain Congress’s purpose in enacting the law.124 ~~But, as~~
~~previously noted~~However, because these statements tend to describe the legislation’s general purposes, , because these statements tend to describe the legislation’s general purposes,

they may 119 119 See Lockhart v. United States, 136 S. Ct. 958, 961, 964 (2016) (quoting 18 U.S.C. §Lockhart v. United States, 136 S. Ct. 958, 961, 964 (2016) (quoting 18 U.S.C. § 2252(b)(2)). 2252(b)(2)).
120 120 Id. at 961. at 961.
121 121 Id. at 964. at 964.
122 122 Id. (footnote omitted). (footnote omitted). Cf. id. at 969 (Kagan, J., dissenting)at 969 (Kagan, J., dissenting) ~~(“T he~~ (“The Court today, relying on what is called Court today, relying on what is called the ‘rule of the ‘rule of
the last antecedent,’ reads the phrase ‘involving a minor or ward’the last antecedent,’ reads the phrase ‘involving a minor or ward’ as modifying only the final term in that threeas modifying only the final term in that three -item -item
list. But properly read, the modifier applies to each of the terms . . . . list. But properly read, the modifier applies to each of the terms . . . . ~~T hat~~That normal construction finds support in normal construction finds support in
uncommonly clear-cut legislative history, which states in so many wordsuncommonly clear-cut legislative history, which states in so many words that the three predicate crimes all involve that the three predicate crimes all involve
abuseabuse of children. And if any doubt remained, the rule of lenity wouldof children. And if any doubt remained, the rule of lenity would command the same resultcommand the same result . . . .”). . . . .”).
123 123 Id. at 964 (majority opinion). at 964 (majority opinion).
124 124 See, e.g.,, Carter v. Carter Coal Co., 298 U.S. 238, 290, 307 (1936) (citing the preamble of a 1935 statute in support Carter v. Carter Coal Co., 298 U.S. 238, 290, 307 (1936) (citing the preamble of a 1935 statute in support
of the Court’s holding that Congress wasof the Court’s holding that Congress was not acting within its enumerated Commerce Clausenot acting within its enumerated Commerce Clause power). power). Cf. District of District of
ColumbiaColumbia v. Heller, 554 U.S.v. Heller, 554 U.S. 570,577 (2008) (noting that a “570,577 (2008) (noting that a “ prefatory clause” in a constitutional provision may prefatory clause” in a constitutional provision may
“resolve an ambiguity in the operative clause”). “resolve an ambiguity in the operative clause”).
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~~they may~~ not be persuasive evidence of another provision’s meaning to a textualist judge who not be persuasive evidence of another provision’s meaning to a textualist judge who
prefers to rely exclusively on the language of that provision.125 prefers to rely exclusively on the language of that provision.125
Preambles
Preambles may take the form of a series of “whereas” clauses or a stand-alone paragraph at the Preambles may take the form of a series of “whereas” clauses or a stand-alone paragraph at the
beginning of a beginning of a ~~bil~~ bill declaring Congress’s findings or goals for the legislation.126 Whereas clauses declaring Congress’s findings or goals for the legislation.126 Whereas clauses
may appear in may appear in joint resolutions before the resolving clause (e.g before the resolving clause (e.g.., Figure 11), but are used less ), but are used less
frequently in modern frequently in modern bill drafting.127 Sometimes, courts also refer to the descriptive portion of a drafting.127 Sometimes, courts also refer to the descriptive portion of a
~~bil~~ bill’s long title, or a ’s long title, or a ~~bil~~ bill’s findings and purposes section (discussed ’s findings and purposes section (discussed infra), as a preamble.128), as a preamble.128

125 125 See supra “~~T he~~The Role of Statutory Interpretation.”.”
126 126 See Preamble, BLACK’S LAW DICTIONARY (11th ed. 2019) (noting that a preamble “often consists of a series of , BLACK’S LAW DICTIONARY (11th ed. 2019) (noting that a preamble “often consists of a series of
clausesclauses introduced by the conjunction introduced by the conjunction whereas,” and that “,” and that “ [s]uch a preamble is sometimes called[s]uch a preamble is sometimes called the the whereas
clauses”). ”). See also, e.g., Bituminous Coal, Bituminous Coal Conservation Act of 1935, Pub. L. No. 74Conservation Act of 1935, Pub. L. No. 74 -402, ch. 824, 49 Stat. 991, -402, ch. 824, 49 Stat. 991,
https://www.loc.gov/law/help/statutes-at-large/74th-congress/session-1/c74s1ch824.pdf. https://www.loc.gov/law/help/statutes-at-large/74th-congress/session-1/c74s1ch824.pdf.
127 Based127 Based on a search of CONGRESS.GOV for bill text containing the word “whereas,” less than ten bills from the 112th to on a search of CONGRESS.GOV for bill text containing the word “whereas,” less than ten bills from the 112th to
the 116th Congress contained prefatory whereas clauses. Four related billsthe 116th Congress contained prefatory whereas clauses. Four related bills ~~would~~ would have amended an existing preamble. have amended an existing preamble.
E.g., Lumbee Recognition Act, H.R. 184, 114th Cong. § 2 (as introduced, Jan. 7, 2015), , Lumbee Recognition Act, H.R. 184, 114th Cong. § 2 (as introduced, Jan. 7, 2015),
https://www.congress.gov/114/bills/hr184/BILLS-114hr184ih.pdf. Most of the remaining whereas statements were https://www.congress.gov/114/bills/hr184/BILLS-114hr184ih.pdf. Most of the remaining whereas statements were
~~included~~ included in a “Findings” or “Sense of Congress” section rather than a stand-alone preamble. in a “Findings” or “Sense of Congress” section rather than a stand-alone preamble. See, e.g.,, Black History is Black History is
American History ActAmerican History Act , H.R. 6902, 116th Cong. § 2 (introduced May 15, 2020), , H.R. 6902, 116th Cong. § 2 (introduced May 15, 2020),
https://www.congress.gov/116/bills/hr6902/BILLS-116hr6902ih.pdf. https://www.congress.gov/116/bills/hr6902/BILLS-116hr6902ih.pdf.
128 128 See, e.g., Cyan, Inc. v. Beaver Cnty. Empls. Ret. Fund,, Cyan, Inc. v. Beaver Cnty. Empls. Ret. Fund, 138 S.138 S. Ct. 1061, 1064 (2018) (noting that the “preamble” to Ct. 1061, 1064 (2018) (noting that the “preamble” to
the Securitiesthe Securities Litigation Uniform Standards Act of 1998 “states that the statute is designedLitigation Uniform Standards Act of 1998 “states that the statute is designed ‘to limit the conduct of ‘to limit the conduct of
securities classsecurities class actions under State law,actions under State law, and for other purposes.’” (quoting Pub.and for other purposes.’” (quoting Pub. L. No. 105L. No. 105 -353, 112 Stat. 3227 -353, 112 Stat. 3227
(1998))); (1998))); ~~T ennessee~~Tennessee v. Lane, 541 U.S. 509, 516 (2004) (referring to the findings and purposes section of the Americans v. Lane, 541 U.S. 509, 516 (2004) (referring to the findings and purposes section of the Americans
with Disabilitieswith Disabilities Act of 1990, 42 U.S.C. §Act of 1990, 42 U.S.C. § 12101, as the statute’s “12101, as the statute’s “ preamble”).preamble”).
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Figure 11. Preamble

Source: S.J. Res. 49, 115th Cong. (2017) (as enrol ed), https://www.congress.gov/115/bil s/sjres49/BILLS-115S.J. Res. 49, 115th Cong. (2017) (as enrol ed), https://www.congress.gov/115/bil s/sjres49/BILLS-115
sjres49enr.pdf. sjres49enr.pdf.
Preambles Preambles ~~typical y~~typically express nonbinding legislative express nonbinding legislative findings and “value judgments.”129 As such, findings and “value judgments.”129 As such,
they do not include “the operative words of the law”—that is, they do not, by themselves, create they do not include “the operative words of the law”—that is, they do not, by themselves, create

129 129 Cf. Webster v. Reprod. Health Servs.,Webster v. Reprod. Health Servs., 492 U.S. 490, 504, 506 (1989) (reasoning that a state abortion statute’s 492 U.S. 490, 504, 506 (1989) (reasoning that a state abortion statute’s
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legal rights or duties.130 For example, in legal rights or duties.130 For example, in Hawaii v. Office of Hawaiian Affairs, the Supreme Court , the Supreme Court
considered the legal effect of a 1993 congressional joint resolution “to acknowledge the historic considered the legal effect of a 1993 congressional joint resolution “to acknowledge the historic
significance of the significance of the ~~il egal~~ illegal overthrow of the Kingdom of overthrow of the Kingdom of ~~Hawai~~ Hawaii, to express its deep regret to the , to express its deep regret to the
Native Native ~~Hawai an~~Hawaiian people, and to support the reconciliation efforts of the State of people, and to support the reconciliation efforts of the State of ~~Hawai~~ Hawaii and the and the
United Church of Christ with Native United Church of Christ with Native ~~Hawai ans~~Hawaiians”—which the Court referred to as the “Apology ”—which the Court referred to as the “Apology
Resolution.”131 The case involved a dispute over a parcel of land in Maui that Resolution.”131 The case involved a dispute over a parcel of land in Maui that ~~Hawai~~ Hawaii ceded to the ceded to the
United States following the United States’s overthrow of the United States following the United States’s overthrow of the ~~Hawai an~~Hawaiian monarchy in 1893.132 monarchy in 1893.132
Upon Upon ~~Hawai~~ Hawaii’s admission as a state in 1959, the federal government transferred title to the ceded ’s admission as a state in 1959, the federal government transferred title to the ceded
lands back to lands back to ~~Hawai~~ Hawaii to be “held by [the] State as a public trust.”133 to be “held by [the] State as a public trust.”133 ~~Hawai~~ Hawaii state law state law
“authorize[d] the State to use or “authorize[d] the State to use or ~~sel~~ sell the ceded lands, provided that the proceeds [were] held in the ceded lands, provided that the proceeds [were] held in
trust for the benefit of the citizens of trust for the benefit of the citizens of ~~Hawai~~ Hawaii.”134 Relying on the Apology Resolution, the Office .”134 Relying on the Apology Resolution, the Office
~~of Hawai an~~of Hawaiian Affairs sued in state court to prevent Affairs sued in state court to prevent ~~Hawai from sel ing~~Hawaii from selling the disputed tract to a state the disputed tract to a state
agency for redevelopment.135 The agency for redevelopment.135 The ~~Hawai~~ Hawaii Supreme Court enjoined the sale, citing a series of Supreme Court enjoined the sale, citing a series of
“whereas clauses” in the Apology Resolution that, in the court’s view, showed that “Congress has “whereas clauses” in the Apology Resolution that, in the court’s view, showed that “Congress has
clearly recognized that the native clearly recognized that the native ~~Hawai an~~Hawaiian people have unrelinquished claims over the ceded people have unrelinquished claims over the ceded
lands.”136 On review, the U.S. Supreme Court described the whereas clauses as “preambular” lands.”136 On review, the U.S. Supreme Court described the whereas clauses as “preambular”
clauses in which “Congress made various observations about clauses in which “Congress made various observations about ~~Hawai~~ Hawaii’s history,” such as the ’s history,” such as the
statement that “‘the indigenous statement that “‘the indigenous ~~Hawai an~~Hawaiian people never directly relinquished their claims . . . over people never directly relinquished their claims . . . over
their national lands to the United States.’”137 The Supreme Court concluded that the state supreme their national lands to the United States.’”137 The Supreme Court concluded that the state supreme
court’s reliance on the whereas clauses, rather than the two “substantive” provisions in the court’s reliance on the whereas clauses, rather than the two “substantive” provisions in the
resolution, was misplaced.138 The Court explained that whereas clauses were not “designed” to resolution, was misplaced.138 The Court explained that whereas clauses were not “designed” to
have “operative effect,” and that even if they “had some legal effect,” they could not silently have “operative effect,” and that even if they “had some legal effect,” they could not silently
“restructur[e] the rights and obligations of the State” because repeals by implication are “restructur[e] the rights and obligations of the State” because repeals by implication are
disfavored.139 disfavored.139

preamble stating that “‘[t]he life of each human beingpreamble stating that “‘[t]he life of each human being ~~begins~~ begins at conception,’ and that ‘[u]nborn children have at conception,’ and that ‘[u]nborn children have
protectable interests in life, health, and well-being’”protectable interests in life, health, and well-being’” ~~did~~ did not “not “ by its terms regulate abortion” and merely expressed the by its terms regulate abortion” and merely expressed the
state’s “value judgment favoring childbirth over abortion,” but leaving “the extent to which the preamble’s language state’s “value judgment favoring childbirth over abortion,” but leaving “the extent to which the preamble’s language
might be usedmight be used to interpret other state statutes or regulations” to the state courts to decide in the first instance (internal to interpret other state statutes or regulations” to the state courts to decide in the first instance (internal
quotation marks and citations omitted)). quotation marks and citations omitted)).
130 Hawaii 130 Hawaii v. Office of Haw.v. Office of Haw. Affairs, 556 U.S.Affairs, 556 U.S. 163, 175 (2009); 163, 175 (2009); see also District of ColumbiaDistrict of Columbia v. Heller, 554 U.S. 570, v. Heller, 554 U.S. 570,
578 n.3 (2008) (stating, in interpreting the language of the Second Amendment, that “where the text of a clause itself 578 n.3 (2008) (stating, in interpreting the language of the Second Amendment, that “where the text of a clause itself
indicates that it does not have operative effect, such as ‘whereas’ clausesindicates that it does not have operative effect, such as ‘whereas’ clauses in federal legislation or the Constitution’s in federal legislation or the Constitution’s
preamble, a court has no license to make it do what it waspreamble, a court has no license to make it do what it was not designednot designed to do”).to do”).
131 556 U.S. 163, 168 (2009) (internal quotation marks omitted) (quoting Joint Resolution to Acknowledge the 100th 131 556 U.S. 163, 168 (2009) (internal quotation marks omitted) (quoting Joint Resolution to Acknowledge the 100th
Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii,Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, Pub. L. No. 103-150, 107 Stat. 1513 Pub. L. No. 103-150, 107 Stat. 1513
(1993)). (1993)).
132 132 Id. at 167. at 167.
133 133 Id. at 168 (internal quotation marks and citation omitted). at 168 (internal quotation marks and citation omitted).
134 134 Id.
135 135 Id. at 170. at 170.
136 136 Id. at 175 (internal quotation marks omitted) (quoting 177 P.3d 884, 901 (Hawaii 2008)). at 175 (internal quotation marks omitted) (quoting 177 P.3d 884, 901 (Hawaii 2008)).
137 137 Id. at 168–69 (quoting 107 Stat. at 1512). at 168–69 (quoting 107 Stat. at 1512).
138 138 Id. at 173–75. at 173–75.
139 139 Id. at 175–76 (internal quotation marks and citations omitted). at 175–76 (internal quotation marks and citations omitted). See supra “How a New Act Affects Existing Law”
(discussing(discussing the Court’s presumption against implied repeals). the Court’s presumption against implied repeals).
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Sense of Congress Provisions
Some Some ~~bil s~~bills contain a provision stating the “sense of Congress” about a particular topic addressed contain a provision stating the “sense of Congress” about a particular topic addressed
by the legislationby the legislation (e.g(e.g.., Figure 12).).~~140~~
140 Figure 12. Sense of Congress

Source: DevelopingDeveloping Innovation and Growing the Internet of Things Act, S. 88, 115th Cong. § 2(b) (as referredInnovation and Growing the Internet of Things Act, S. 88, 115th Cong. § 2(b) (as referred in in
House, Aug. 4, 2017), https://www.congress.gov/115/bil s/s88/BILLS-115s88rfh.pdf#page=3. House, Aug. 4, 2017), https://www.congress.gov/115/bil s/s88/BILLS-115s88rfh.pdf#page=3.
Courts Courts ~~general y~~generally regard these provisions as “precatory” and “not amounting to positive, regard these provisions as “precatory” and “not amounting to positive,
enforceable law.”141 For example, in a 1992 decision, the U.S. Court of Appeals for the First enforceable law.”141 For example, in a 1992 decision, the U.S. Court of Appeals for the First
Circuit142 reasoned that language “setting forth ‘the sense of Congress’ and recommending that Circuit142 reasoned that language “setting forth ‘the sense of Congress’ and recommending that
states ‘should’ review their laws regarding mental health patients [was] plainly precatory.”143 The states ‘should’ review their laws regarding mental health patients [was] plainly precatory.”143 The
court held that the language “neither require[d] nor prohibit[ed] any action on the part of the court held that the language “neither require[d] nor prohibit[ed] any action on the part of the
states or any other party.”144 states or any other party.”144
Congress sometimes uses sense of Congress provisions in Congress sometimes uses sense of Congress provisions in ~~bil s~~bills or nonbinding resolutions to or nonbinding resolutions to
express its position in an area where Congress shares authority with the executive branch or express its position in an area where Congress shares authority with the executive branch or
where the division of authority is unclear or unsettled, such as certain matters of foreign policy.145 where the division of authority is unclear or unsettled, such as certain matters of foreign policy.145
While sense of Congress language, by itself, does not compel the President to follow a particular While sense of Congress language, by itself, does not compel the President to follow a particular

~~140 Simple~~ 140 Simple or concurrent resolutions, which do not have the force of law, are often usedor concurrent resolutions, which do not have the force of law, are often used to express the “sense of to express the “sense of
Congress”Congress” on a topic. on a topic. See, e.g., H. Res. 895, 116th Cong. (as introduced, Mar. 10, 2020), , H. Res. 895, 116th Cong. (as introduced, Mar. 10, 2020),
https://www.congress.gov/bill/116th-congress/house-resolution/895/ (“https://www.congress.gov/bill/116th-congress/house-resolution/895/ (“ Recognizing National School Breakfast Week Recognizing National School Breakfast Week
from March 2nd through March 6th, 2020, and expressing the sense of Congress that providing breakfast in schools from March 2nd through March 6th, 2020, and expressing the sense of Congress that providing breakfast in schools
through the National School Breakfast Program has a positive impact on classroom performance.through the National School Breakfast Program has a positive impact on classroom performance. ”). ”). See supra ~~“ Report~~
~~T erminology on T ypes of~~ “Report Terminology on Types of Federal Legislation.” Federal Legislation.”
141 Chong Yia Yang v. Cal. Dep’t of Soc. Servs.,141 Chong Yia Yang v. Cal. Dep’t of Soc. Servs., 183 F.3d 953, 955, 958183 F.3d 953, 955, 958 –61 (9th Cir. 1999) (holding that sense of –61 (9th Cir. 1999) (holding that sense of
CongressCongress provision did not create an entitlement to welfare benefits for certain noncitizen veterans even though the provision did not create an entitlement to welfare benefits for certain noncitizen veterans even though the
provision expressed Congress’sprovision expressed Congress’s sense that such residents “sense that such residents “ should be considered veterans for purposes of continuing be considered veterans for purposes of continuing
certain welfare benefits” becausecertain welfare benefits” because the act did not list suchthe act did not list such residents among its exceptions to the act’s welfare benefit residents among its exceptions to the act’s welfare benefit
restrictions and Congressrestrictions and Congress later amended the act later amended the act ~~t o~~to reinstate benefits for certain refugees in this population at a later reinstate benefits for certain refugees in this population at a later
effective date (internal quotation marks and citation omitted)). effective date (internal quotation marks and citation omitted)).
142 References to a particular circuit in this report (e.g., First Circuit) refer to the U.S. Court of Appeals for that circuit. 142 References to a particular circuit in this report (e.g., First Circuit) refer to the U.S. Court of Appeals for that circuit.
143 Monahan v. Dorchester Counseling Ctr., Inc., 961 F.2d 987, 995 (1st Cir. 1992143 Monahan v. Dorchester Counseling Ctr., Inc., 961 F.2d 987, 995 (1st Cir. 1992 ). ).
144 144 Id.
145 145 See generally Zivotofsky v. Kerry, 576 U.S. 1, 14 (2015) (“Recognition [of a foreign sovereign] is a Zivotofsky v. Kerry, 576 U.S. 1, 14 (2015) (“Recognition [of a foreign sovereign] is a ~~t opic~~topic on which on which
the Nation must ‘speak . . . with one voice.’ the Nation must ‘speak . . . with one voice.’ ~~T hat~~That voice must be the President’s.” (internal citations omitted)); voice must be the President’s.” (internal citations omitted)); id. at 16 at 16
(“It remains true, of course, that many decisions affecting foreign relations—including(“It remains true, of course, that many decisions affecting foreign relations—including decisions that may determine decisions that may determine
the course of our relations with recognized countries—require congressional action.”).the course of our relations with recognized countries—require congressional action.”).
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course of action,146 it course of action,146 it ~~al ows~~allows Congress to speak with a unified voice,147 to bring attention to an Congress to speak with a unified voice,147 to bring attention to an
issue, and, perhaps, to persuade the executive branch to adopt the legislature’s position.148 issue, and, perhaps, to persuade the executive branch to adopt the legislature’s position.148
Although sense of Congress language may not have independent legal effect, as with other Although sense of Congress language may not have independent legal effect, as with other
contextual clues, such language may confirm a court’s interpretation of other provisions in the act contextual clues, such language may confirm a court’s interpretation of other provisions in the act
that the court does see as positive, enforceable law.149 that the court does see as positive, enforceable law.149 ~~And for courts wil ing~~For courts willing to look beyond the to look beyond the
language of a disputed provision to statements of congressional intent, sense of Congress language of a disputed provision to statements of congressional intent, sense of Congress
provisions may be instructive.150 For example, the Supreme Court has said that “[s]ubsequent provisions may be instructive.150 For example, the Supreme Court has said that “[s]ubsequent
legislationlegislation declaring the intent of an earlier statute is entitled to great weight in statutory declaring the intent of an earlier statute is entitled to great weight in statutory
construction.”151 The Eighth Circuit cited this principle in construing a statute expressing “‘the construction.”151 The Eighth Circuit cited this principle in construing a statute expressing “‘the
sense of Congress that under existing law’ the Secretary [of Transportation] was not to impound sense of Congress that under existing law’ the Secretary [of Transportation] was not to impound
funds under the Federal-Aid Highway Act.”152 In holding that the Secretary could not withhold funds under the Federal-Aid Highway Act.”152 In holding that the Secretary could not withhold
apportioned funds “for purposes apportioned funds “for purposes ~~total y~~totally unrelated to the highway program,” the court explained unrelated to the highway program,” the court explained
that the sense of Congress language “merely that the sense of Congress language “merely corroborates what . . . the statute as a whole already what . . . the statute as a whole already
provides.”153 provides.”153
Declarations of Policy
Some Some ~~bil s~~bills contain a “Declaration of Policy” or “Statement of Policy” section. This section may contain a “Declaration of Policy” or “Statement of Policy” section. This section may
identify the general purpose of the legislation or the intent of Congress,154 in which case it identify the general purpose of the legislation or the intent of Congress,154 in which case it
operates much like other statements of purpose or intent: it provides evidence of Congress’s operates much like other statements of purpose or intent: it provides evidence of Congress’s
intent but rarely displaces the text of substantive provisions or creates new legal rules or intent but rarely displaces the text of substantive provisions or creates new legal rules or
requirements.155 A statement of policy may also be used to express a particular policy stance, as requirements.155 A statement of policy may also be used to express a particular policy stance, as

146 Although a sense of Congress146 Although a sense of Congress provision is usuallyprovision is usually framed in precatory terms, to the extent it uses framed in precatory terms, to the extent it uses ~~manda tory~~
~~language seeking~~ mandatory language seeking to bind the President, the provision could raise separationto bind the President, the provision could raise separation -of-powers issues.-of-powers issues. Cf. Zivotofsky, 576 U.S. , 576 U.S.
at 30 (“If Congress may not pass a law,at 30 (“If Congress may not pass a law, speaking in its own voice, that effects formal recognition [of a foreign speaking in its own voice, that effects formal recognition [of a foreign
sovereign], then it follows that it may not force the President himself to contradict his earlier statement.”). sovereign], then it follows that it may not force the President himself to contradict his earlier statement.”).
147 147 See Zivotofsky, 576 U.S., 576 U.S. at 80 (Scalia, J., dissenting) (arguingat 80 (Scalia, J., dissenting) (arguing that the majority’s “perception that the Nation ‘must that the majority’s “perception that the Nation ‘must
speak with one voice’” in certain foreign policy matters “will speak with one voice’” in certain foreign policy matters “will systematically favor the unitary President over the plural favor the unitary President over the plural
CongressCongress in disputesin disputes involving foreign affairs”). involving foreign affairs”).
148 148 See ~~T homas~~Thomas M. Franck & Clifford A. Bob, M. Franck & Clifford A. Bob, The Return of Humpty-Dumpty: Foreign Relations Law After the Chadha Chadha
Case, 79 A.J.I.L. 912, 935 (1985) (stating that a sense of Congress resolution, though nonbinding,, 79 A.J.I.L. 912, 935 (1985) (stating that a sense of Congress resolution, though nonbinding, “ “enable[s] the enable[s] the
legislative branch to communicate its collective legislative branch to communicate its collective ~~t hinking~~thinking on a particular subject” and to raise awareness on a particular subject” and to raise awareness of Congress’s of Congress’s
disagreement with a particular course of action taken by the executive branch). disagreement with a particular course of action taken by the executive branch).
149 149 See, e.g., Husty v. United States, 282 U.S. 694, 702–03 (1931) (interpreting an “intent of Congress” proviso as “only , Husty v. United States, 282 U.S. 694, 702–03 (1931) (interpreting an “intent of Congress” proviso as “only
a guidea guide to the discretion of the court in imposing the increased sentences for those to the discretion of the court in imposing the increased sentences for those ~~o ffenses~~offenses for which an increased for which an increased
penalty [was] authorized by the Actpenalty [was] authorized by the Act ”). ”).
150 150 See, e.g., Doe v. Risch, 398 F. Supp. 3d 647, 657 (N.D. Cal. 2019) (reasoning that although Congress did, Doe v. Risch, 398 F. Supp. 3d 647, 657 (N.D. Cal. 2019) (reasoning that although Congress did not not
mandate a particular timetable for processing the asylum application at issue, a sense of Congressmandate a particular timetable for processing the asylum application at issue, a sense of Congress provision that the provision that the
agency should adjudicateagency should adjudicate the application within 180 days cut in plaintiff’s favor on one factor in the court’s analysis of the application within 180 days cut in plaintiff’s favor on one factor in the court’s analysis of
whether the agency’s delaywhether the agency’s delay ~~was~~ was reasonable). reasonable). But cf. Fund for Animals, Inc. v. Kempthorne, 472 F.3d 872, 877 (D.C. Fund for Animals, Inc. v. Kempthorne, 472 F.3d 872, 877 (D.C.
Cir. 2006) (interpreting sense of Congress languageCir. 2006) (interpreting sense of Congress language as a response to “what Congress believedas a response to “what Congress believed to be an erroneous to be an erroneous
judicialjudicial interpretation of a treaty,” and reasoning that it did “not in any way alter the plain text of the [statute’s] other interpretation of a treaty,” and reasoning that it did “not in any way alter the plain text of the [statute’s] other
provisions”). provisions”).
151 Red151 Red Lion Broad. Co. v. FCC,Lion Broad. Co. v. FCC, 395 U.S. 367, 380–81 (1969). 395 U.S. 367, 380–81 (1969).
152 State Highway152 State Highway Comm’n v. Volpe, 479 F.2d 1099, 1115 (8th Cir. 1973) (quoting 23 U.S.C. § 101(c)). Comm’n v. Volpe, 479 F.2d 1099, 1115 (8th Cir. 1973) (quoting 23 U.S.C. § 101(c)).
153 153 Id. at 1116. at 1116.
154 154 See, e.g., Sea-Land, Sea-Land Serv., Inc. v. Kreps, 566 F.2d 763, 765–66 (D.C. Cir. 1977) (referring to the declaration of Serv., Inc. v. Kreps, 566 F.2d 763, 765–66 (D.C. Cir. 1977) (referring to the declaration of
policy in the Merchant Marine Act of 1936 as a statement of Congress’s “goals”). policy in the Merchant Marine Act of 1936 as a statement of Congress’s “goals”).
155 155 See, e.g., S.D., S.D. Warren Co. v. Me. Bd.Warren Co. v. Me. Bd. of Envt’l Prot., 547 U.S. 370, 386 (2006)of Envt’l Prot., 547 U.S. 370, 386 (2006) (citing a declaration of policy in the (citing a declaration of policy in the
Clean Water Act in support of the CourtClean Water Act in support of the Court ’s interpretation of a certain statutory term); Citizens Against Casino Gambling ’s interpretation of a certain statutory term); Citizens Against Casino Gambling
v. Chaudhuri,v. Chaudhuri, 802 F.3d 267, 287–88 (2d Cir. 2015) (reasoning that the court’s narrow interpretation of an exception in 802 F.3d 267, 287–88 (2d Cir. 2015) (reasoning that the court’s narrow interpretation of an exception in
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with legislation with legislation on a question of foreign policy, an example of which appears on a question of foreign policy, an example of which appears inin Figure 13. But, But,
as noted above, even an expressly stated policy position as noted above, even an expressly stated policy position ~~wil~~ will not, in and of itself, create third-not, in and of itself, create third-
party rights and obligations.156 party rights and obligations.156
Figure 13. Statement of Policy

Source: Israel Anti-Boycott Act, S. 720, 115th Cong. § 3 (as introduced, Mar. 23, 2017), Israel Anti-Boycott Act, S. 720, 115th Cong. § 3 (as introduced, Mar. 23, 2017),
https://www.congress.gov/115/bil s/s720/BILLS-115s720is.pdf#page=4. https://www.congress.gov/115/bil s/s720/BILLS-115s720is.pdf#page=4.
While they may have limited effect in terms of altering existing rights and obligations, policy While they may have limited effect in terms of altering existing rights and obligations, policy
statements may be statements may be ~~especial y~~especially relevant in two, specific contexts. The first context involves relevant in two, specific contexts. The first context involves
lawsuits filed against the United States under the Federal Tort Claims Act (FTCA).157 That law lawsuits filed against the United States under the Federal Tort Claims Act (FTCA).157 That law
does not extend its partialdoes not extend its partial waiver of sovereign immunity to—that is, the United States has not waiver of sovereign immunity to—that is, the United States has not
consented to suits against its officials for—claims “based upon the exercise or performance or the consented to suits against its officials for—claims “based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty on the part of a federal agency or an failure to exercise or perform a discretionary function or duty on the part of a federal agency or an

the Indian Gamingthe Indian Gaming Regulatory Act comported with “Regulatory Act comported with “ Congress’s intent to promote tribal interests through gaming” as Congress’s intent to promote tribal interests through gaming” as
expressed through the act’s declaration of policy); Bd. of Educ.expressed through the act’s declaration of policy); Bd. of Educ. v. Leininger, 822 F. Supp.v. Leininger, 822 F. Supp. 516, 527 (N.D. Ill. 1992) 516, 527 (N.D. Ill. 1992)
(holding that the declaration of policy in the National School Lunch Act(holding that the declaration of policy in the National School Lunch Act —“ —“to safeguard the health and well-beingto safeguard the health and well-being of of
the Nation’s children and to encourage the domestic consumption of nutritious agricultural commodities and other the Nation’s children and to encourage the domestic consumption of nutritious agricultural commodities and other
food, by assistingfood, by assisting the States, through grants-in-aid and other means”—did not create enforceable rights for school the States, through grants-in-aid and other means”—did not create enforceable rights for school
districts and “merely presents the broad policy aims of the Act”). districts and “merely presents the broad policy aims of the Act”). But see AquaAqua Harvesters, Inc. v. N.Y. State Dep’t of Harvesters, Inc. v. N.Y. State Dep’t of
Envtl. Conservation, 399 F. Supp. 3d 15, 40 (E.D.N.Y. 2019)Envtl. Conservation, 399 F. Supp. 3d 15, 40 (E.D.N.Y. 2019) (rejecting the plaintiffs’ dormant commerce clause (rejecting the plaintiffs’ dormant commerce clause
challenges to state commercial fishing lawschallenges to state commercial fishing laws ~~because~~ because a federal lawa federal law provided that “It is the policy of Congress that it is in provided that “It is the policy of Congress that it is in
the public interest for each State to continue to regulate the taking for any purpose of fish and wildlifethe public interest for each State to continue to regulate the taking for any purpose of fish and wildlife ~~wit hin~~ within its its
boundaries”boundaries” and that congressional silence “shall not be construed to impose any barrier” under the Commerce Clause and that congressional silence “shall not be construed to impose any barrier” under the Commerce Clause
“to the regulation of hunting or fishing by a State”). “to the regulation of hunting or fishing by a State”).
156 156 See Lyng v. Nw.Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 454–55 (1988) (stating, with regard to a policy Indian Cemetery Protective Ass’n, 485 U.S. 439, 454–55 (1988) (stating, with regard to a policy
statement in the American Indian Religiousstatement in the American Indian Religious Freedom Act, that “[n]owhere in the law isFreedom Act, that “[n]owhere in the law is there so much asthere so much as a hint of any a hint of any
intent to create a cause of action or any judiciallyintent to create a cause of action or any judicially enforceable individualenforceable individual rights”); Greenbergrights”); Greenberg v. Bush,v. Bush, 150 F. Supp.150 F. Supp. 2d 2d
447, 451 (E.D.N.Y. 2001) (holding that a 1922 House Joint Resolution stating, 447, 451 (E.D.N.Y. 2001) (holding that a 1922 House Joint Resolution stating, inter alia, that the United States “, that the United States “ favors favors
the establishment in Palestine of a national home for the Jewish people” didthe establishment in Palestine of a national home for the Jewish people” did not “set forth a legislative scheme” not “set forth a legislative scheme” ~~f rom~~from
which to infer a private right of action).which to infer a private right of action).
157 157 See generally CRS CRS Report R45732, Report R45732, The Federal Tort Claims Act (FTCA): A Legal Overview,, by Kevin M. Lewis.by Kevin M. Lewis.
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employee of the Government.”158 Courts have interpreted this “discretionary function exception” employee of the Government.”158 Courts have interpreted this “discretionary function exception”
to bar an FTCA suit if “the federal employee was engaged in conduct that was (1) discretionary to bar an FTCA suit if “the federal employee was engaged in conduct that was (1) discretionary
and (2) policy-driven.”159 In an analogous context involving a statute that courts had interpreted and (2) policy-driven.”159 In an analogous context involving a statute that courts had interpreted
to include a similar discretionary function exception,160 the Fifth Circuit analyzed a declaration of to include a similar discretionary function exception,160 the Fifth Circuit analyzed a declaration of
policy to determine whether a particular governmental action was sufficiently based on public policy to determine whether a particular governmental action was sufficiently based on public
policy considerations to be insulated from judicial review.161 policy considerations to be insulated from judicial review.161
The second situation in which statements of policy may be particularly relevant is where The second situation in which statements of policy may be particularly relevant is where
Congress directs an agency to implement a law in accordance with a declaration of policy. For Congress directs an agency to implement a law in accordance with a declaration of policy. For
example, in 1940, Congress included a “National Transportation Policy” in the Interstate example, in 1940, Congress included a “National Transportation Policy” in the Interstate
Commerce Act.162 The policy began: “It is hereby declared to be the national transportation policy Commerce Act.162 The policy began: “It is hereby declared to be the national transportation policy
of the Congress to provide for fair and impartial regulation of of the Congress to provide for fair and impartial regulation of al all modes of transportation subject modes of transportation subject
to the provisions of this Act . . . .”163 At the conclusion of the policy statements, the act stated: to the provisions of this Act . . . .”163 At the conclusion of the policy statements, the act stated:
““Al All of the provisions of this Act of the provisions of this Act ~~shal~~ shall be administered and enforced with a view to carrying out be administered and enforced with a view to carrying out
the above declaration of policy.”164 In reviewing an action by the Interstate Commerce the above declaration of policy.”164 In reviewing an action by the Interstate Commerce
Commission in Commission in Schaffer Transportation Company v. United States, the Supreme Court referred to , the Supreme Court referred to
the National Transportation Policy as “the yardstick by which the correctness of the the National Transportation Policy as “the yardstick by which the correctness of the
Commission’s actions Commission’s actions ~~wil~~ will be measured.”165 The Court reasoned that although the Commission be measured.”165 The Court reasoned that although the Commission
“possesse[d] a ‘wide range of discretionary authority’” in making the contested determination, the “possesse[d] a ‘wide range of discretionary authority’” in making the contested determination, the
Commission’s discretion “must be exercised in conformity with the declared policies of the Commission’s discretion “must be exercised in conformity with the declared policies of the
Congress.”166 Congress.”166
The Court’s focus on the National Transportation Policy in The Court’s focus on the National Transportation Policy in Schaffer Transportation can be traced can be traced
to the mandatory language “to the mandatory language “~~shal~~ shall be administered and enforced” in that policy statement.167 A be administered and enforced” in that policy statement.167 A
later, D.C. Circuit decision suggests that inserting mandatory language into a declaration of later, D.C. Circuit decision suggests that inserting mandatory language into a declaration of
policy—which is policy—which is ~~normal y~~normally a prefatory statement about the goals or purpose of the legislation— a prefatory statement about the goals or purpose of the legislation—
can raise questions as to that section’s legal effect. The D.C. Circuit considered whether 1978 can raise questions as to that section’s legal effect. The D.C. Circuit considered whether 1978
amendments to the declaration of policy section of the Federal Aviation Act altered the amendments to the declaration of policy section of the Federal Aviation Act altered the ~~al ocation~~allocation
of responsibility for approving new airline carriers, which at that time was divided between the of responsibility for approving new airline carriers, which at that time was divided between the
Federal Aviation Administration (FAA)—charged with “safety regulation”—and the Civil Federal Aviation Administration (FAA)—charged with “safety regulation”—and the Civil
Aeronautics Board (CAB)—responsible for “economic regulation.”168 The amended declaration Aeronautics Board (CAB)—responsible for “economic regulation.”168 The amended declaration

~~158 28 U.S.C. § 2680(a).~~
~~159 See CRS~~ 158 28 U.S.C. § 2680(a). 159 See CRS Report R45732, Report R45732, The Federal Tort Claims Act (FTCA): A Legal Overview,, ~~supra~~ supra note 157, at 19. note 157, at 19.
160 160 See WigginsWiggins v. United States, 799 F.2d 962, 964 (5th Cir. 1986) (explaining that although the “v. United States, 799 F.2d 962, 964 (5th Cir. 1986) (explaining that although the “ Suits in Admiralty Suits in Admiralty
Act, passedAct, passed in 1920, does not contain a specific exception of the discretionary acts of government employees from in 1920, does not contain a specific exception of the discretionary acts of government employees from
coverage ascoverage as does the later enacted Federal does the later enacted Federal ~~T ort~~Tort Claims Act,” all but one federal circuit to consider the question had Claims Act,” all but one federal circuit to consider the question had
“implied a discretionary exception comparable to the exception in the [“implied a discretionary exception comparable to the exception in the [~~FT CA~~FTCA]”).]”).
161 161 See BaldassaroBaldassaro v. United States, 64 F.3d 206, 211–12 (5th Cir. 1995)v. United States, 64 F.3d 206, 211–12 (5th Cir. 1995) (reasoning that a declaration that “an efficient (reasoning that a declaration that “an efficient
and adequateand adequate merchant marine composed of the bestmerchant marine composed of the best -equipped, safest, and most suitable vessels”-equipped, safest, and most suitable vessels” ~~was~~ was necessary for necessary for
national security demonstrated that even discrete design decisions for vesselsnational security demonstrated that even discrete design decisions for vessels covered by the act “covered by the act “ involve the weighing involve the weighing
of competing policy considerations that the discretionary function exception protects from judicial scrutiny”). of competing policy considerations that the discretionary function exception protects from judicial scrutiny”).
162 Transportation~~162 T ransportation~~ Act of 1940, Pub. L. No. 76-785, 54 Stat. 898, 899. Act of 1940, Pub. L. No. 76-785, 54 Stat. 898, 899.
163 163 Id.
164 164 Id.
165 355 U.S. 83, 87–88 (1957). 165 355 U.S. 83, 87–88 (1957).
166 166 Id. at 88 (internal citation omitted). at 88 (internal citation omitted).
167 167 See id. at 87–88 (reasoning that the “National Transportation Policy, formulated by Congress, specifies in its terms at 87–88 (reasoning that the “National Transportation Policy, formulated by Congress, specifies in its terms
that it is to govern the Commission in the administration and enforcement of all provisions of the that it is to govern the Commission in the administration and enforcement of all provisions of the ~~Ac t~~Act” (footnote ” (footnote
omitted)). omitted)). See also infra “‘“ “Shall” Versus ~~“ May”.~~’”
“May”.” 168 Air Line Pilots Ass’n Int’l v. Civil Aeronautics Bd.,168 Air Line Pilots Ass’n Int’l v. Civil Aeronautics Bd., 667 F.2d 181, 182 (D.C. Cir. 1981) (quoting 49 U.S.C. 667 F.2d 181, 182 (D.C. Cir. 1981) (quoting 49 U.S.C.
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set forth factors that the CAB “ set forth factors that the CAB “shall consider” in evaluating new air transportation services, ” in evaluating new air transportation services,
including the “assignment and maintenance of safety as the highest priority in air commerce.”169 including the “assignment and maintenance of safety as the highest priority in air commerce.”169
Although the court ultimately concluded that “Congress did not intend . . . to alter the existing Although the court ultimately concluded that “Congress did not intend . . . to alter the existing
~~al ocation~~allocation of responsibility” between the FAA and the CAB, the framing of the declaration made of responsibility” between the FAA and the CAB, the framing of the declaration made
it a key contested issue in the case.170 As a result, the precise wording of a declaration of policy is it a key contested issue in the case.170 As a result, the precise wording of a declaration of policy is
~~likely~~ likely more significant than its labelmore significant than its label as a “declaration.” as a “declaration.”
Statements of Purpose
Congressional drafters may indicate the purpose of a particular Congressional drafters may indicate the purpose of a particular ~~bil~~ bill in a separate section of the in a separate section of the ~~bil~~
bill or combined with proposed congressional findings. In the example ior combined with proposed congressional findings. In the example in Figure 14, the purpose of the purpose of
the legislationthe legislation follows a subsection on findings. follows a subsection on findings.
Figure 14. Purpose

Source: Economic FreedomEconomic Freedom and Financial Security for Workingand Financial Security for Working People Act of 2018, H.R. 5630, 115th Cong. People Act of 2018, H.R. 5630, 115th Cong.
§ 2(b) (as introduced, Apr. 26, 2018), https://www.congress.gov/115/bil s/hr5630/BILLS-115hr5630ih.pdf#page=3. § 2(b) (as introduced, Apr. 26, 2018), https://www.congress.gov/115/bil s/hr5630/BILLS-115hr5630ih.pdf#page=3.
As with other evidence of legislative intent, the stated purpose of an act can help a court As with other evidence of legislative intent, the stated purpose of an act can help a court
determine whether other language in the determine whether other language in the ~~bil~~ bill should be read expansively or narrowly.171 For should be read expansively or narrowly.171 For
example, in interpreting the Fair Credit Reporting Act, the Supreme Court construed the phrase example, in interpreting the Fair Credit Reporting Act, the Supreme Court construed the phrase
“increase in any charge for . . . insurance” to include an unfavorable “increase in any charge for . . . insurance” to include an unfavorable initial rate due to an rate due to an
inaccurate credit report, even though the initial rate is the first charge and not an “increase” from inaccurate credit report, even though the initial rate is the first charge and not an “increase” from
a prior one.172 For the Court, this reading comported with “the ambitious objective set out in the a prior one.172 For the Court, this reading comported with “the ambitious objective set out in the

§§ §§ 1371–87 (1976)). 1371–87 (1976)).
169 Airline Deregulation Act of 1978, Pub. L. No. 95-504, 92 Stat. 1705, 1706 (1978), https://www.govinfo.gov/ 169 Airline Deregulation Act of 1978, Pub. L. No. 95-504, 92 Stat. 1705, 1706 (1978), https://www.govinfo.gov/
content/pkg/content/pkg/~~ST AT UTE-92/pdf/ST AT UTE~~STATUTE-92/pdf/STATUTE-92-Pg1705.pdf (emphasis added). -92-Pg1705.pdf (emphasis added).
170 170 Air Line Pilots Ass’n Int’l, 667 F.2d at 188. , 667 F.2d at 188.
171 171 See Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d 398, 407, 409 (6th Cir. 2014) (declining to read a Jones v. Dirty World Entm’t Recordings LLC, 755 F.3d 398, 407, 409 (6th Cir. 2014) (declining to read a
statutory term in § 230(f) of the Communications Decency Act of 1996 (CDA) “statutory term in § 230(f) of the Communications Decency Act of 1996 (CDA) “ so broadly” as to “so broadly” as to “ defeat the purposes defeat the purposes
of the CDA,” expressed, of the CDA,” expressed, inter alia, in the “policy” statements in § 230(b)); EEOC v. First Catholic Slovak Ladies , in the “policy” statements in § 230(b)); EEOC v. First Catholic Slovak Ladies
Ass’n, 694 F.2d 1068, 1070 (6th Cir. 1982)Ass’n, 694 F.2d 1068, 1070 (6th Cir. 1982) (reciting the purpose of the Age Discrimination in Employment Act as set (reciting the purpose of the Age Discrimination in Employment Act as set
forth in the act’s Statement of Findings and Purpose, and noting that courts interpret “employee” in social welfare forth in the act’s Statement of Findings and Purpose, and noting that courts interpret “employee” in social welfare
legislation broadly “so as to effectuate the state[d] purposes of [those laws]”); United States v. Angelilli,legislation broadly “so as to effectuate the state[d] purposes of [those laws]”); United States v. Angelilli, 660 F.2d 23, 660 F.2d 23,
32–33 (2d Cir. 1981) (citing congressional findings and purpose as support for the court’s interpretation that a RICO 32–33 (2d Cir. 1981) (citing congressional findings and purpose as support for the court’s interpretation that a RICO
enterprise includes governmental units).enterprise includes governmental units).
172 Safeco Ins. Co. of Am. v. Burr, 172 Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 61–63 (2007) (internal quotation marks omitted) (quoting 15 U.S.C. 551 U.S. 47, 61–63 (2007) (internal quotation marks omitted) (quoting 15 U.S.C.
§ 1681a(k)(1)(B)(i))). § 1681a(k)(1)(B)(i))).
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Act’s statement of purpose, which uses expansive terms to describe the adverse effects of unfair Act’s statement of purpose, which uses expansive terms to describe the adverse effects of unfair
and inaccurate credit reporting and the responsibilities of consumer reporting agencies.”173 and inaccurate credit reporting and the responsibilities of consumer reporting agencies.”173
Findings
In preparing new legislation or amendments to existing laws, Congress sometimes makes formal In preparing new legislation or amendments to existing laws, Congress sometimes makes formal
findings regarding the circumstances that prompted a particular piece of legislation. Congress findings regarding the circumstances that prompted a particular piece of legislation. Congress
may document these findings in a legislativemay document these findings in a legislative record such as a conference or committee report on record such as a conference or committee report on
the the ~~bil~~ bill, or it may include its findings in the , or it may include its findings in the ~~bil~~ bill text itself.174 When included in a text itself.174 When included in a ~~bil ,~~ bill, the findings the findings
may appear in a separate may appear in a separate ~~bil~~ bill section (e.g.section (e.g.,, Figure 15) or alongside statements of purpose. ) or alongside statements of purpose.
Figure 15. Findings

Source: Innocent Innocent ~~Sel ers Fairness~~ Sellers Fairness Act, H.R. 1118, 115th Cong. § 2 (as introduced, Feb. 16, 2017), Act, H.R. 1118, 115th Cong. § 2 (as introduced, Feb. 16, 2017),
https://www.congress.gov/115/bil s/hr1118/BILLS-115hr1118ih.pdf#page=2. https://www.congress.gov/115/bil s/hr1118/BILLS-115hr1118ih.pdf#page=2.
Like other prefatory text, congressional findings Like other prefatory text, congressional findings ~~general y~~generally do not have independent legal effect or do not have independent legal effect or
“override the plain meaning of specific provisions”175—regardless of whether they are included in “override the plain meaning of specific provisions”175—regardless of whether they are included in

173 173 Id. at 62; at 62; see also Sturgeon v. Frost, 139 S.Sturgeon v. Frost, 139 S. Ct. 1066, 1083 (2019) (declining to adopt an agency’s construction of an Ct. 1066, 1083 (2019) (declining to adopt an agency’s construction of an
act’s provision that, in the Court’s view, wasact’s provision that, in the Court’s view, was not only unsupported by the statutory text but also “wouldnot only unsupported by the statutory text but also “would undermine [the undermine [the
act’s] grand bargain”act’s] grand bargain” as reflected in “its statement of purpose”). as reflected in “its statement of purpose”).
174 174 See Pub. Citizen v. Dep’t of Justice, 491 U.S. 440, 475 (1989) (Kennedy, J., concurring in the judgment) (describing Pub. Citizen v. Dep’t of Justice, 491 U.S. 440, 475 (1989) (Kennedy, J., concurring in the judgment) (describing
“the section of the Conference Committee Report entitled ‘Findings and Purposes’” as “the most obvious place” to look “the section of the Conference Committee Report entitled ‘Findings and Purposes’” as “the most obvious place” to look
to identify Congress’s purpose in enacting the Federal Advisory Committee Act); Hodel v. Va.to identify Congress’s purpose in enacting the Federal Advisory Committee Act); Hodel v. Va. ~~Surface~~ Surface Mining & Mining &
Reclamation Ass’n, 452 U.S. 264, 277 (1981) (referring to “Reclamation Ass’n, 452 U.S. 264, 277 (1981) (referring to “ Congress’ express findings, set out in the [SurfaceCongress’ express findings, set out in the [Surface Mining Mining
Control and Reclamation] Act itself”).Control and Reclamation] Act itself”).
175 Reeves v. Astrue, 526 F.3d 732, 737 (11th Cir. 2008) (stating that the court “cannot use Congress’175 Reeves v. Astrue, 526 F.3d 732, 737 (11th Cir. 2008) (stating that the court “cannot use Congress’s s general general
statements of findings and purpose to override the plain meaning of specific provisions of the Act”); statements of findings and purpose to override the plain meaning of specific provisions of the Act”); see also Astrue v. Astrue v.
Ratliff, 560 U.S. 586, 589–91 (2010) (resolving a circuit split involving the same statutory question at issue inRatliff, 560 U.S. 586, 589–91 (2010) (resolving a circuit split involving the same statutory question at issue in Reeves
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the the ~~bil~~ bill itself or in the legislativeitself or in the legislative record.176 But legislative findings can influence a court’s record.176 But legislative findings can influence a court’s
perception of Congress’s intended meaning when weighing competing interpretations of other perception of Congress’s intended meaning when weighing competing interpretations of other
provisions.177 Detailed findings may also provisions.177 Detailed findings may also ~~spel~~ spell out Congress’s reasons for intervening in an area out Congress’s reasons for intervening in an area
that implicates states’ or individuals’ rights, such as laws regulating commerce or speech, that implicates states’ or individuals’ rights, such as laws regulating commerce or speech,
discussed below.178 In such situations, judicial deference to formal congressional findings may discussed below.178 In such situations, judicial deference to formal congressional findings may
reflect broader concerns about the judiciary second-guessing the legislature’s factual reflect broader concerns about the judiciary second-guessing the legislature’s factual
determinations in scrutinizing the determinations in scrutinizing the ~~chal enged~~challenged law.179 law.179
A court may look to congressional findings to evaluate whether a law A court may look to congressional findings to evaluate whether a law ~~fal s~~falls within Congress’s within Congress’s
authority to “regulate Commerce . . . among the several States” under the Constitution’s authority to “regulate Commerce . . . among the several States” under the Constitution’s
Commerce Clause.180 The Supreme Court has interpreted that Clause to empower Congress to Commerce Clause.180 The Supreme Court has interpreted that Clause to empower Congress to
regulate, among other things, regulate, among other things, intrastate economic activity that has a “substantial effect” on state economic activity that has a “substantial effect” on
interstate commerce.181 On occasion, the Court has concluded that Congress exceeded its state commerce.181 On occasion, the Court has concluded that Congress exceeded its
Commerce Clause power by regulating noneconomic activity within the province of the states Commerce Clause power by regulating noneconomic activity within the province of the states
“based solely on [the activity’s] aggregate effect on interstate commerce.”182 In one such “based solely on [the activity’s] aggregate effect on interstate commerce.”182 In one such
decision, decision, United States v. Morrison, the Supreme Court made two observations about , the Supreme Court made two observations about
congressional findings that demonstrate their relevance in “substantial effect[s]” cases.183 First, congressional findings that demonstrate their relevance in “substantial effect[s]” cases.183 First,
the Court noted that “[w]hile Congress the Court noted that “[w]hile Congress ~~normal y~~normally is not required to make formal findings as to the is not required to make formal findings as to the
substantial burdens that an activity has on interstate commerce, the existence of such findings substantial burdens that an activity has on interstate commerce, the existence of such findings
may enable [the Court] to evaluate the legislativemay enable [the Court] to evaluate the legislative judgment that the activity in question judgment that the activity in question
~~substantial y~~substantially affects interstate commerce, even though no such substantial effect [is] visible to the affects interstate commerce, even though no such substantial effect [is] visible to the

consistently with the Eleventh Circuit’s interpretation). consistently with the Eleventh Circuit’s interpretation).
176 176 ~~T wo~~Two considerations may weigh considerations may weigh in favor of includingin favor of including ~~findings~~ findings in the billin the bill itself in some circumstances. First, when itself in some circumstances. First, when
CongressCongress ~~includes findings~~ includes findings in the billin the bill text itself, they become part of the statute once the bill is enacted text itself, they become part of the statute once the bill is enacted ~~a nd~~and may be may be
codifiedcodified in the in the U.S. Code or included or included in the statutory notes. Second, if a court is willingin the statutory notes. Second, if a court is willing to consult legislative findings to consult legislative findings
as part of its statutory interpretation analysis, it may view findings in the bill text itself as more authoritative than those as part of its statutory interpretation analysis, it may view findings in the bill text itself as more authoritative than those
that appear in the legislative history because both houses of Congress passedthat appear in the legislative history because both houses of Congress passed them. them. See City of ColumbusCity of Columbus v. Ours v. Ours
GarageGarage & Wrecker Serv., 536 U.S.& Wrecker Serv., 536 U.S. 424, 440 (2002) (describing a finding that Congress included424, 440 (2002) (describing a finding that Congress included “in the Act itself” as “in the Act itself” as
“[c]arrying more weight” than a finding in the conference report on the bill). “[c]arrying more weight” than a finding in the conference report on the bill).
177 For example, in 2002, the Supreme Court unanimously interpreted the definition of “disability” in the Americans 177 For example, in 2002, the Supreme Court unanimously interpreted the definition of “disability” in the Americans
with Disabilitieswith Disabilities Act (ADA) to “Act (ADA) to “ create a demanding standard for qualifyingcreate a demanding standard for qualifying ~~as disabled.” T oyota~~ as disabled.” Toyota Motor Mfg., Ky. v. Motor Mfg., Ky. v.
Williams, 534 U.S. 184, 197 (2002). Beyond “Williams, 534 U.S. 184, 197 (2002). Beyond “ the words of the disability definition itself,” the Court found support for the words of the disability definition itself,” the Court found support for
its interpretation in the act’s findings, reasoning that the number of Americans with “‘one or more physical or mental its interpretation in the act’s findings, reasoning that the number of Americans with “‘one or more physical or mental
disabilities’”disabilities’” that Congress cited “wouldthat Congress cited “would ~~surely~~ surely have been much higher” had Congresshave been much higher” had Congress intended “intended “ everyone with a everyone with a
physical impairment that precluded the performance of some isolated, unimportant, or particularly difficult manual task physical impairment that precluded the performance of some isolated, unimportant, or particularly difficult manual task
to qualify as disabled.”to qualify as disabled.” Id. at 196–97. In 2008 amendments to the ADA, Congress expressly rejected the Court’s at 196–97. In 2008 amendments to the ADA, Congress expressly rejected the Court’s
interpretation and adopted rules of construction for the “disability” definition. interpretation and adopted rules of construction for the “disability” definition. See ADA Amendments Act of 2008, ADA Amendments Act of 2008,
Pub. L. No. 110-325, § 2(b)(4), § 3, 122 Stat. 3553, 3554–56; Pub. L. No. 110-325, § 2(b)(4), § 3, 122 Stat. 3553, 3554–56; see also, e.g.,, Woolf v. Strada, 949 F.3d 89, 94 (2d Cir. Woolf v. Strada, 949 F.3d 89, 94 (2d Cir.
2020) (recognizing that the 2008 amendments superseded the Court’s interpretation in 2020) (recognizing that the 2008 amendments superseded the Court’s interpretation in Toyota Motor Manufacturing). ).
178 178 See GonzalesGonzales v. Raich, 545 U.S.v. Raich, 545 U.S. 1, 20 (2005) (“Findings in the introductory sections of the [Controlled Substances 1, 20 (2005) (“Findings in the introductory sections of the [Controlled Substances
Act (CSA)]Act (CSA)] explain why Congressexplain why Congress ~~deemed~~ deemed it appropriate to encompass local activities within the scope of the CSA.it appropriate to encompass local activities within the scope of the CSA. ”). ”).
179 179 See Hodel, 452 U.S., 452 U.S. at 276–77 (“Judicial review in this area isat 276–77 (“Judicial review in this area is influenced above all by the fact that the Commerce influenced above all by the fact that the Commerce
ClauseClause is is a grant of plenary authority to Congress. . . . Here, the District Court properly deferred to Congress’ a grant of plenary authority to Congress. . . . Here, the District Court properly deferred to Congress’
express findings, set out in the Act itself, about the effects of surface coal mining on express findings, set out in the Act itself, about the effects of surface coal mining on ~~interst ate~~interstate commerce.”). commerce.”).
180 U.S. CONST. art. I, sec. 8, cl. 3. 180 U.S. CONST. art. I, sec. 8, cl. 3.
181 United States v. Darby, 312 U.S. 100, 119–20 (1941). 181 United States v. Darby, 312 U.S. 100, 119–20 (1941). See generally United States v. Lopez, 514 U.S. 549, 558–59 United States v. Lopez, 514 U.S. 549, 558–59
(1995) (setting forth the “(1995) (setting forth the “ three broad categories of activity that Congress may three broad categories of activity that Congress may ~~regulat e~~regulate under its commerce power”: under its commerce power”:
(1) “(1) “ the use of the channels of interstate commerce”; (2) “the use of the channels of interstate commerce”; (2) “ the instrumentalities of interstate commerce, or persons or the instrumentalities of interstate commerce, or persons or
things in interstate commerce”; and (3) “things in interstate commerce”; and (3) “ those activities that substantially affect interstate commerce”). those activities that substantially affect interstate commerce”).
182 United States v. Morrison, 529 U.S. 598, 617 (2000); 182 United States v. Morrison, 529 U.S. 598, 617 (2000); see also Lopez, 514 U.S. at 567–68 (stating the need to , 514 U.S. at 567–68 (stating the need to
distinguishdistinguish “between what is truly national and what is“between what is truly national and what is truly local”). truly local”).
183 183 Morrison, 529 U.S. at 612–14. , 529 U.S. at 612–14.
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naked eye.”184 Second, the Court cautioned that “the existence of congressional findings is not naked eye.”184 Second, the Court cautioned that “the existence of congressional findings is not
sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation.”185 sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation.”185
Morrison involved a provision in the Violence Against Women Act of 1994 (VAWA) involved a provision in the Violence Against Women Act of 1994 (VAWA) that created that created
a cause of action for victims of gender-motivated violence.186 The Court observed that VAWA was a cause of action for victims of gender-motivated violence.186 The Court observed that VAWA was
“supported by numerous findings regarding the serious impact that gender-motivated violence has “supported by numerous findings regarding the serious impact that gender-motivated violence has
on victims and their families.”187 However, the Court found the relationship between gender-on victims and their families.”187 However, the Court found the relationship between gender-
motivated violence—itselfmotivated violence—itself “noneconomic” conduct—and interstate commerce too attenuated, “noneconomic” conduct—and interstate commerce too attenuated,
concluding that Congress may not regulate violence based solely on its aggregate effects on concluding that Congress may not regulate violence based solely on its aggregate effects on
interstate commerce because to interstate commerce because to ~~al ow~~allow such regulation would “completely obliterate the such regulation would “completely obliterate the
Constitution’s distinction between national and local authority.”188 Constitution’s distinction between national and local authority.”188
Outside the Commerce Clause context, there are at least three other areas where congressional Outside the Commerce Clause context, there are at least three other areas where congressional
findings may come into play in constitutional findings may come into play in constitutional ~~chal enges~~challenges. The first area involves Congress’s . The first area involves Congress’s
authority to “enforce” the Thirteenth, Fourteenth, and Fifteenth Amendments through authority to “enforce” the Thirteenth, Fourteenth, and Fifteenth Amendments through
“appropriate legislation.”189 For example, “appropriate legislation.”189 For example, ~~section~~Section 5 of the Fourteenth Amendment grants 5 of the Fourteenth Amendment grants
Congress the power to enforce the Amendment’s due process and equal protection guarantees in Congress the power to enforce the Amendment’s due process and equal protection guarantees in
the states,190 but that legislation must be appropriately limited to remedy or deter state violations the states,190 but that legislation must be appropriately limited to remedy or deter state violations
of these constitutional rights.191 The Supreme Court has said that “[s]trong measures appropriate of these constitutional rights.191 The Supreme Court has said that “[s]trong measures appropriate
to address one harm may be an unwarranted response to another, lesser one.”192 While courts to address one harm may be an unwarranted response to another, lesser one.”192 While courts
~~general y~~generally defer to Congress’s judgment about what types of measures are required, they may defer to Congress’s judgment about what types of measures are required, they may
examine legislativeexamine legislative findings to determine whether Congress has, in fact, found a “pattern or findings to determine whether Congress has, in fact, found a “pattern or
practice of unconstitutional [state] conduct” to support the legislation.193 Second, in a First practice of unconstitutional [state] conduct” to support the legislation.193 Second, in a First
Amendment free speech Amendment free speech ~~chal enge~~challenge, a court may examine legislative, a court may examine legislative findings to determine findings to determine

184 184 Id. at 612 (internal quotation marks and citations omitted). at 612 (internal quotation marks and citations omitted). But cf. Heart of Atlanta Motel, Inc. v. United States, 379 Heart of Atlanta Motel, Inc. v. United States, 379
U.S.U.S. 241, 252 (1964) (“241, 252 (1964) (“ While the Act as adopted carried no congressional findings[,] the record of its passage through While the Act as adopted carried no congressional findings[,] the record of its passage through
each house iseach house is replete with evidence of the burdensreplete with evidence of the burdens that discrimination by race or color places upon interstate that discrimination by race or color places upon interstate
commerce. . . . [Tcommerce. . . . [T ]he voluminous testimony presents overwhelming evidence that discrimination by hotels and motels ]he voluminous testimony presents overwhelming evidence that discrimination by hotels and motels
impedes interstate travel.”).impedes interstate travel.”).
185 185 Morrison, 529 U.S. at 614; , 529 U.S. at 614; see also Charles Charles ~~T iefer~~Tiefer,, After MorrisonMorrison, Can Congress Preserve Environmental Laws
from ~~Com m erce~~ Commerce Clause Challenge?, 30 ENVTL. L. REP, 30 ENVTL. L. REP . 10888, 10888 (2000) (positing that after the . 10888, 10888 (2000) (positing that after the Morrison decision decision
“congressional findings are no longer a magical“congressional findings are no longer a magical panacea” for attenuated links to interstate commerce, but offering panacea” for attenuated links to interstate commerce, but offering
reasons why congressional findingsreasons why congressional findings can still play a role in justifying environmental regulations). can still play a role in justifying environmental regulations).
186 186 Morrison, 529 U.S. at 605. , 529 U.S. at 605.
187 187 Id. at 614. at 614.
188 188 Id. at 615–17. at 615–17.
189 189 ~~See~~ See U.S. CONST. amend. XIII, § 2; id. amend. XIV,U.S. CONST. amend. XIII, § 2; id. amend. XIV, § 5; id. amend. XV, §§ 5; id. amend. XV, § ~~2; see generally CRS~~ 2; see generally CRS Report R45323, Report R45323,
Federalism -Based ~~Lim itations~~Limitations on Congressional Power: An Overview 14–20, coordinated by Andrew14–20, coordinated by Andrew Nolan and Kevin Nolan and Kevin
M. Lewis. M. Lewis.
190 U.S. CONST. amend. XIV, 190 U.S. CONST. amend. XIV, § 5. § 5.
191 City of Boerne v. Flores, 521 U.S.191 City of Boerne v. Flores, 521 U.S. 507, 530 (1997). 507, 530 (1997).
192 192 Id.
193 193 Id. at 534; at 534; see also ShelbyShelby Cty. v. Holder, 570 U.S.Cty. v. Holder, 570 U.S. 529, 553–54 (2013) (holding that Congress exceeded its powers 529, 553–54 (2013) (holding that Congress exceeded its powers
under the Fifteenth Amendment in under the Fifteenth Amendment in ~~reaut horizing~~reauthorizing the coverage formula in the Voting Rights Act in 2006, reasoning that the coverage formula in the Voting Rights Act in 2006, reasoning that
“Congress did“Congress did not use the record it compiled to shape a coverage formula not use the record it compiled to shape a coverage formula ~~gro unded~~ grounded in current conditions,” but “instead in current conditions,” but “instead
reenacted a formula basedreenacted a formula based on 40-year-old facts having no logical relation to the present day”); Bd. of on 40-year-old facts having no logical relation to the present day”); Bd. of ~~T rs~~Trs. v. Garrett, . v. Garrett,
531 U.S.531 U.S. 356, 372 (2001)356, 372 (2001) (stating that “(stating that “ Congress’ failure to mention States in its legislative findingsCongress’ failure to mention States in its legislative findings addressing addressing
discrimination in employment” in the Americans with Disabilitiesdiscrimination in employment” in the Americans with Disabilities Act (ADA) “Act (ADA) “~~ref lects~~reflects that body’s judgment that no that body’s judgment that no
pattern of unconstitutional state action had been documented”); Kimel v. Fla. Bd.pattern of unconstitutional state action had been documented”); Kimel v. Fla. Bd. of Regents, 528 U.S.of Regents, 528 U.S. 62, 91 (2000) 62, 91 (2000)
(reasoning that “Congress’ failure to uncover any significant pattern of unconstitutional [age] discrimination here (reasoning that “Congress’ failure to uncover any significant pattern of unconstitutional [age] discrimination here
confirms that Congress had no reason to believe that broad prophylactic legislation was necessary in this field”).confirms that Congress had no reason to believe that broad prophylactic legislation was necessary in this field”).
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whether the harms said to be associated with the restricted speech are documented, because a whether the harms said to be associated with the restricted speech are documented, because a
regulation of protected speech may not be based on speculative harms.194 And third, in a due regulation of protected speech may not be based on speculative harms.194 And third, in a due
process process ~~chal enge~~challenge to an abortion regulation, a court may independently review legislative to an abortion regulation, a court may independently review legislative findings findings
to assess whether the law runs afoul of the Court’s undue burden standard.195to assess whether the law runs afoul of the Court’s undue burden standard.195
In sum, while formal legislative In sum, while formal legislative findings are not required, a court may refer to congressional findings are not required, a court may refer to congressional
findings in a findings in a ~~bil~~ bill or in the legislativeor in the legislative history in evaluating the constitutionality of a law but may history in evaluating the constitutionality of a law but may
reach a different conclusion than the enacting Congress about whether the findings reach a different conclusion than the enacting Congress about whether the findings ~~actual y~~
actually support the law’s constitutionality. support the law’s constitutionality.
Definitions
Among the most important features of a Among the most important features of a ~~bil~~ bill are the terms that it defines or does not define.196 are the terms that it defines or does not define.196
Congressional drafters Congressional drafters ~~general y~~generally organize defined terms in a section or subsection of the organize defined terms in a section or subsection of the ~~bil~~
~~cal ed~~bill called “Definitions,” as i “Definitions,” as in Figure 16, rather than stating the meaning of those terms when they rather than stating the meaning of those terms when they
first appear, or each time that they appear, in the proposed law.197 For first appear, or each time that they appear, in the proposed law.197 For ~~bil s~~bills that contain that contain
freestanding provisions as opposed to amendments to existing law, definitions sections freestanding provisions as opposed to amendments to existing law, definitions sections ~~typical y~~typically
appear in the first few sections of the appear in the first few sections of the ~~bil~~ bill (e.g., following short titles or general statements of (e.g., following short titles or general statements of
purpose or intent) or toward the end of the purpose or intent) or toward the end of the ~~bil~~ bill (e.g., before any effective date).198 Language (e.g., before any effective date).198 Language
preceding the definitions preceding the definitions ~~typical y~~ typically shows where those definitions apply: for example, stating if shows where those definitions apply: for example, stating if
those definitions are limited to the section where they appear or if they apply wherever the those definitions are limited to the section where they appear or if they apply wherever the
defined terms appear in the act. Importantly, if a term used in an amendatory defined terms appear in the act. Importantly, if a term used in an amendatory ~~bil~~ bill is not defined in is not defined in
that that ~~bil~~ bill, it may , it may ~~stil~~ still be defined in the statute that the be defined in the statute that the ~~bil~~ bill is amending.199 ~~is amending.199~~

194 194 See, e.g., Ashcroft v. Free Speech Coal., 535 U.S., Ashcroft v. Free Speech Coal., 535 U.S. 234, 257 (2002) (“While the legislative findings address234, 257 (2002) (“While the legislative findings address at length at length
the problems posed by materials that look like child pornography, they are silent on the evils posed by images simply the problems posed by materials that look like child pornography, they are silent on the evils posed by images simply
pandered that way.”). pandered that way.”). Cf. GonzalesGonzales v. Raich, 545 U.S. 1, 21 (2005) (“[W]e have never required Congressv. Raich, 545 U.S. 1, 21 (2005) (“[W]e have never required Congress to make to make
particularized findings in order to legislate, absent a specialparticularized findings in order to legislate, absent a special concern such asconcern such as the protection of free speechthe protection of free speech .” (citing .” (citing
~~T urner~~Turner Broad. Sys. v. FCC, Broad. Sys. v. FCC, 512 U.S. 622, 664512 U.S. 622, 664 –68 (1994) (plurality opinion)) (other internal citations omitted); –68 (1994) (plurality opinion)) (other internal citations omitted); Turner
Broad. Sys., 512 U.S., 512 U.S. at 664 (stating that “at 664 (stating that “ [w]hen the Government defends a regulation on speech as[w]hen the Government defends a regulation on speech as a means to redress a means to redress
past harms or prevent anticipated harms,” it must “past harms or prevent anticipated harms,” it must “ demonstrate that the recited harms are real, not merely conjectural, demonstrate that the recited harms are real, not merely conjectural,
and that the regulation will in fact alleviate these harms in a direct and material way”). and that the regulation will in fact alleviate these harms in a direct and material way”).
195 195 See JuneJune Med. Servs.Med. Servs. L.L.C. v. Russo,L.L.C. v. Russo, 140 S.140 S. Ct. 2103, 2112 (2020) (plurality opinion) (stating that courts must Ct. 2103, 2112 (2020) (plurality opinion) (stating that courts must
“independently . . . review“independently . . . review the legislative findingsthe legislative findings upon whichupon which an abortion-related statute rests”) (citing Whole an abortion-related statute rests”) (citing Whole
Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2310 (2016)). Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2310 (2016)).
196 196 See MIKVA ET AL., MIKVA ET AL., supra note 7, at 85 (positing that “statutory definitions, after statutory sanctions, can be the most note 7, at 85 (positing that “statutory definitions, after statutory sanctions, can be the most
important part of a statute”).important part of a statute”).
197 197 HOLC Guide to Legislative Drafting, , supra note 18 (including “Definitions” in HOLC’s “[g]eneral template for note 18 (including “Definitions” in HOLC’s “[g]eneral template for
structuring content”); HOLC MANUAL ON DRAFTING STYLE, structuring content”); HOLC MANUAL ON DRAFTING STYLE, supra note 1, at 30 (stating that defined terms generally note 1, at 30 (stating that defined terms generally
shouldshould be listed in a single section). be listed in a single section).
198 198 Compare HOLC Guide to Legislative Drafting, , supra note 18 (placing definitions after general and special rulesnote 18 (placing definitions after general and special rules but but
before effective date and authorization of appropriations provisions in HOLC’s “[g]eneral template for structuring before effective date and authorization of appropriations provisions in HOLC’s “[g]eneral template for structuring
content”), content”), with FILSON & STROKOFF, FILSON & STROKOFF, supra note 37, at 66 (reflecting the prescription in the Senate Office of Legislative note 37, at 66 (reflecting the prescription in the Senate Office of Legislative
Counsel’sCounsel’s 1997 manual to place definitions after the findings and purposes section in single-subject1997 manual to place definitions after the findings and purposes section in single-subject legislation). legislation).
199 199 See, e.g., 5 U.S.C., 5 U.S.C. § § 105 (defining “executive agency” for purposes of the entire title, 5 U.S.C. §§105 (defining “executive agency” for purposes of the entire title, 5 U.S.C. §§ 101 et seq.). 101 et seq.).
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Figure 16. Definitions Subsection

Source: Financial ServicesFinancial Services Industry Stability Act of 2010, H.R. 4516, 111th Cong., § 1(b) (as introduced, Jan. 26, Industry Stability Act of 2010, H.R. 4516, 111th Cong., § 1(b) (as introduced, Jan. 26,
2010), https://www.congress.gov/111/bil s/hr4516/BILLS-111hr4516ih.pdf#page=2. 2010), https://www.congress.gov/111/bil s/hr4516/BILLS-111hr4516ih.pdf#page=2.
When the Bill Defines a Term Used in the Bill
When the When the ~~bil~~ bill has a definitions section, the terms defined in the has a definitions section, the terms defined in the ~~bil~~ bill carry that meaning unless carry that meaning unless
otherwise noted. This is because when a court is interpreting a federal statute, it otherwise noted. This is because when a court is interpreting a federal statute, it ~~general y~~generally gives gives
statutorily defined terms the meanings that Congress assigned to them, rather than their ordinary statutorily defined terms the meanings that Congress assigned to them, rather than their ordinary
or customary meanings in every day speech.200 For example, or customary meanings in every day speech.200 For example, Digital Realty Trust, Inc. v. Somers
concerned the meaning of the term “whistleblower” in the Dodd-Frank Act, and concerned the meaning of the term “whistleblower” in the Dodd-Frank Act, and ~~specifical y~~specifically, ,
whether an employee who reported suspected securities violations to senior management, but not whether an employee who reported suspected securities violations to senior management, but not
to the SEC, could bring a retaliationto the SEC, could bring a retaliation claim under the act.201 The law defined “whistleblower” as claim under the act.201 The law defined “whistleblower” as
an individualan individual who provides “information relating to a violation of the securities laws who provides “information relating to a violation of the securities laws to the
Commission,” (i.e., to the SEC).202 But another provision prohibited retaliation against a ,” (i.e., to the SEC).202 But another provision prohibited retaliation against a
whistleblower “because of any lawful act done by the whistleblower . . . in providing information whistleblower “because of any lawful act done by the whistleblower . . . in providing information
to the Commission . . . to the Commission . . . [or] in making disclosures that are required or protected under the
Sarbanes-Oxley Act of 2002” among other laws.203 The court of appeals declined to apply the ” among other laws.203 The court of appeals declined to apply the
“narrow” statutory definition of “whistleblower”—one who reports “to the Commission”—to this “narrow” statutory definition of “whistleblower”—one who reports “to the Commission”—to this
provision.204 Instead, it concluded that the statute protected an employee who made covered provision.204 Instead, it concluded that the statute protected an employee who made covered
disclosures to disclosures to either his employer his employer or to the SEC, because Sarbanes-Oxley required internal to the SEC, because Sarbanes-Oxley required internal
reporting before SEC reporting and because a whistleblower was “not likely to report in both reporting before SEC reporting and because a whistleblower was “not likely to report in both

200 200 See BurgessBurgess v. United States, 553 U.S.v. United States, 553 U.S. 124, 129–30 (2008) (“‘Statutory definitions control the meaning of statutory 124, 129–30 (2008) (“‘Statutory definitions control the meaning of statutory
wordswords . . . in the usual. . . in the usual case.’” (quoting Lawson v. Suwanneecase.’” (quoting Lawson v. Suwannee Fruit & S.S.Fruit & S.S. Co., 336 U.S.Co., 336 U.S. 198, 201 (1949))). 198, 201 (1949))).
201 138 S. Ct. 767, 776 (2018) (analyzing the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 201 138 S. Ct. 767, 776 (2018) (analyzing the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L.
No. 111-203, 124 Stat. 1376 (2010)). No. 111-203, 124 Stat. 1376 (2010)).
202 202 Id. at 774 (internal quotation marks omitted) (emphasis in at 774 (internal quotation marks omitted) (emphasis in Digital Realty) (quoting 15 U.S.C.) (quoting 15 U.S.C. § 78u-6(a)(6)). § 78u-6(a)(6)).
203 15 U.S.C.203 15 U.S.C. § 78u-6(h)(1)(A) (emphasis added). § 78u-6(h)(1)(A) (emphasis added).
204 Somers v. Digit. Realty 204 Somers v. Digit. Realty ~~T r~~Tr., Inc., 850 F.3d 1045, 1049., Inc., 850 F.3d 1045, 1049 –50 (9th Cir. 2017), –50 (9th Cir. 2017), rev’d, 138 S. Ct. 767. , 138 S. Ct. 767.
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ways.”205 But the Supreme Court reversed, stating that “‘[w]hen a statute includes an explicit ways.”205 But the Supreme Court reversed, stating that “‘[w]hen a statute includes an explicit
definition, we must follow that definition,’ even if it varies from a term’s ordinary meaning.”206 It definition, we must follow that definition,’ even if it varies from a term’s ordinary meaning.”206 It
reasoned that the statutory definition of whistleblower was “unequivocal” and that Congress’s reasoned that the statutory definition of whistleblower was “unequivocal” and that Congress’s
limitationlimitation of the anti-retaliation remedy to “whistleblowers” meant that “an individualof the anti-retaliation remedy to “whistleblowers” meant that “an individual ~~who fal s~~ who falls
outside [of that definition] is ineligibleoutside [of that definition] is ineligible to seek redress . . . regardless of the conduct in which that to seek redress . . . regardless of the conduct in which that
individualindividual engages.”207 In other words, “[c]ourts are not at liberty to dispense with” the specific engages.”207 In other words, “[c]ourts are not at liberty to dispense with” the specific
meaning Congress assigned to the term.208 meaning Congress assigned to the term.208
When the Bill Does Not Define a Term Used in the Bill
If a term used in a If a term used in a ~~bil~~ bill is not defined in that is not defined in that ~~bil ,~~ bill, the term may nevertheless be defined in the the term may nevertheless be defined in the
underlying statute that the underlying statute that the ~~bil~~ bill is amending. If an existing statutory definition applies to the is amending. If an existing statutory definition applies to the
division that the division that the ~~bil~~ bill is adding or amending, then that definition likelyis adding or amending, then that definition likely supplies the meaning of the supplies the meaning of the
term as used in the term as used in the ~~bil~~ bill. For example, 5 U.S.C. § 551 defines terms like “agency” and “rule” . For example, 5 U.S.C. § 551 defines terms like “agency” and “rule”
““[f]or the purpose of this subchapter”—referring to §§ 551–559, otherwise known as the ”—referring to §§ 551–559, otherwise known as the
Administrative Procedure Act (APA).209 If a Administrative Procedure Act (APA).209 If a ~~bil~~ bill used these terms in an amendment to the APA, used these terms in an amendment to the APA,
their § 551 definitions would apply unless the their § 551 definitions would apply unless the ~~bil~~ bill specified otherwise. Likewise, because the APA specified otherwise. Likewise, because the APA
is a subchapter, and because a subchapter is a division of a title, any definitions that apply “is a subchapter, and because a subchapter is a division of a title, any definitions that apply “[f]or
the purpose of this title,” such as the definition of “government corporation” in 5 U.S.C. § 103, ,” such as the definition of “government corporation” in 5 U.S.C. § 103,
would presumptively apply to the would presumptively apply to the ~~bil~~ bill’s APA amendment as ’s APA amendment as ~~wel~~ well.210.210
In In Digital Realty, discussed above, the definition of “whistleblower” was in the same section—, discussed above, the definition of “whistleblower” was in the same section—
15 U.S.C. § 78u-6—as the contested whistleblower retaliation provision.211 For the Court, it did 15 U.S.C. § 78u-6—as the contested whistleblower retaliation provision.211 For the Court, it did
not matter if the retaliation provision, viewed in isolation, suggested that “whistleblower” carried not matter if the retaliation provision, viewed in isolation, suggested that “whistleblower” carried
a broader meaning than the explicita broader meaning than the explicit definition, because the section’s text left “no doubt as to the definition, because the section’s text left “no doubt as to the
definition’s reach” by “instruct[ing] that the ‘definitio[n] definition’s reach” by “instruct[ing] that the ‘definitio[n] ~~shal~~ shall apply’ ‘[i]n this section,’ that is, apply’ ‘[i]n this section,’ that is,
throughout § 78u-6.”212throughout § 78u-6.”212
In the same way that a court gives effect to the definition that Congress chose, a court may heed In the same way that a court gives effect to the definition that Congress chose, a court may heed
any explicitany explicit ~~limitation~~ limitation on where a definition applies (e.g., to a particular section or subdivision) on where a definition applies (e.g., to a particular section or subdivision)
rather than export that definition to other parts of the law. In a 2002 decision, the Sixth Circuit rather than export that definition to other parts of the law. In a 2002 decision, the Sixth Circuit
found “[n]o statutory basis” for applying the definition of “bank” in § 581 of the Internal Revenue found “[n]o statutory basis” for applying the definition of “bank” in § 581 of the Internal Revenue
Code to a provision in § 956 of the Code.213 The court reasoned that “[i]n its first sentence, § 581 Code to a provision in § 956 of the Code.213 The court reasoned that “[i]n its first sentence, § 581
expressly states that its definition of ‘bank’ is ‘for purposes of sections 582 and 584.’”214 In the expressly states that its definition of ‘bank’ is ‘for purposes of sections 582 and 584.’”214 In the
court’s view, it was “clear” from that restriction that “Congress was not providing a general court’s view, it was “clear” from that restriction that “Congress was not providing a general

205 205 Id.
206 206 Digit. Realty Tr., Inc., 138 S., 138 S. Ct. at 776–77 (quoting BurgessCt. at 776–77 (quoting Burgess v. United States, 553 U.S.v. United States, 553 U.S. 124, 130 (2008)). 124, 130 (2008)).
207 207 Id. at 777. at 777.
208 208 Id.
209 5 U.S.C.209 5 U.S.C. § § 551 (emphasis added);551 (emphasis added); see generally Nat’l Archives & RecordsNat’l Archives & Records Admin., Admin., Federal Register:
~~Adm inistrative~~Administrative Procedure Act (5 U.S.C. Subchapter II) , https://www.archives.gov/federal-register/laws/administrative-, https://www.archives.gov/federal-register/laws/administrative-
procedure. procedure.
210 5 U.S.C. 210 5 U.S.C. § § 103 (emphasis added);103 (emphasis added); see also Off. of Law Revision Counsel,Off. of Law Revision Counsel, United States Code: 5 U.S.C. § 103, ,
uscode.house.govuscode.house.gov (last visited July 30, 2020) (stating in the “(last visited July 30, 2020) (stating in the “ Historical and Revisions Notes” for this section that § 103 Historical and Revisions Notes” for this section that § 103
waswas “supplied to avoid the necessity for defining ‘Government corporation’ and ‘Government controlled corporation’ “supplied to avoid the necessity for defining ‘Government corporation’ and ‘Government controlled corporation’
each time it iseach time it is ~~used~~ used in this title”). in this title”).
211 211 Digit. Realty Tr., Inc., 138 S., 138 S. Ct. at 777. Ct. at 777.
212 212 Id. (quoting 15 U.S.C.(quoting 15 U.S.C. § 78u-6(a) with alterations). § 78u-6(a) with alterations).
213 213 ~~T he~~The Limited, Inc. v. Commissioner, 286 F.3d 324, 337 (6th Cir. 2002). Limited, Inc. v. Commissioner, 286 F.3d 324, 337 (6th Cir. 2002).
214 214 Id. (quoting 26 U.S.C.(quoting 26 U.S.C. § 581). § 581).
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definition of ‘bank,’ but rather a specialized definition that applied only to certain statutory definition of ‘bank,’ but rather a specialized definition that applied only to certain statutory
sections.”215 sections.”215
In limited circumstances, a court In limited circumstances, a court ~~wil~~ will draw on interpretations of a similar definition in another draw on interpretations of a similar definition in another
statute to ascertain the scope of a defined term. For example, in statute to ascertain the scope of a defined term. For example, in BNSF Railway Co. v. Loos, the , the
Supreme Court considered whether a damages award for lost wages stemming from a workplace Supreme Court considered whether a damages award for lost wages stemming from a workplace
injury constituted taxable “compensation” under the Railroad Retirement Tax Act (RRTA).216 The injury constituted taxable “compensation” under the Railroad Retirement Tax Act (RRTA).216 The
RRTA defined “compensation” as “any form of money remuneration paid to an individualRRTA defined “compensation” as “any form of money remuneration paid to an individual for for
services rendered as an employee,” excepting certain forms of sick pay and disability pay.217 The services rendered as an employee,” excepting certain forms of sick pay and disability pay.217 The
Supreme Court observed that the RRTA’s definition of “compensation” was “Supreme Court observed that the RRTA’s definition of “compensation” was “~~material y~~materially
indistinguishable” from the definition of taxable “wages” used to fund Social Security benefits in indistinguishable” from the definition of taxable “wages” used to fund Social Security benefits in
the Federal Insurance Contributions Act (FICA).218 FICA defined wages “to include the Federal Insurance Contributions Act (FICA).218 FICA defined wages “to include
‘remuneration’ for ‘any service, of whatever nature, performed . . . by an employee.’”219 Because ‘remuneration’ for ‘any service, of whatever nature, performed . . . by an employee.’”219 Because
of the “textual similarity” between these definitions, the Court interpreted “compensation” by of the “textual similarity” between these definitions, the Court interpreted “compensation” by
drawing on its prior decisions on the meaning of “wages,” in which the Court construed the term drawing on its prior decisions on the meaning of “wages,” in which the Court construed the term
broadly to include back pay and severance pay (i.e., pay for periods of absence).220 The Court broadly to include back pay and severance pay (i.e., pay for periods of absence).220 The Court
thus concluded that damages for lost wages likewise qualified as taxable “compensation” under thus concluded that damages for lost wages likewise qualified as taxable “compensation” under
the RRTA.221 the RRTA.221
Although far less common, some terms are not defined in a particular statute but have default Although far less common, some terms are not defined in a particular statute but have default
definitions in what is often definitions in what is often ~~cal ed~~called “the Dictionary Act,”222 which refers to the first eight sections “the Dictionary Act,”222 which refers to the first eight sections
of the of the U.S. Code.223 In addition to setting out some general rules of construction, the Dictionary .223 In addition to setting out some general rules of construction, the Dictionary
Act defines a handful of widely used terms in federal statutes.224 For example, it defines the terms Act defines a handful of widely used terms in federal statutes.224 For example, it defines the terms
“person” and “whoever” to include “corporations, companies, associations, firms, partnerships, “person” and “whoever” to include “corporations, companies, associations, firms, partnerships,
societies, and joint stock companies, as societies, and joint stock companies, as ~~wel~~ well as individuals,” and the term “writing” to include as individuals,” and the term “writing” to include
“printing and typewriting and reproductions of visual symbols by photographing . . . or “printing and typewriting and reproductions of visual symbols by photographing . . . or
otherwise.”225 otherwise.”225

215 215 Id.
216 Burlington N. Santa Fe Ry. v. Loos, 139 S.216 Burlington N. Santa Fe Ry. v. Loos, 139 S. Ct. 893, 897 (2019). Ct. 893, 897 (2019).
217 217 Id. at 898 (quoting 26 U.S.C.at 898 (quoting 26 U.S.C. § 3231(e)(1)). § 3231(e)(1)).
218 218 Id. at 899. at 899.
219 219 Id. (quoting 26 U.S.C. (quoting 26 U.S.C. § 3121). § 3121).
220 220 Id.
221 221 Id. at 900. at 900.
222 222 E.g., United States v. Windsor, 570 U.S., United States v. Windsor, 570 U.S. 744, 752 (2013). 744, 752 (2013).
223 1 U.S.C.223 1 U.S.C. §§ §§ 1–8. 1–8.
224 224 Id.
225 225 Id. § 1. § 1.
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Terms Defined in the Dictionary Act226226
 
Association Association
 
Insane person Insane person
 
Spouse229 Spouse229
 
Child Child
 
Marriage227 Marriage227
 
Subscription Subscription
 
Company Company
 
Oath Oath
 
Sworn Sworn
 
County County
 
Officer Officer
 
Vehicle Vehicle
 
Human being Human being
 
Person228 Person228
 
Vessel Vessel
 
Individual Individual
 
Products of American Products of American fisheries fisheries
 
Whoever Whoever
 
Insane Insane
 
Signature Signature
 
Writing Writing

Because the Dictionary Act supplies Because the Dictionary Act supplies default definitions, a question of statutory interpretation can definitions, a question of statutory interpretation can
arise as to whether a Dictionary Act definition applies to a particular law. For example, in arise as to whether a Dictionary Act definition applies to a particular law. For example, in
Burwell v. Hobby Lobby Stores, Inc., the Court considered whether the Religious Freedom , the Court considered whether the Religious Freedom
Restoration Act (RFRA), which “applies to ‘a person’s’ exercise of religion,” applied to for-profit Restoration Act (RFRA), which “applies to ‘a person’s’ exercise of religion,” applied to for-profit
closely held corporations.230 Because RFRA did not define the term “person,” the Court looked to closely held corporations.230 Because RFRA did not define the term “person,” the Court looked to
section 1 of the Dictionary Act, which defines person to include “corporations.”231 section 1 of the Dictionary Act, which defines person to include “corporations.”231 ~~But section~~Section 1’s 1’s
definitions apply in “determining the meaning of any Act of Congress, definitions apply in “determining the meaning of any Act of Congress, unless the context
indicates otherwise.”232 While acknowledging that context can override the default definition, the .”232 While acknowledging that context can override the default definition, the
Justices in the majority saw “nothing in RFRA that suggest[ed] a congressional intent to depart Justices in the majority saw “nothing in RFRA that suggest[ed] a congressional intent to depart
from the Dictionary Act definition.”233 from the Dictionary Act definition.”233
When the Term Does Not Have an Applicable Statutory Definition
If a term used in a If a term used in a ~~bil~~ bill is is not defined—whether in the defined—whether in the ~~bil~~ bill itself, in the underlying statute that the itself, in the underlying statute that the
~~bil~~ bill is amending, or in the Dictionary Act—a court is amending, or in the Dictionary Act—a court ~~general y~~generally gives the term its “ordinary gives the term its “ordinary
meaning” when Congress enacted the law.234 A notable exception is when a term carries a specific meaning” when Congress enacted the law.234 A notable exception is when a term carries a specific
meaning, as explained below.meaning, as explained below.

~~226 T he~~ 226 The terms in this figure are listed in alphabetical order. Please refer to 1 U.S.C. terms in this figure are listed in alphabetical order. Please refer to 1 U.S.C. §§ §§ 1–8 for their definitions and the 1–8 for their definitions and the
rulesrules governing where these terms apply. governing where these terms apply.
227 227 But see Windsor,, 570 U.S.570 U.S. at 752, 774–75 (holding that section 3 of the Defense of Marriage Act (DOMA), which at 752, 774–75 (holding that section 3 of the Defense of Marriage Act (DOMA), which
“provide[d] a federal definition of ‘marriage’ and ‘spouse’” that did not extend to same-sex marriages, “provide[d] a federal definition of ‘marriage’ and ‘spouse’” that did not extend to same-sex marriages,
unconstitutionally deprived married, same-sex couples of liberty and equalunconstitutionally deprived married, same-sex couples of liberty and equal protection under protection under ~~th e~~the Fifth Amendment). Fifth Amendment).
228 228 See 1 U.S.C.1 U.S.C. § 1 (defining person);§ 1 (defining person); id. § 8 (including § 8 (including born-alive infants). Cf. Return Mail, Inc. v. U.S. Postal Serv., 139 S. Ct. 1853, 1861–62 (2019) (applying a “‘longstanding interpretive presumption that ‘person’ does not include the sovereign,’ and thus excludes a federal agency” to a federal statute that did not expressly define “person” (quoting Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 780–81 (2000))). ~~born-alive infants).~~
229 229 See supra note 227. note 227.
230 573 U.S. 682, 707 (2014) (quoting 42 U.S.C. §230 573 U.S. 682, 707 (2014) (quoting 42 U.S.C. § 2000bb-1(a), (b)). 2000bb-1(a), (b)).
231 231 Id. at 707–08. at 707–08.
232 232 Id. at 707 (quoting 1 U.S.C.at 707 (quoting 1 U.S.C. § 1)§ 1) (emphasis added). (emphasis added).
233 233 Id. at 708. at 708. ~~T he~~The majority rejected the context majority rejected the context -based argument of two of the dissenting Justices-based argument of two of the dissenting Justices that only natural that only natural
persons can “exercise . . . religion,” in part becausepersons can “exercise . . . religion,” in part because the Court had previously entertained free exercise claims by the Court had previously entertained free exercise claims by
nonprofit corporations. nonprofit corporations. Id. at 709–15. at 709–15.
234 234 See Kouichi Kouichi ~~T aniguchi~~Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012) (“When a term goes undefined in a v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012) (“When a term goes undefined in a
statute, we give the term its ordinary meaning.”); statute, we give the term its ordinary meaning.”); e.g., Lamar, Archer & Cofrin, LLP v. Appling, 138 S. Ct. 1752, 1759 , Lamar, Archer & Cofrin, LLP v. Appling, 138 S. Ct. 1752, 1759
(2018) (“(2018) (“ Because the Bankruptcy Code doesBecause the Bankruptcy Code does not define the wordsnot define the words ‘statement,’ ‘financial condition,’ or ‘respecting,’ we ‘statement,’ ‘financial condition,’ or ‘respecting,’ we
look to their ordinary meanings.”). look to their ordinary meanings.”). ~~Although courts often consider an undefined term’s ordinary meaning, as with all~~
~~questions of statutory interpretation, the context in which the term is used may suggest a broader or narrower~~
~~construction. See, e.g., Norton v. S. Utah Wilderness All., 542 U.S. 55, 62 –63 (2004) (interpreting “ failure to act” as~~
~~used in t he Administrative Procedure Act’s definition of “ agency action” as “ a failure to take one of the agency actions~~
~~(including their equivalents)” previously referenced in the “ agency action” definition, in part because “ the interpretive~~
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~~Understanding~~ Congressional Research Service 39 Understanding Federal Legislation

Ordinary Meaning
Ordinary meaning refers to how a term was commonly understood at the time the law was Ordinary meaning refers to how a term was commonly understood at the time the law was
enacted.235 For example, Title VII of the Civilenacted.235 For example, Title VII of the Civil Rights Act of 1964 prohibited covered employers Rights Act of 1964 prohibited covered employers
from firing or otherwise “discriminat[ing] against” an employee “because of such individual’s . . . from firing or otherwise “discriminat[ing] against” an employee “because of such individual’s . . .
sex.”236 When a dispute about the scope of this protection reached the Supreme Court in 2019, the sex.”236 When a dispute about the scope of this protection reached the Supreme Court in 2019, the
Court analyzed the meanings of “discriminate against,” “because of,” and “sex” as those terms Court analyzed the meanings of “discriminate against,” “because of,” and “sex” as those terms
were understood in 1964.237 Justice Neil Gorsuch, writing for the Court, explained the reasons for were understood in 1964.237 Justice Neil Gorsuch, writing for the Court, explained the reasons for
determining a statute’s “ordinary public meaning” at the time of enactment: determining a statute’s “ordinary public meaning” at the time of enactment:
After all, only the words on the page constitute the law adopted by Congress and approved After all, only the words on the page constitute the law adopted by Congress and approved
by the President. If judges could add to, remodel, update, or detract from old statutory terms by the President. If judges could add to, remodel, update, or detract from old statutory terms
inspired only by extratextual sources and our own imaginations, we would risk amending inspired only by extratextual sources and our own imaginations, we would risk amending
statutes outside the legislative process reserved for the people’s representatives. And we statutes outside the legislative process reserved for the people’s representatives. And we
would deny the people the right to continue relying on the original meaning of the law they would deny the people the right to continue relying on the original meaning of the law they
have counted on to settle their rights and obligations.238 have counted on to settle their rights and obligations.238
To discern the ordinary meaning of terms, the Court often consults dictionaries.239 For example, To discern the ordinary meaning of terms, the Court often consults dictionaries.239 For example,
the question in the question in Encino Motorcars, LLC v. Navarro was whether a service advisor at a car was whether a service advisor at a car
dealership—a type of customer service representative240—is a “salesman, partsman, or mechanic dealership—a type of customer service representative240—is a “salesman, partsman, or mechanic
primarily engaged in primarily engaged in ~~sel ing~~selling or servicing automobiles” under an overtime-pay exemption that or servicing automobiles” under an overtime-pay exemption that
Congress included in the applicable federal labor law in 1974.241 To determine the meaning of the Congress included in the applicable federal labor law in 1974.241 To determine the meaning of the
terms “salesman” and “servicing,” the Court consulted dictionaries from around the time those terms “salesman” and “servicing,” the Court consulted dictionaries from around the time those
terms were added to the law.242 The Court reasoned that a “service advisor is obviously a terms were added to the law.242 The Court reasoned that a “service advisor is obviously a
‘salesman’” because the “ordinary meaning of ‘salesman’ is someone who ‘salesman’” because the “ordinary meaning of ‘salesman’ is someone who ~~sel s~~sells goods or goods or
services” and service advisors “do precisely that.”243 The Court also reasoned that service services” and service advisors “do precisely that.”243 The Court also reasoned that service
advisors are “primarily engaged” in “servicing automobiles” under two dictionary definitions of advisors are “primarily engaged” in “servicing automobiles” under two dictionary definitions of
the word “servicing”—“the action of maintaining or repairing a motor vehicle” or “[t]he action of the word “servicing”—“the action of maintaining or repairing a motor vehicle” or “[t]he action of
providing a service”—because, among their other job responsibilities, they interact with providing a service”—because, among their other job responsibilities, they interact with

~~canon of ejusdem generis would attribute to the last item (‘failure to act’) the same characteristic of discreteness shared~~
~~by all the preceding items”); see also 5 U.S.C. § 551(13) (defining “agency action” to include “the whole or a part of an~~
~~agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act”).~~
~~235 MCI T elecomms. Corp. v. AT &T~~ customers, recommend repair and maintenance services, and sell new accessories or replacement parts.244 235 MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 228 (1994) (stating that “the most relevant time for Co., 512 U.S. 218, 228 (1994) (stating that “the most relevant time for
determining a statutory term’s meaning” is when the statute “became law”). determining a statutory term’s meaning” is when the statute “became law”).
236 42 U.S.C.236 42 U.S.C. § 2000e-2(a)(1). § 2000e-2(a)(1).
237 Bostock v. Clayton Cty., 140 S. Ct. 1731, 1739–41 (2020). While the meaning of “sex” was a key contested issue237 Bostock v. Clayton Cty., 140 S. Ct. 1731, 1739–41 (2020). While the meaning of “sex” was a key contested issue in in
the lower courts, the parties and the Court assumed,the lower courts, the parties and the Court assumed, for the sake of argument, that “for the sake of argument, that “ sex” referred “sex” referred “ only to biological only to biological
distinctions between male and female.” distinctions between male and female.” Id. at 1739. at 1739.
238 238 Id. at 1738. at 1738.
239 239 See, e.g., , Kouichi Taniguchi, 566 U.S., 566 U.S. at 562, 566–69 (giving the undefined term “interpreter” in the Court at 562, 566–69 (giving the undefined term “interpreter” in the Court
Interpreters Act its “ordinary or common meaning” based on the CourtInterpreters Act its “ordinary or common meaning” based on the Court ’s survey of dictionaries in use’s survey of dictionaries in use at the time of at the time of
enactment). enactment).
240 240 See generally Learn About Being a Service Advisor, INDEED.COM, https://www.indeed.com/career-, INDEED.COM, https://www.indeed.com/career-
advice/careers/whatadvice/careers/what -does-a-service-advisor-do (last visited July-does-a-service-advisor-do (last visited July 17, 2020). 17, 2020).
241 Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1138 (2018241 Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1138 (2018 ) (quoting 29 U.S.C. §) (quoting 29 U.S.C. § 213(b)(10)(A)). 213(b)(10)(A)).
242 242 Id. at 1140at 1140 (citing a 1989 edition of the (citing a 1989 edition of the Oxford English Dictionary and a 1966 edition of the and a 1966 edition of the Random House
Dictionary of the English Language).).
243 243 Id.
244 Id. (internal quotation marks and citations omitted). Congressional Research Service Congressional Research Service
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Understanding Federal Legislation

~~customers, recommend repair and maintenance services, and sel new accessories or replacement~~
~~parts.244~~
~~Specific~~ Specific Meaning
There are, however, some circumstances in which an undefined term has There are, however, some circumstances in which an undefined term has ~~acquired~~ a special a special
meaning that may differ from its ordinary meaning. This may occur if:meaning that may differ from its ordinary meaning. This may occur if:
 a word or phrase is a term of art used in a particular field  a word or phrase is a term of art used in a particular field or statutory scheme;245 ;245
 the term has a “ the term has a “~~wel~~ well-settled meaning” at common law;246 or-settled meaning” at common law;246 or
 the Supreme Court has authoritatively construed the term in a given way.247 the Supreme Court has authoritatively construed the term in a given way.247
When a term has a settled meaning or a specialized meaning in the field that the legislation When a term has a settled meaning or a specialized meaning in the field that the legislation
covers, a court may presume that Congress intended to adopt that meaning.248 For example, in covers, a court may presume that Congress intended to adopt that meaning.248 For example, in
Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., the Court considered a federal law , the Court considered a federal law
barring a person from obtaining a patent for an invention that was “on sale” before the person barring a person from obtaining a patent for an invention that was “on sale” before the person
filed for the patent.249 The Court was asked to decide whether “on sale” meant that the invention filed for the patent.249 The Court was asked to decide whether “on sale” meant that the invention
had to be availablehad to be available to the public for purchase, or whether a sale to a “third party who [was] to the public for purchase, or whether a sale to a “third party who [was]
~~contractual y~~contractually obligated to keep the invention confidential” sufficed.250 The Court began by noting obligated to keep the invention confidential” sufficed.250 The Court began by noting
that “Congress enacted [the current wording of the provision] in 2011 against the backdrop of a that “Congress enacted [the current wording of the provision] in 2011 against the backdrop of a
substantial body of law interpreting [that section’s] on-sale bar.”251 In particular, in 1998, the substantial body of law interpreting [that section’s] on-sale bar.”251 In particular, in 1998, the
Court had determined that a prior version of the on-sale bar applied when the product was “the Court had determined that a prior version of the on-sale bar applied when the product was “the
subject of a commercial offer for sale” and “ready for patenting” more than a year before the subject of a commercial offer for sale” and “ready for patenting” more than a year before the
inventor filedinventor filed for a patent.252 While the Court acknowledged that it had not precisely addressed for a patent.252 While the Court acknowledged that it had not precisely addressed
the question of public access, it stated that “our precedents suggest that a sale or offer of sale need the question of public access, it stated that “our precedents suggest that a sale or offer of sale need
not make an invention availablenot make an invention available to the public”—a suggestion “made explicit” in other, to the public”—a suggestion “made explicit” in other, ~~appel ate~~

~~244 Id. (internal quotation marks and citations omitted).~~
appellate court decisions.253 Thus, even though in some contexts “on sale” denotes an item’s availability for the public to purchase, because those words had “acquired a well-settled judicial interpretation” 245 245 See, e.g., Arlington Cent. Sch. Dist. Bd., Arlington Cent. Sch. Dist. Bd. of Educ.of Educ. v. Murphy, 548 U.S.v. Murphy, 548 U.S. 291, 297 (2006) (declining to interpret 291, 297 (2006) (declining to interpret
“costs” according to its “ordinary usage”“costs” according to its “ordinary usage” as expenses incurredas expenses incurred ~~because~~ because “‘costs’ is a term of art that generally does not “‘costs’ is a term of art that generally does not
includeinclude expert fees” (internal quotation marks and citation omitted)); Utah v. Evans, 536 U.S. 452, 467 (2002) expert fees” (internal quotation marks and citation omitted)); Utah v. Evans, 536 U.S. 452, 467 (2002)
(interpreting the statutory phrase “(interpreting the statutory phrase “ the statistical method known as ‘sampling,’” and reasoning that “the statistical method known as ‘sampling,’” and reasoning that “ the words ‘known the words ‘known
as’ and the quotation marks that surround ‘sampling’” suggestedas’ and the quotation marks that surround ‘sampling’” suggested that “sampling” was “a term of art with a technical that “sampling” was “a term of art with a technical
meaning” in the field of statistics). meaning” in the field of statistics).
246 Universal Health Servs.246 Universal Health Servs. v. United States v. United States ex rel. Escobar, 136 S.Escobar, 136 S. Ct. 1989, 1999 (2016) (reasoning that “the term Ct. 1989, 1999 (2016) (reasoning that “the term
‘fraudulent’ is a paradigmatic example of a statutory term that incorporates the common‘fraudulent’ is a paradigmatic example of a statutory term that incorporates the common -law meaning of fraud”-law meaning of fraud” and and
holding that the False Claimsholding that the False Claims Act’s reference to “Act’s reference to “ ‘false or fraudulent claims’ include[s]‘false or fraudulent claims’ include[s] more than just claims more than just claims
containing express falsehoods” becausecontaining express falsehoods” because “common-law fraud has long encompassed certain misrepresentations by “common-law fraud has long encompassed certain misrepresentations by
omission”); omission”); see also Cmty. for Creative Non-Violence v. Reid,Cmty. for Creative Non-Violence v. Reid, 490 U.S.490 U.S. 730, 739 (1989) (noting that the term “scope 730, 739 (1989) (noting that the term “scope
of employment” is a “widelyof employment” is a “widely ~~used~~ used term of art in agency law,”term of art in agency law,” referring to “common-law agency doctrine”). referring to “common-law agency doctrine”). See
generally ~~Com m on~~Common Law, BLACK’S LAW DICTIONARY (11th ed. 2019) (defined, , BLACK’S LAW DICTIONARY (11th ed. 2019) (defined, inter alia, as the “, as the “ body of lawbody of law derived derived
from judicialfrom judicial decisions,decisions, rather than from statutes or constitutions”). rather than from statutes or constitutions”).
247 247 E.g., Helsinn Healthcare S.A., Helsinn Healthcare S.A. ~~v. T eva~~ v. Teva Pharm. USA, Inc., 139 S. Pharm. USA, Inc., 139 S. Ct. 628 (2019). Ct. 628 (2019).
248 248 See Cmty. for Creative Non-Violence, 490 U.S. at 739 (stating, in a case, 490 U.S. at 739 (stating, in a case concerning the meaning of the term concerning the meaning of the term
“employee” as used“employee” as used in the Copyright Act of 1976, the “in the Copyright Act of 1976, the “ well established” principle that “well established” principle that “ [w]here Congress uses[w]here Congress uses terms terms
that have accumulated settled meaning underthat have accumulated settled meaning under . . . the common law, a court must infer, unless. . . the common law, a court must infer, unless ~~the statut e~~ the statute otherwise otherwise
dictates, that Congress means to incorporate the established meaning ofdictates, that Congress means to incorporate the established meaning of these terms” (internal quotation marks these terms” (internal quotation marks
omitted)). omitted)).
249 249 Helsinn Healthcare S.A., 139 S. Ct. at 630 (quoting 35 U.S.C., 139 S. Ct. at 630 (quoting 35 U.S.C. § § 102(a)(1)). 102(a)(1)).
250 250 Id.
251 251 Id. at 633. at 633.
252 252 Id. (quoting Pfaff v. Wells Electronics, Inc., 525 U.S. 55, 67–68 (1998))(quoting Pfaff v. Wells Electronics, Inc., 525 U.S. 55, 67–68 (1998)). 253 Id. (observing that the “Federal Circuit—which has ‘exclusive jurisdiction’ over patent appeals” had “long held that ‘secret sales’ can invalidate a patent.” (citations omitted)). .
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Understanding Federal Legislation since 1998, the Court “presume[d]” that when Congress reenacted the on-sale bar in 2011 using the same “on sale” language, it intended to adopt “the earlier judicial construction.”254 As with all questions of statutory interpretation, the context in which a term is used may also inform its meaning.255 For example, United States v. Briggs involved the meaning of the phrase “punishable by death” in a provision of the Uniform Code of Military Justice (UCMJ).256 The UCMJ’s statute-of-limitations section exempted offenses “punishable by death” from the statute’s general limitation period.257 Three former military service-members convicted of rape argued that their prosecutions were time-barred.258 They maintained that rape was not “punishable by death” because the Supreme Court held in a prior decision that a civilian’s death sentence for rape violated the Eighth Amendment’s prohibition of cruel and unusual punishment.259 Although the Briggs Court found it plausible that “punishable by death” could mean “capable of punishment” under “all applicable law” (including the Constitution as interpreted by the Supreme Court), it concluded that “context” favored a different interpretation.260 Being a uniform code, the Court explained, the UCMJ was “a natural referent” for deciding which crimes were capital offenses.261 Because a different section of the UCMJ stated that rape could be “punished by death,”262 rape was “punishable by death” within the meaning of the UCMJ’s statute-of-limitations provision.263 Thus, the Court concluded, “‘punishable by death’ is a term of art that is defined by the provisions of the UCMJ specifying the punishments for the offenses it outlaws.”264 Substantive Provisions The substantive content in a bill~~Federal Legislation~~

~~court decisions.253 Thus, even though in some contexts “on sale” denotes an item’s availability for~~
~~the public to purchase, because those words had “acquired a wel -settled judicial interpretation”~~
~~since 1998, the Court “presume[d]” that when Congress reenacted the on-sale bar in 2011 using~~
~~the same “on sale” language, it intended to adopt “the earlier judicial construction.”254~~
~~Substantive Provisions~~
~~The substantive content in a bil~~ —the provisions that have “the purpose and effect of altering the —the provisions that have “the purpose and effect of altering the
legal rights, duties, and relations of persons”legal rights, duties, and relations of persons”~~255~~265 and the potential to bind third parties—can take 254 Id. at 633–34. The Court reached this conclusion even though Congress added “a new catchall clause (‘or otherwise available to the public’),” reasoning that the addition of this language was “simply not enough of a change for [the Court] to conclude that Congress intended to alter the meaning of the reenacted term ‘on sale.’” Id. at 634. 255 See, e.g., Fed. Republic of Germany v. Philipp, 141 S. Ct. 703, 711–15 (2021) (interpreting “international law” in the phrase “rights in property taken in violation of international law” in the Foreign Sovereign Immunities Act to refer to the international law of expropriation, not international human rights law, based in large part on the context of the language (quoting 28 U.S.C. § 1605(a)(3))); County of Maui v. Haw. Wildlife Fund, 140 S. Ct. 1462, 1470 (2020) (observing that the “word ‘from’ is broad in scope, but context often imposes limitations”); Norton v. S. Utah Wilderness All., 542 U.S. 55, 62–63 (2004) (interpreting “failure to act” as used in the Administrative Procedure Act’s definition of “agency action” as “a failure to take one of the agency actions” previously referenced in the “agency action” definition, in part because “the interpretive canon of ejusdem generis would attribute to the last item (‘failure to act’) the same characteristic of discreteness shared by all the preceding items”); see also 5 U.S.C. § 551(13) (defining “agency action” to include “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act”). 256 United States v. Briggs, 141 S. Ct. 467, 470 (2020) (quoting 10 U.S.C. § 843(a) (1988 ed.)). 257 Id. 258 Id. at 469–70. 259 Id. at 470 (citing Coker v. Georgia, 433 U.S. 584 (1977)). 260 Id. at 469–70. 261 Id. at 470. 262 See 10 U.S.C. § 920(a) (1982 and 1994 eds.). 263 Briggs, 141 S. Ct. at 471. The Court did not decide whether sentencing a military service-member to death following a rape conviction under the UCMJ would violate the Eighth Amendment, describing the law on the question as unsettled. Id. at 471–72. 264 Id. at 473. 265 INS v. Chadha, 462 U.S. 919, 952 (1983) (describing what makes a congressional action “legislative” in nature and thus subject to the Constitution’s requirements of bicameralism and presentment). Congressional Research Service 42 Understanding Federal Legislation ~~and the potential to bind third parties—can take~~
different forms. different forms.~~256 The fol owing~~266 The following is a non-exhaustive list of ways to characterize and categorize a is a non-exhaustive list of ways to characterize and categorize a
~~bil~~ bill’s substantive provisions: ’s substantive provisions:
1. requirements (e.g., mandating that government officials or private entities 1. requirements (e.g., mandating that government officials or private entities
comply with certain standards); comply with certain standards);
2. prohibitions (e.g., banning or restricting certain conduct); 2. prohibitions (e.g., banning or restricting certain conduct);
3. delegations (e.g., granting an agency rulemaking authority); 3. delegations (e.g., granting an agency rulemaking authority);
4. enforcement mechanisms (e.g., specifying civil, criminal, or administrative 4. enforcement mechanisms (e.g., specifying civil, criminal, or administrative
penalties for violations of the statute, who can bring claims, and in what forum); penalties for violations of the statute, who can bring claims, and in what forum);
and and
5. oversight provisions (e.g., requiring an agency to study an issue or submit an 5. oversight provisions (e.g., requiring an agency to study an issue or submit an
annual report to Congress). annual report to Congress).
Substantive provisions may implicate a host of legal considerations, such as compliance with Substantive provisions may implicate a host of legal considerations, such as compliance with
constitutional standards,constitutional standards,~~257~~267 the availability the availability of funding (i.e., appropriations),of funding (i.e., appropriations),~~258~~268 or the retroactivity or the retroactivity
of laws creating liabilityof laws creating liability or penalties.or penalties.~~259~~269 They may also implicate questions of timing and They may also implicate questions of timing and
procedure, which may or may not be addressed in the applicable legislation.procedure, which may or may not be addressed in the applicable legislation.~~260~~
270 Because the topics of legislation vary widely—each with their own set of unique legal and policy Because the topics of legislation vary widely—each with their own set of unique legal and policy
considerations—this section highlights a few background principles that may help to inform a considerations—this section highlights a few background principles that may help to inform a

~~253 Id. (observing that the “Federal Circuit —which has ‘exclusive jurisdiction’ over patent appeals” had “long held that~~
~~‘secret sales’ can invalidate a patent.” (citations omitted)).~~
~~254 Id. at 633–34. T he Court reached this conclusion even though Congress added “a new catchall clause (‘or otherwise~~
~~available to the public’),” reasoning that the addition of this language was “simply not enough of a change for [the~~
~~Court] to conclude that Congress intended to alter the meaning of the reenacted term ‘on sale.’” Id. at 634.~~
~~255 INS v. Chadha, 462 U.S. 919, 952 (1983) (describing what makes a congressional action “legislative” in nature and~~
~~thus subject to the Constitution’s requirements of bicameralism and presentment).~~
~~256~~reader’s review of substantive bill provisions. It begins by identifying how substantive provisions are typically organized: as general rules and exceptions. It then discusses legal principles related to the creation of rights and remedies. General Rules and Exceptions Many times, substantive provisions are divided into general rules and exceptions.271 Often, but not always,272 the exceptions are listed directly below the general rule that they modify, as in the 266 See FILSON & STROKOFF, FILSON & STROKOFF, supra note 37, at 140 (describing “the central part” of a bill as “the part that actually note 37, at 140 (describing “the central part” of a bill as “the part that actually
carries out the sponsor’s basic policy”); carries out the sponsor’s basic policy”); id. at 141 (stating that the “key operating provisions” of a bill “can take many at 141 (stating that the “key operating provisions” of a bill “can take many
forms becauseforms because what they do and howwhat they do and how they do it willthey do it will ~~depend~~ depend upon the nature and scope of the bill’supon the nature and scope of the bill’s principal objective principal objective
and upon the kinds of things that have to be done in order to achieve it”).and upon the kinds of things that have to be done in order to achieve it”).
~~257 See, e.g., CRS Legal Sidebar LSB10507,~~ ~~Supreme Court Rules CFPB Structure Unconstitutional: Implications for~~
~~Congress, by Jacob D. Shelly.~~
~~258 See generally CRS~~ 267 See generally Table of Laws Held Unconstitutional in Whole or in Part by the Supreme Court, CONSTITUTION ANNOTATED, https://constitution.congress.gov/resources/unconstitutional-laws/ (last visited Sept. 24, 2021). 268 See generally CRS Report RS20371, Report RS20371, Overview of the Authorization-Appropriations Process, by Bill, by Bill Heniff Jr.; CRS Heniff Jr.; CRS
Report R42098, Report R42098, Authorization of Appropriations: Procedural and Legal Issues, coordinated by Edward, coordinated by Edward C. Liu. C. Liu.
~~259 See generally CRS~~ 269 See generally CRS In Focus IF11293, In Focus IF11293, Retroactive Legislation: A Primer for Congress,, by Joanna R. Lampe. by Joanna R. Lampe.
~~260 See CRS~~ 270 See CRS Report R45336, Report R45336, Agency Delay: Congressional and Judicial Means to Expedite Agency Rulemaking 4, 6, 4, 6,
by Kevin J. Hickey (discussingby Kevin J. Hickey (discussing the tools Congress may usethe tools Congress may use to encourage timely agency action, including “to encourage timely agency action, including “ nonbinding nonbinding
time frames,” “hard statutory deadline[s],” and deadlinestime frames,” “hard statutory deadline[s],” and deadlines ~~backed~~ backed by statutory penalties); CRSby statutory penalties); CRS Report R41546, Report R41546, A Brief
Overview ~~of Rulem aking~~ of Rulemaking and Judicial Review 4, by 4, by ~~T odd~~Todd Garvey (“ Garvey (“ In providing rulemaking authority to an agency, In providing rulemaking authority to an agency,
CongressCongress may direct the agency to follow specific procedural requirements in addition to those required by the informal may direct the agency to follow specific procedural requirements in addition to those required by the informal
rulemaking procedures of the [Administrative Procedure Act]rulemaking procedures of the [Administrative Procedure Act] ~~.”).~~
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~~link to page 48 link to page 49 link to page 49~~ ~~Understanding Federal Legislation~~

~~reader’s review of substantive bil provisions. It begins by identifying how substantive provisions~~
~~are typical y organized: as general rules and exceptions. It then discusses legal principles related~~
~~to the creation of rights and remedies.~~
~~General Rules and Exceptions~~
~~Many times, substantive provisions are divided into general rules and exceptions.261 Often, but~~
~~not always,262 the exceptions are listed directly below the general rule that they modify, as in the~~
~~example in Figure 17. Headings such as “Exceptions” or “Exemptions,” or language such as~~
~~“except as provided in,” may alert the reader to an exception or exclusion.263 Congressional~~
~~drafters may also include broader limitations on a bil ’s scope in a section entitled~~
~~“Applicability.”264 In a similar vein, provisos—typical y introduced with “provided that”—may~~
~~alert the reader to an exception, a condition, or a special or supplemental rule, depending on the~~
~~context.265 Attention to each provision is important because some exceptions or limitations have~~
~~their own exceptions, as shown in Figure 18.~~

~~261~~.”). 271 See HOLC Guide to Legislative Drafting, , supra note 18 (describingnote 18 (describing the office’s “general template for structuring the office’s “general template for structuring
content” in a bill, beginningcontent” in a bill, beginning with the “general rule,” followedwith the “general rule,” followed by any “exceptions” or “special rules”). Although HOLC by any “exceptions” or “special rules”). Although HOLC
distinguishesdistinguishes between between exceptions (“ (“ the persons or things to which the [general rule] doesthe persons or things to which the [general rule] does not apply”) and not apply”) and special rules
(“the persons or things to which the [general rule] applies in a different way or for which(“the persons or things to which the [general rule] applies in a different way or for which there is a different [rule]”), there is a different [rule]”),
this report refers to these provisions collectively as this report refers to these provisions collectively as exceptions for simplicity. for simplicity.
~~262~~ 272 See, e.g., Pain-Capable Unborn Child Protection Act, S. 1922, 115th Cong. § 3(a) (as introduced, Oct. 5, 2017), , Pain-Capable Unborn Child Protection Act, S. 1922, 115th Cong. § 3(a) (as introduced, Oct. 5, 2017),
https://www.congress.gov/115/bills/s1922/BILLS-115s1922is.pdf (includinghttps://www.congress.gov/115/bills/s1922/BILLS-115s1922is.pdf (including in proposed § 1532(b)(2)(I), a in proposed § 1532(b)(2)(I), a
subparagraph of “additional exceptions and requirements” applicable to certain other subparagraphs). subparagraph of “additional exceptions and requirements” applicable to certain other subparagraphs).
~~263 T he terms “ exception” and “exemption” are generally synonymous and are often used interchangeably.~~
~~See Exem ption, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “ exemption” as “~~ Congressional Research Service 43 link to page 50 link to page 51 link to page 51 Understanding Federal Legislation example in Figure 17. Headings such as “Exceptions” or “Exemptions,” or language such as “except as provided in,” may alert the reader to an exception or exclusion.273 Congressional drafters may also include broader limitations on a bill’s scope in a section entitled “Applicability.”274 In a similar vein, provisos—typically introduced with “provided that”—may alert the reader to an exception, a condition, or a special or supplemental rule, depending on the context.275 Attention to each provision is important because some exceptions or limitations have their own exceptions, as shown in Figure 18. 273 The terms “exception” and “exemption” are generally synonymous and are often used interchangeably. See Exemption, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “exemption” as “[f]reedom from a duty, liability, [f]reedom from a duty, liability,
or other requirement; an exception”); or other requirement; an exception”); Exception,, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “ statutory statutory
exception” as a “provision in a statute exempting certain persons or conduct from the statute’s operation”); exception” as a “provision in a statute exempting certain persons or conduct from the statute’s operation”);
2A SUTHERLAND STATUTORY CONSTRUCTION § 47:11 (7th ed. 2019) (“2A SUTHERLAND STATUTORY CONSTRUCTION § 47:11 (7th ed. 2019) (“ A true statutory exception exists only to exempt A true statutory exception exists only to exempt
something which wouldsomething which would otherwise beotherwise be covered by an act.”). But one or the other term may have gained prominence in covered by an act.”). But one or the other term may have gained prominence in
certain contexts. certain contexts. See, e.g., 3A SUTHERLAND STATUTORY CONSTRUCTION § 66:9 (8th ed. 2019) (“, 3A SUTHERLAND STATUTORY CONSTRUCTION § 66:9 (8th ed. 2019) (“ Exemptions from Exemptions from
taxation have an ancient history, as old as taxation have an ancient history, as old as ~~taxatio n~~taxation itself.”). itself.”).
~~264~~ 274 See, e.g., Figure 18. .
~~265~~275 See Proviso, BLACK’S LAW DICTIONARY (11th ed. 2019) (stating that “[i]n drafting,” a proviso is “a provision that, BLACK’S LAW DICTIONARY (11th ed. 2019) (stating that “[i]n drafting,” a proviso is “a provision that
beginsbegins with the wordswith the words provided that and supplies and supplies a condition, exception, or addition”); 1A SUTHERLAND STATUTORY a condition, exception, or addition”); 1A SUTHERLAND STATUTORY
CONSTRUCTION § 20:22 (7th ed. 2019) (cautioning that “CONSTRUCTION § 20:22 (7th ed. 2019) (cautioning that “ provided” can “provided” can “ either introduce a condition or exception, and either introduce a condition or exception, and
be synonymous with ‘if,’ or it can be usedbe synonymous with ‘if,’ or it can be used as as a conjunction meaning ‘and,’” and positing that “the word ‘provided’ has a conjunction meaning ‘and,’” and positing that “the word ‘provided’ has
so frequently been usedso frequently been used as as a conjunctive to add amendments, particularly those made on the floor of the House during a conjunctive to add amendments, particularly those made on the floor of the House during
the passage of the act, that there is no assurance a court can determine whether the legislative intent was to create a the passage of the act, that there is no assurance a court can determine whether the legislative intent was to create a
limitation on the general languagelimitation on the general language of the act or to add independent and supplementary regulation”). of the act or to add independent and supplementary regulation”).
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Figure 17. Exceptions to a General Rule

Source: SAFE Justice Act, H.R. 4261, 115th Cong., § 502 (as introduced, Nov. 6, 2017), SAFE Justice Act, H.R. 4261, 115th Cong., § 502 (as introduced, Nov. 6, 2017),
https://www.congress.gov/115/bil s/hr4261/BILLS-115hr4261ih.pdf#page=77. https://www.congress.gov/115/bil s/hr4261/BILLS-115hr4261ih.pdf#page=77.
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Figure 18. Exceptions to Exceptions

Source: Farm Dust Regulation Prevention Act of 2011,Farm Dust Regulation Prevention Act of 2011, S. 1528, 112th Cong., § 2 (as introduced, Sept. 8, 2011), S. 1528, 112th Cong., § 2 (as introduced, Sept. 8, 2011),
https://www.congress.gov/112/bil s/s1528/BILLS-112s1528is.pdf#page=2.https://www.congress.gov/112/bil s/s1528/BILLS-112s1528is.pdf#page=2.
While, at times, the Supreme Court has concluded that certain statutory exceptions should be While, at times, the Supreme Court has concluded that certain statutory exceptions should be
narrowly construed, a court narrowly construed, a court ~~normal y~~normally has “no license to give [statutory] exemption[s] anything has “no license to give [statutory] exemption[s] anything
but a fair reading.”but a fair reading.”~~266~~276 As with other questions of statutory interpretation, that reading depends on As with other questions of statutory interpretation, that reading depends on
the exception’s text, read in the context of the surrounding provisions and the legislation as a the exception’s text, read in the context of the surrounding provisions and the legislation as a

~~266~~ 276 Food Mktg. Inst. v. Argus Food Mktg. Inst. v. Argus Leader Media, 139 S.Leader Media, 139 S. Ct. 2356, 2366 (2019) (quoting Encino Motorcars LLC v. Navarro, Ct. 2356, 2366 (2019) (quoting Encino Motorcars LLC v. Navarro,
138 S.138 S. Ct. 1134, 1142 (2018)); Ct. 1134, 1142 (2018)); see also Milner v. Dep’t of the Navy, 562 U.S. 562, 571–72 (2011) (observing that the Milner v. Dep’t of the Navy, 562 U.S. 562, 571–72 (2011) (observing that the
Court has “often noted” the Freedom of Information Act’s (FOIA’s) “‘goal of broad disclosure’Court has “often noted” the Freedom of Information Act’s (FOIA’s) “‘goal of broad disclosure’ and insisted that the and insisted that the
exemptions be ‘given a narrow compass,’” but construing its second exemption with the “‘narrower reach’ Congress exemptions be ‘given a narrow compass,’” but construing its second exemption with the “‘narrower reach’ Congress
intended through the simple device of confining the provision’s meaning to its words”intended through the simple device of confining the provision’s meaning to its words” (internal citations omitted)).(internal citations omitted)).
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whole. whole.~~267~~277 This analysis may be informed by applicable canons of construction, This analysis may be informed by applicable canons of construction,~~268~~278 or the purpose or the purpose
of the statute as garnered from the statutory text or legislative history.of the statute as garnered from the statutory text or legislative history.~~269~~279 Although the Roberts Although the Roberts
Court has cautioned against elevating statements of statutory purpose over an exception’s text,Court has cautioned against elevating statements of statutory purpose over an exception’s text,~~270~~280
the Court has sometimes declined to give broad effect to the literal language of an exception if the Court has sometimes declined to give broad effect to the literal language of an exception if
doing so would “contravene the statutory design.”doing so would “contravene the statutory design.”~~271~~
281 How broadly a court interprets an exception can also be informed by the interplay between the How broadly a court interprets an exception can also be informed by the interplay between the
exception and the general rule. Where “a general statement of policy is qualifiedexception and the general rule. Where “a general statement of policy is qualified by an by an
exception,” the Supreme Court “exception,” the Supreme Court “~~usual y~~usually read[s] the exception narrowly in order to preserve the read[s] the exception narrowly in order to preserve the
primary operation of the provision.”primary operation of the provision.”~~272~~282 This is not to say that a court This is not to say that a court ~~wil give al~~ will give all exceptions their exceptions their
narrowest, plausible reading; only that a court may hesitate to read an exception in a way that narrowest, plausible reading; only that a court may hesitate to read an exception in a way that
~~“swal ows~~“swallows” the general rule.” the general rule.~~273~~
283 Rights, Remedies, and Enforcement
In practice, a requirement may not compel, and a prohibition may not deter, the specified conduct In practice, a requirement may not compel, and a prohibition may not deter, the specified conduct
without an enforcement mechanism to promote compliance.without an enforcement mechanism to promote compliance.~~274~~284 Sometimes Congress uses its Sometimes Congress uses its
oversight powers to assess compliance, such as when it asks an agency to report back to Congress oversight powers to assess compliance, such as when it asks an agency to report back to Congress
on an issue that it has entrusted to agency implementation.on an issue that it has entrusted to agency implementation.~~275~~285 In other situations, there are In other situations, there are
established statutory frameworks that provide remedies for aggrieved parties. For example, if a established statutory frameworks that provide remedies for aggrieved parties. For example, if a

~~267~~ 277 See, e.g., Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018) (reasoning that because the Fair Labor , Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018) (reasoning that because the Fair Labor
StandardsStandards Act gave “no ‘textual indication’ that its exemptions should be construed narrowly, ‘there is no reason to Act gave “no ‘textual indication’ that its exemptions should be construed narrowly, ‘there is no reason to
give [them] anything other than a fair (rather than a ‘narrow’) interpretation’” (give [them] anything other than a fair (rather than a ‘narrow’) interpretation’” (~~quotin g~~quoting ANTONIN SCALIA & BRYAN A. ANTONIN SCALIA & BRYAN A.
GARNER, READING LAW: GARNER, READING LAW: ~~T HE~~THE INTERPRETATION OF LEGAL INTERPRETATION OF LEGAL ~~T EXTS~~TEXTS 363 (2012))); 363 (2012))); Milner, 562 U.S. at 569 (explaining, in , 562 U.S. at 569 (explaining, in
reference to FOIA, that the Court’s “reference to FOIA, that the Court’s “ consideration of [an exemption’s] scope starts with its text”).consideration of [an exemption’s] scope starts with its text”).
~~268~~ 278 See, e.g.,, Fla. Dep’t of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 50Fla. Dep’t of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 50 –51 (2008) (concluding, based–51 (2008) (concluding, based on the on the
“federalism canon,” that the Court must construe the Bankruptcy Code’s stamp-tax exemption “narrowly,” to avoid “federalism canon,” that the Court must construe the Bankruptcy Code’s stamp-tax exemption “narrowly,” to avoid
“‘recogniz[ing] an exemption from state taxation that Congress has not clearly expressed’” (emphasis removed) “‘recogniz[ing] an exemption from state taxation that Congress has not clearly expressed’” (emphasis removed)
(quoting Cal. State Bd.(quoting Cal. State Bd. of Equalization v. Sierraof Equalization v. Sierra Summit, 490 U.S.Summit, 490 U.S. 844, 851–52 (1989))). 844, 851–52 (1989))).
~~269~~279 See, e.g.,, Dolan v. U.S.Dolan v. U.S. Postal Serv., 546 U.S. 481, 492 (2006) (reasoning that “‘unduly generous interpretations of Postal Serv., 546 U.S. 481, 492 (2006) (reasoning that “‘unduly generous interpretations of
the exceptions [in the Federal the exceptions [in the Federal ~~T ort~~Tort Claims Act] run the risk of defeating the central purpose of the statute,’ which Claims Act] run the risk of defeating the central purpose of the statute,’ which
‘waives‘waives the Government’s immunity from suit in sweepingthe Government’s immunity from suit in sweeping language’”language’” (internal citations omitted). (internal citations omitted).
~~270~~280 See, e.g., , Food Mktg. Inst., 139 S. Ct. at 2366 (“[J]ust as we, 139 S. Ct. at 2366 (“[J]ust as we cannot properly cannot properly expand [FOIA’s fourth exemption] [FOIA’s fourth exemption]
beyond what its terms permitbeyond what its terms permit , we cannot arbitrarily , we cannot arbitrarily constrict it either by adding it either by adding limitations found nowhere in its terms.” limitations found nowhere in its terms.”
(internal citation omitted) (quoting (internal citation omitted) (quoting Encino Motorcars, LLC,, 138 S. Ct. at 1142)). 138 S. Ct. at 1142)).
~~271~~281 See, e.g., Maracich v. Spears,, Maracich v. Spears, 570 U.S.570 U.S. 48, 59–61 (2013) (acknowledging that an exception in the Driver’s Privacy 48, 59–61 (2013) (acknowledging that an exception in the Driver’s Privacy
Protection Act of 1994 [DPPA] allowing the disclosureProtection Act of 1994 [DPPA] allowing the disclosure of information “of information “ ‘for use in connection with any civil, criminal, ‘for use in connection with any civil, criminal,
administrative, or arbitral proceeding’” wasadministrative, or arbitral proceeding’” was “susceptible to a broad“susceptible to a broad interpretation” that included attorney solicitation, interpretation” that included attorney solicitation,
but reasoning that if the exception “were read to permit disclosure of personal information whenever any connection but reasoning that if the exception “were read to permit disclosure of personal information whenever any connection
between the protected information and a potential legal dispute couldbetween the protected information and a potential legal dispute could be be shown, it wouldshown, it would undermine in a substantial undermine in a substantial
wayway the DPPA’s purpose of protecting an individual’sthe DPPA’s purpose of protecting an individual’s right to privacy in right to privacy in ~~h is~~his or her motor vehicle records”). or her motor vehicle records”).
~~272~~ 282 Comm’r v. Clark, 489 U.S. 726, 739 (1989). Comm’r v. Clark, 489 U.S. 726, 739 (1989). But see City of ColumbusCity of Columbus v. Oursv. Ours ~~Garage~~ Garage & Wrecker Serv., 536 U.S. & Wrecker Serv., 536 U.S.
424, 440 (2002) (reasoning that a “424, 440 (2002) (reasoning that a “ congressional decision to enact both a general policy that furthers a congressional decision to enact both a general policy that furthers a ~~part icular~~particular goal goal
and a specific exception that might tend against that goal does not invariably call for the narrowest and a specific exception that might tend against that goal does not invariably call for the narrowest ~~possibl e~~possible
construction of the exception,” particularly where the rule and the exception “do not necessarily conflict”). construction of the exception,” particularly where the rule and the exception “do not necessarily conflict”).
~~273~~283 Knight v. Comm’r, 552 U.S. 181, 191 (2008). Knight v. Comm’r, 552 U.S. 181, 191 (2008).
~~274~~284 See H. OFF. OF LEG. COUNSEL, INTRODUCTION TO LEGISLATIVE DRAFTING 6 (2019), H. OFF. OF LEG. COUNSEL, INTRODUCTION TO LEGISLATIVE DRAFTING 6 (2019),
https://legcounsel.house.gov/sites/legcounsel.house.gov/files/documents/intro_to_drafting.pdf (identifying “https://legcounsel.house.gov/sites/legcounsel.house.gov/files/documents/intro_to_drafting.pdf (identifying “ [q]uestions [q]uestions
of enforcement” among the “key questions [that] should be answeredof enforcement” among the “key questions [that] should be answered to produce a draft that accomplishes the intended to produce a draft that accomplishes the intended
policy and avoids unintended consequences”). policy and avoids unintended consequences”).
~~275~~ 285 See generally CRS CRS Report RL30240, Report RL30240, Congressional Oversight Manual, coordinated by Christopher M. Davis, , coordinated by Christopher M. Davis,
Walter J. Oleszek, and Ben Wilhelm; CRSWalter J. Oleszek, and Ben Wilhelm; CRS In FocusIn Focus IF10015, IF10015, Congressional Oversight and Investigations, by , by ~~T odd~~Todd
Garvey and Walter J. Oleszek. Garvey and Walter J. Oleszek.
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~~bil~~ bill authorizes an agency to adopt rules to implement its requirements, an entity affected by that authorizes an agency to adopt rules to implement its requirements, an entity affected by that
agency’s rulemaking may be able to agency’s rulemaking may be able to ~~chal enge~~challenge the rule as violating the Administrative Procedure the rule as violating the Administrative Procedure
Act (APA) if the rule exceeded the agency’s authority or was “arbitrary and capricious.”Act (APA) if the rule exceeded the agency’s authority or was “arbitrary and capricious.”~~276~~
286 Where an existing remedy or enforcement regime does not apply, Congress may need to specify Where an existing remedy or enforcement regime does not apply, Congress may need to specify
the enforcement mechanism in the the enforcement mechanism in the ~~bil~~ bill itself.itself.~~277~~287 For example, if Congress prohibits a private party For example, if Congress prohibits a private party
from engaging in certain conduct, the prohibition, while from engaging in certain conduct, the prohibition, while ~~stil~~ still a law, may not achieve its intended a law, may not achieve its intended
purpose without an administrative, civil, or criminal penalty to hold the private party purpose without an administrative, civil, or criminal penalty to hold the private party
accountable.accountable.~~278~~288 Subject to certain constitutional limitations, Subject to certain constitutional limitations,~~279~~289 this penalty can take many forms, this penalty can take many forms,
including the termination of federal funding (in the case of funding recipients), civil money including the termination of federal funding (in the case of funding recipients), civil money
damages, or criminal fines or imprisonment.damages, or criminal fines or imprisonment.~~280~~290 The The ~~bil~~ bill may authorize the government or private may authorize the government or private
parties to initiateparties to initiate a civil cause of action to sue for relief.a civil cause of action to sue for relief.~~281~~291 Or it may require a private party to Or it may require a private party to
“exhaust” the party’s claim before a federal agency,“exhaust” the party’s claim before a federal agency,~~282~~292 sometimes specifying which courts have sometimes specifying which courts have
jurisdiction to hear appeals from adverse agency decisions.jurisdiction to hear appeals from adverse agency decisions.~~283~~293 Whether the remedy is exclusive, or Whether the remedy is exclusive, or
in addition to state law remedies, may be addressed in a preemption clause, discussed in the next in addition to state law remedies, may be addressed in a preemption clause, discussed in the next
section.section.~~284~~294
Whether a Whether a ~~bil~~ bill creates a private right of action (i.e., creates a private right of action (i.e., ~~al owing~~allowing an aggrieved individual an aggrieved individual or entity, as or entity, as
opposed to the government, to bring suit), depends primarily on the opposed to the government, to bring suit), depends primarily on the ~~bil~~ bill’s language. A ’s language. A ~~bil~~ bill written written
for the benefit or protection of certain individuals or entities—even language that ostensibly for the benefit or protection of certain individuals or entities—even language that ostensibly
creates rights for those persons—may not help the intended beneficiaries without an explicit creates rights for those persons—may not help the intended beneficiaries without an explicit
remedy.remedy.~~285~~295 This is because, “[l]ike substantive federal law itself, private rights of action to enforce This is because, “[l]ike substantive federal law itself, private rights of action to enforce

~~276~~ 286 See generally CRS CRS In Focus IF10003, In Focus IF10003, An Overview of Federal Regulations and the Rulemaking Process, by Maeve , by Maeve
P. Carey; CRSP. Carey; CRS Legal SidebarLegal Sidebar LSB10497, LSB10497, ~~Suprem e~~Supreme Court: DACA Rescission Violated the APA 3, by Ben Harrington 3, by Ben Harrington
(“(“~~T he~~The APA provides that agency actions are unlawful if they are ‘arbitrary and capricious’—a standard that requires APA provides that agency actions are unlawful if they are ‘arbitrary and capricious’—a standard that requires
federal agenciesfederal agencies to provide satisfactory explanations for their decisions, includingto provide satisfactory explanations for their decisions, including decisions to change existing decisions to change existing
policies.”).policies.”).
~~277~~ 287 See H. OFF. OF LEG. COUNSEL, INTRODUCTION TO LEGISLATIVE DRAFTING, H. OFF. OF LEG. COUNSEL, INTRODUCTION TO LEGISLATIVE DRAFTING, supra note note ~~274~~284, at 6. , at 6.
~~278~~288 See id. ~~at 6~~ (encouraging drafters to ask whether “people [will] be(encouraging drafters to ask whether “people [will] be encouraged to follow the policy through encouraged to follow the policy through
incentives or punished for violating it (carrots versus sticks)”). incentives or punished for violating it (carrots versus sticks)”).
~~279~~289 See, e.g., CRS, CRS In FocusIn Focus IF11293, IF11293, Retroactive Legislation: A Primer for Congress, by Joanna R. Lampe. , by Joanna R. Lampe.
~~280~~290 See H. OFF. OF LEG. COUNSEL, INTRODUCTION TO LEGISLATIVE DRAFTING, H. OFF. OF LEG. COUNSEL, INTRODUCTION TO LEGISLATIVE DRAFTING, supra note note ~~274~~284, at 6 (encouraging drafters , at 6 (encouraging drafters
to ask whether any specifiedto ask whether any specified penalties shouldpenalties should be criminal or civil). be criminal or civil).
~~281~~ 291 See Stokes v. Sw.Stokes v. Sw. Airlines, 887 F.3d 199, 201 (5th Cir. 2018) (“Often, Congress expressly provides for private civil-Airlines, 887 F.3d 199, 201 (5th Cir. 2018) (“Often, Congress expressly provides for private civil-
suit enforcement. Other times, however, Congress specifiessuit enforcement. Other times, however, Congress specifies only criminal-law enforcement, or leaves civil enforcement only criminal-law enforcement, or leaves civil enforcement
in the hands of administrative agencies. Courts are boundin the hands of administrative agencies. Courts are bound to follow Congress’sto follow Congress’s choices in this arena, and boundchoices in this arena, and bound to to
ascertain those choices through the tools of statutory interpretation.ascertain those choices through the tools of statutory interpretation. ”). ”).
~~282~~292 See, e.g., Darby v. Cisneros, 509 U.S., Darby v. Cisneros, 509 U.S. 137, 147 (1993) (stating that “Section 10(c) [of the APA] explicitly requires 137, 147 (1993) (stating that “Section 10(c) [of the APA] explicitly requires
exhaustion of all intra-agency appeals mandated either by statute or by agency rule”);exhaustion of all intra-agency appeals mandated either by statute or by agency rule”); Patsy v. Bd. of Regents, 457 U.S. Patsy v. Bd. of Regents, 457 U.S.
496, 502 n.4 (1982) (“496, 502 n.4 (1982) (“ Of course, exhaustion is requiredOf course, exhaustion is required ~~where~~ where Congress provides that certain administrative remedies Congress provides that certain administrative remedies
shall be exclusive.shall be exclusive. Even where the statutory requirement of exhaustion is not explicit, courts are guidedEven where the statutory requirement of exhaustion is not explicit, courts are guided by by
congressional intent in determining whether application of the doctrine would be consistent with the congressional intent in determining whether application of the doctrine would be consistent with the ~~st atutory~~statutory scheme. scheme.
In determining whether exhaustion of federal administrative remedies is required,In determining whether exhaustion of federal administrative remedies is required, courts generally focus on the role courts generally focus on the role
CongressCongress has assignedhas assigned to the relevant federal agency, and tailor the exhaustion rule to fit the particular administrative to the relevant federal agency, and tailor the exhaustion rule to fit the particular administrative
scheme created by Congress.” (internal citation omitted)).scheme created by Congress.” (internal citation omitted)).
~~283~~ 293 See, e.g., Rochester v. Bond, 603 F.2d 927, 931, 934, 939 (D.C. Cir. 1979) (holding that “, Rochester v. Bond, 603 F.2d 927, 931, 934, 939 (D.C. Cir. 1979) (holding that “ § 402 of the § 402 of the
Communications Act and § 1006 of the Aviation ActCommunications Act and § 1006 of the Aviation Act . . . prescribed. . . prescribed the exclusive mode of judicialthe exclusive mode of judicial review”—anreview”—an appeal appeal
to a federal court of appeals—and that the plaintiffs, who sought review in federal to a federal court of appeals—and that the plaintiffs, who sought review in federal district court, suedcourt, sued in the “in the “ ‘wrong’ ‘wrong’
court”).court”).
~~284~~ 294 See infra “Preemption Clauses.”
~~285~~295 See GonzagaGonzaga Univ. v. Doe, 536 U.S. 273, 284 (2002) (“[E]ven where a statute is phrased in suchUniv. v. Doe, 536 U.S. 273, 284 (2002) (“[E]ven where a statute is phrased in such explicit rights-explicit rights-
creating terms, a plaintiff suingcreating terms, a plaintiff suing under an implied right of action still mustunder an implied right of action still must show that the statute manifests an intent ‘to show that the statute manifests an intent ‘to
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federal law must be created by Congress.” federal law must be created by Congress.”~~286~~296 While the Supreme Court has in the past recognized While the Supreme Court has in the past recognized
“implied”“implied” rights of action “under certain limited circumstances,”rights of action “under certain limited circumstances,”~~287~~297 more modern case law has more modern case law has
instructed courts to “interpret the statute Congress has passed to determine whether it displays an instructed courts to “interpret the statute Congress has passed to determine whether it displays an
intent to create not just a private right but also a private remedy.”intent to create not just a private right but also a private remedy.”~~288~~298 Accordingly, if a Accordingly, if a ~~bil~~ bill does not does not
expressly authorize private parties to sue to enforce its provisions, a court is unlikely to conclude expressly authorize private parties to sue to enforce its provisions, a court is unlikely to conclude
that the that the ~~bil implicitly~~ bill implicitly creates a private cause of action.creates a private cause of action.~~289~~
299 Preemption Clauses
Under our system of dual sovereignty, governance is a responsibility shared by the federal Under our system of dual sovereignty, governance is a responsibility shared by the federal
government and the states.government and the states.~~290~~300 Accordingly, when a federal Accordingly, when a federal ~~bil~~ bill seeks to regulate private entities or seeks to regulate private entities or
individuals,individuals, questions may arise as to how the regulation interacts with state law. For example, questions may arise as to how the regulation interacts with state law. For example,
would the would the ~~bil~~ bill set a regulatory baseline or “floor” that states could supplement with their own set a regulatory baseline or “floor” that states could supplement with their own
laws? Would it establish a regulatory “floor” and “ceiling” or displace state law entirely?laws? Would it establish a regulatory “floor” and “ceiling” or displace state law entirely?~~291~~301
Would the Would the ~~bil al ow~~bill allow states to mirror the federal regulation as long as their laws are co-extensive states to mirror the federal regulation as long as their laws are co-extensive
with the federal one?with the federal one?~~292~~
302 The doctrine of federal preemption, which derives from the Supremacy Clause of the U.S. The doctrine of federal preemption, which derives from the Supremacy Clause of the U.S.
Constitution,Constitution,~~293~~303 provides that a state law that conflicts with a federal law “must yield” to the provides that a state law that conflicts with a federal law “must yield” to the
federal law.federal law.~~294~~304 Federal preemption can occur in two main ways: (1) a federal law can Federal preemption can occur in two main ways: (1) a federal law can expressly
preempt a state law through explicit statutory language—referred to in this report as a preemption preempt a state law through explicit statutory language—referred to in this report as a preemption
clause (e.gclause (e.g.., Figure 19); or (2) a federal law can ); or (2) a federal law can impliedly preempt a state law as reflected in the preempt a state law as reflected in the
statute’s text, structure, or purpose.statute’s text, structure, or purpose.~~295~~

~~create not~~ 305 create not just a private just a private right but also a private but also a private ~~rem edy~~remedy.’” (quoting Alexander v. Sandoval, 532 U.S..’” (quoting Alexander v. Sandoval, 532 U.S. 275, 286275, 286 (2001) (2001)
(with emphasis added));(with emphasis added)); Cannon v. Univ. of Chi., 441 U.S. 677, 688 (1979) (“Cannon v. Univ. of Chi., 441 U.S. 677, 688 (1979) (“ [T]he fact that a federal statute has been [T]he fact that a federal statute has been
violated and some person harmed does not automatically give rise to a private cause of action in favor of that person.”violated and some person harmed does not automatically give rise to a private cause of action in favor of that person.” ). ).
~~286~~296 Alexander v. Sandoval, 532 U.S. Alexander v. Sandoval, 532 U.S. 275, 286 (2001). 275, 286 (2001).
~~287~~297 Cannon, 441 U.S. at 717; , 441 U.S. at 717; see also Alexander, 532 U.S. at 287 (explaining that at one time, the Supreme Court , 532 U.S. at 287 (explaining that at one time, the Supreme Court
believedbelieved that courts had a duty to “‘provide such remedies as are necessary to make effective the congressional that courts had a duty to “‘provide such remedies as are necessary to make effective the congressional
purpose’ expressed by a statute,” but has since “purpose’ expressed by a statute,” but has since “ sworn off the habit of venturing beyond Congress’ssworn off the habit of venturing beyond Congress’s intent” (quoting J. intent” (quoting J.
I. CaseI. Case Co. v. Borak, 377 U.S.Co. v. Borak, 377 U.S. 426, 433 (1964))). 426, 433 (1964))).
~~288~~ 298 Alexander, 532 U.S. at 286; , 532 U.S. at 286; see also Ziglar v. Abbasi,Ziglar v. Abbasi, 137 S. Ct. 1843, 1856 (2017) (“If the statute does not itself so 137 S. Ct. 1843, 1856 (2017) (“If the statute does not itself so
provide, a private cause of action will not be created through judicialprovide, a private cause of action will not be created through judicial mandate.”). mandate.”).
~~289~~299 Cf. Alexander, 532 U.S. at 291 (finding “, 532 U.S. at 291 (finding “ no evidence anywhere in the text to suggest that Congress intended to no evidence anywhere in the text to suggest that Congress intended to
create a private right to enforce regulations” promulgated undercreate a private right to enforce regulations” promulgated under the statute).the statute).
~~290~~ 300 See HodelHodel ~~v. Va. Surface~~ v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 286–87 (1981). Mining & Reclamation Ass’n, 452 U.S. 264, 286–87 (1981).
~~291~~301 See CRSCRS Report R45825, Report R45825, Federal Preemption: A Legal Primer 26, by Jay B. Sykes26, by Jay B. Sykes ~~and Nicole Vanatko, by Jay B.~~
~~Sykes~~ and Nicole Vanatko. and Nicole Vanatko.
~~292~~302 See id. at 12. at 12.
~~293~~303 U.S. CONST. art. VI, cl. 2 (“ U.S. CONST. art. VI, cl. 2 (“~~T his~~This Constitution, and the Laws of the United States which shall be made Constitution, and the Laws of the United States which shall be made in Pursuance in Pursuance
thereof . . .thereof . . . shall beshall be the supreme Lawthe supreme Law of the Land; and the Judgesof the Land; and the Judges in every State shall be boundin every State shall be bound thereby, any thereby, any ~~T hing~~Thing in in
the Constitution or Laws of any State to the Contrary notwithstanding.”). the Constitution or Laws of any State to the Contrary notwithstanding.”).
~~294~~304 Felder v. Casey, 487 U.S. 131, 138 (1988) (internal quotation marks and citation omitted). For brevity, this section Felder v. Casey, 487 U.S. 131, 138 (1988) (internal quotation marks and citation omitted). For brevity, this section
refers to state laws,refers to state laws, but the same preemption principles generally apply to local laws.but the same preemption principles generally apply to local laws. See HillsboroughHillsborough Cty. v. Cty. v.
Automated Med. Labs., Inc., 471 U.S.Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985) (“[F]or the purposes of the Supremacy Clause,707, 713 (1985) (“[F]or the purposes of the Supremacy Clause, the the
constitutionality of local ordinances is analyzed in the same wayconstitutionality of local ordinances is analyzed in the same way as that of statewide laws.as that of statewide laws. ”). ”).
~~295~~305 Gade Gade v. Nat’l Solidv. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S.Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992) (plurality opinion) (“88, 98 (1992) (plurality opinion) (“ Pre-emption may be either Pre-emption may be either
expressed or implied, and ‘is compelled whether Congress’expressed or implied, and ‘is compelled whether Congress’ command is explicitly stated in the statute’s language or command is explicitly stated in the statute’s language or
implicitly contained in its structure and purpose.’” (quoting Jones v. Rath Packing Co., 430 U.S.implicitly contained in its structure and purpose.’” (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977))); 519, 525 (1977))); see
also Murphy v. NCAA, 138 S.Murphy v. NCAA, 138 S. Ct. 1461, 1480 (2018) (stating that preemption operates the same way whether expressCt. 1461, 1480 (2018) (stating that preemption operates the same way whether express or implied).
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Figure 19. Preemption Clause

Source: Good Samaritan Health ProfessionalsGood Samaritan Health Professionals Act of 2016, S. 3101, 114th Cong. § 2(a) (as introduced, Jun. 27, Act of 2016, S. 3101, 114th Cong. § 2(a) (as introduced, Jun. 27,
2016), https://www.congress.gov/114/bil s/s3101/BILLS-114s3101is.pdf#page=3.2016), https://www.congress.gov/114/bil s/s3101/BILLS-114s3101is.pdf#page=3.
Judicial interpretations of preemption provisions largely depend on the precise language used and Judicial interpretations of preemption provisions largely depend on the precise language used and
the the ~~overal~~ overall context of the relevant statutory scheme.context of the relevant statutory scheme.~~296~~306 Even so, some general principles can be Even so, some general principles can be
discerned from the relevant case law.discerned from the relevant case law.~~297~~307 First, the reach of an express preemption clause often First, the reach of an express preemption clause often
depends on the terms used to describe the relationship between the federal law and the state depends on the terms used to describe the relationship between the federal law and the state
law.law.~~298~~308 For example, a court may construe a preemption clause providing that a federal statute For example, a court may construe a preemption clause providing that a federal statute
supersedes state laws “related to” the act’s requirements or prohibitions as having broader supersedes state laws “related to” the act’s requirements or prohibitions as having broader
preemptive effect than one stating that a federal statute “covering” the subject matter of a state preemptive effect than one stating that a federal statute “covering” the subject matter of a state
law displaces the state law.law displaces the state law.~~299~~309 Moreover, terms that might be used interchangeably in common Moreover, terms that might be used interchangeably in common

~~or implied).~~
~~296~~parlance may lead to different interpretations when used in express preemption clauses. For example, in preemption clauses, the terms “laws” and “regulations” generally connote positive 306 See, , e.g., Altria Grp., Inc. v. Good,, Altria Grp., Inc. v. Good, 555 U.S. 70, 80 (2008) (reasoning that “[a]lthough it is clear that fidelity to the 555 U.S. 70, 80 (2008) (reasoning that “[a]lthough it is clear that fidelity to the
[Federal Cigarette Labeling[Federal Cigarette Labeling and Advertising] Act’s purposes does not demand the pre-emption of state fraud rules, the and Advertising] Act’s purposes does not demand the pre-emption of state fraud rules, the
principal question that we must decideprincipal question that we must decide is is whether the text of § 1334(b) nevertheless requires that result”); Ky. Ass’n of whether the text of § 1334(b) nevertheless requires that result”); Ky. Ass’n of
Health Plans v. Miller, 538 U.S. 329, 339–40 (2003) (stating that the Court’s prior “Health Plans v. Miller, 538 U.S. 329, 339–40 (2003) (stating that the Court’s prior “ use of the McCarran-Ferguson use of the McCarran-Ferguson
[Act] case law[Act] case law in the ERISAin the ERISA context has misdirected attention, failed to provide clear guidancecontext has misdirected attention, failed to provide clear guidance to lower federal courts, to lower federal courts,
and . . . addedand . . . added little to the relevant [preemption] analysis,” which, in the Court’s view,little to the relevant [preemption] analysis,” which, in the Court’s view, ~~was “~~ was “unsurprising, since the unsurprising, since the
statutory language of [ERISA]statutory language of [ERISA] § 1144(b)(2)(A) differs substantially from that of the McCarran-Ferguson Act”).§ 1144(b)(2)(A) differs substantially from that of the McCarran-Ferguson Act”).
~~297~~ 307 For an in-depth analysis of terminology commonly used in express preemption clauses and savings clauses, For an in-depth analysis of terminology commonly used in express preemption clauses and savings clauses, see CRS see CRS
Report R45825, Report R45825, Federal ~~Preem ption~~Preemption: A Legal ~~Prim er~~Primer, , supra note note ~~291~~301, at, at 6–13. 6–13.
~~298~~308 See, e.g., Kansas v. Garcia,, Kansas v. Garcia, 140 S.140 S. Ct. 791, 802 (2020) (reasoning that although a federal statute “contain[ed] a Ct. 791, 802 (2020) (reasoning that although a federal statute “contain[ed] a
provision that expressly preempts state law,” that preemption provision was “plainly inapplicable” in the circumstances provision that expressly preempts state law,” that preemption provision was “plainly inapplicable” in the circumstances
before the Court, becausebefore the Court, because it preempted state laws imposing liability on employers, not on employees). it preempted state laws imposing liability on employers, not on employees).
~~299 See CRS~~ 309 See CRS Report R45825, Report R45825, Federal Preemption: A Legal Primer, , ~~supra~~supra note note ~~291~~301, at 10 (explaining that the Supreme , at 10 (explaining that the Supreme
Court has held that federal lawCourt has held that federal law preempts state laws “preempts state laws “ related to” matters of federal regulatory concern when the state related to” matters of federal regulatory concern when the state
lawslaws have a “connection with” or “reference to” such federal matters, whereas the Court has held that a federal law have a “connection with” or “reference to” such federal matters, whereas the Court has held that a federal law
“covers” the subject matter of the state requirement only when it “‘substantially subsume[s]’”“covers” the subject matter of the state requirement only when it “‘substantially subsume[s]’” the subject matter of the the subject matter of the
relevant state law (citing Shawrelevant state law (citing Shaw v. Delta Air Lines, 463 U.S.v. Delta Air Lines, 463 U.S. 85, 96–97 (1983) and quoting CSX85, 96–97 (1983) and quoting CSX ~~T ransp~~ Transp. v. Easterwood, . v. Easterwood,
507 U.S.507 U.S. 658, 664 (1993))). Cf., e.g., Stern v. Gen.658, 664 (1993))). Cf., e.g., Stern v. Gen. Elec. Co., 924 F.2d 472, 475 (2d Cir. 1991) (“Elec. Co., 924 F.2d 472, 475 (2d Cir. 1991) (“ The preemption The preemption
provision of the [Federal Election Campaign Act of 1971], however, relates only to state-law provisions ‘with respect provision of the [Federal Election Campaign Act of 1971], however, relates only to state-law provisions ‘with respect
to election to Federal office.’ 2 U.S.C.to election to Federal office.’ 2 U.S.C. § § 453 (1988). 453 (1988). ~~T he~~The narrow wording of this narrow wording of this ~~pr ovision~~provision suggests suggests that Congress did that Congress did
not intend to preempt state regulation with respect to nonnot intend to preempt state regulation with respect to non -election-related activities.” (emphasis added)).-election-related activities.” (emphasis added)).
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~~parlance may lead to different interpretations when used in express preemption clauses. For~~
~~example, in preemption clauses, the terms “laws” and “regulations” general y connote positive~~
enactments such as statutes or agency regulations, while the terms “requirements” or “standards” enactments such as statutes or agency regulations, while the terms “requirements” or “standards”
may embrace common law causes of action.may embrace common law causes of action.~~300~~310 And if a And if a ~~bil~~ bill preempts state requirements that are preempts state requirements that are
“in addition to, or different than” federal requirements, it may be interpreted to “in addition to, or different than” federal requirements, it may be interpreted to ~~al ow~~allow parallel
state requirements even if they do not explicitlystate requirements even if they do not explicitly incorporate federal law or they provide for incorporate federal law or they provide for
different remedies than federal law.different remedies than federal law.~~301~~
311 Second, in the past courts have applied a presumption Second, in the past courts have applied a presumption against preemption, not only in the absence preemption, not only in the absence
of an express preemption clause but also where the clause is ambiguous or the federal statute of an express preemption clause but also where the clause is ambiguous or the federal statute
concerns a field that states have concerns a field that states have ~~traditional y~~traditionally occupied. occupied.~~302~~312 Courts have not always been consistent Courts have not always been consistent
in applying this presumption,in applying this presumption,~~303~~313 however, and in 2016, the Supreme Court suggested that the however, and in 2016, the Supreme Court suggested that the
presumption should not apply in cases involving “plain” express preemption language.presumption should not apply in cases involving “plain” express preemption language.~~304~~
314 Third, the existence of a preemption provision does not necessarily foreclose analysis into Third, the existence of a preemption provision does not necessarily foreclose analysis into
implied preemption, which can take two forms.implied preemption, which can take two forms.~~305~~315 The Supreme Court recognizes the “ The Supreme Court recognizes the “~~wel~~ well--
settled” principle of conflict preemption,settled” principle of conflict preemption,~~306~~316 which occurs when “compliance with both federal which occurs when “compliance with both federal
and state regulations is a physical impossibility,”and state regulations is a physical impossibility,”~~307~~317 or because “the or because “the ~~chal enged~~challenged state law ‘stands state law ‘stands
as an obstacle to the accomplishment and execution of the full purposes and objectives of as an obstacle to the accomplishment and execution of the full purposes and objectives of
Congress.’”Congress.’”~~308~~318 And in “rare cases,” the Court has invoked the theory of “field preemption” to And in “rare cases,” the Court has invoked the theory of “field preemption” to
conclude “that Congress ‘legislated so comprehensively’ in a particular field that it ‘left no room conclude “that Congress ‘legislated so comprehensively’ in a particular field that it ‘left no room
for supplementary state legislation.’”for supplementary state legislation.’”~~309~~
319 In In Geier v. American Honda Motor Co., the Court invoked implied, conflict preemption , the Court invoked implied, conflict preemption
principles in analyzing a federal statute that contained a preemption clause and an exception in principles in analyzing a federal statute that contained a preemption clause and an exception in

~~300 CRS~~ the form of a savings clause.320 The Court considered whether a person injured in a car accident 310 CRS Report R45825, Report R45825, Federal Preemption: A Legal Primer, , supra note note ~~291~~301, at 12–13 (summarizing judicial , at 12–13 (summarizing judicial
decisionsdecisions in whichin which the Supreme Court heldthe Supreme Court held that the phrase “law or regulation” didthat the phrase “law or regulation” did not include common law causesnot include common law causes of of
action and that the term “requirements” encompassed common law causesaction and that the term “requirements” encompassed common law causes of action, and noting that in one decision, the of action, and noting that in one decision, the
Court declinedCourt declined to decideto decide whether the term “standard” includedwhether the term “standard” included common law causescommon law causes of action). of action).
~~301~~311 Id. at 11–12 (citing, at 11–12 (citing, inter alia, Bates v. Dow, Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005)). Agrosciences LLC, 544 U.S. 431 (2005)).
~~302~~312 See Altria Group,Altria Group, Inc. v. Good,Inc. v. Good, 555 U.S. 70, 77 (2008) (stating that the presumption against preemption “applies 555 U.S. 70, 77 (2008) (stating that the presumption against preemption “applies
with particular force when Congresswith particular force when Congress has legislatedhas legislated in a field traditionally occupied by the States,” and that “when the in a field traditionally occupied by the States,” and that “when the
text of a pre-emption clause is susceptibletext of a pre-emption clause is susceptible of more than one plausible reading,of more than one plausible reading, ~~cour ts~~ courts ordinarily accept the reading that ordinarily accept the reading that
disfavors pre-emption” (internal quotation marks and citation omitted)). disfavors pre-emption” (internal quotation marks and citation omitted)).
~~303 See CRS~~ 313 See CRS Report R45825, Report R45825, Federal Preemption: A Legal Primer, , ~~supra~~supra note note ~~291~~301, at 3–6 (discussing, at 3–6 (discussing the evolution of the evolution of
the presumption against preemption); Graham v. R.J. Reynolds the presumption against preemption); Graham v. R.J. Reynolds ~~T obacco~~Tobacco Co., 857 F.3d 1169, 1294 n.281 (11th Cir. Co., 857 F.3d 1169, 1294 n.281 (11th Cir.
2017) (2017) (~~T joflat~~Tjoflat, J., dissenting) (describing, J., dissenting) (describing the presumption against preemption as “hotly debated, particularly when the presumption against preemption as “hotly debated, particularly when
applied applied ~~t o~~to issues issues of statutory interpretation in cases of statutory interpretation in cases ~~involv ing~~involving express preemption”). express preemption”).
~~304~~314 Compare ~~CT S~~CTS Corp. v. Waldburger, Corp. v. Waldburger, 573 U.S. 1, 19 (2014) (stating that the presumption against preemption 573 U.S. 1, 19 (2014) (stating that the presumption against preemption
supports “a narrow interpretation” of an express preemption provision “where plausible” and usingsupports “a narrow interpretation” of an express preemption provision “where plausible” and using the presumption as the presumption as
“additional support” for its interpretation based on “the natural reading” of the statute’s preemption provision (internal “additional support” for its interpretation based on “the natural reading” of the statute’s preemption provision (internal
quotation marks and citation omitted)), quotation marks and citation omitted)), with Puerto Rico v. Franklin Cal. Puerto Rico v. Franklin Cal. ~~T ax-Free T r~~Tax-Free Tr., 136 S. Ct. 1938, 1946 (2016) ., 136 S. Ct. 1938, 1946 (2016)
(stating that “because the statute contains an express pre-emption clause, we do not invoke any presumption against (stating that “because the statute contains an express pre-emption clause, we do not invoke any presumption against
pre-emption” (internal quotation marks and citation omitted)).pre-emption” (internal quotation marks and citation omitted)).
~~305~~315 See GeierGeier v. Am. Honda Motor Co., 529 U.S. 861, 869, 874 (2000) (holding that an express preemption provision v. Am. Honda Motor Co., 529 U.S. 861, 869, 874 (2000) (holding that an express preemption provision
diddid not, by itself, “foreclose or limit the operation of ordinary pre-emption principles,” including implied preemption). not, by itself, “foreclose or limit the operation of ordinary pre-emption principles,” including implied preemption).
~~306~~316 Arizona v. United States, 567 U.S. Arizona v. United States, 567 U.S. 387, 406 (2012). 387, 406 (2012).
~~307~~317 Id. at 399 (internal quotation marks omitted) (quoting Fla. Lime & Avocado Growers,at 399 (internal quotation marks omitted) (quoting Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, Inc. v. Paul, 373 U.S. 132,
142–43 (1963)). 142–43 (1963)).
~~308~~318 Id. (quoting Hines v. Davidowitz, 312 U.S.(quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). 52, 67 (1941)).
~~309~~319 Kansas v. Garcia, Kansas v. Garcia, 140 S.140 S. Ct. 791, 804 (2020) (quoting R.J. Reynolds Ct. 791, 804 (2020) (quoting R.J. Reynolds ~~T obacco~~Tobacco Co. v. Durham County, 479 U.S. 130, Co. v. Durham County, 479 U.S. 130,
140 (1986)). 140 (1986)).
320 Geier, 529 U.S. at 870. See infra “Savings Clauses.” Congressional Research Service Congressional Research Service
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~~the form of a savings clause.310 The Court considered whether a person injured in a car accident~~
could sue the car manufacturer under state tort law for not designing the car with driver-side could sue the car manufacturer under state tort law for not designing the car with driver-side
airbags.airbags.~~311~~321 A federal motor vehicle safety standard in place at the time A federal motor vehicle safety standard in place at the time ~~al owed~~allowed manufacturers to manufacturers to
choose among different types of passive restraint devices, such as airbags and automatic seatbelts, choose among different types of passive restraint devices, such as airbags and automatic seatbelts,
while phasing in specific requirements.while phasing in specific requirements.~~312~~322 The federal statute authorizing that regulatory standard The federal statute authorizing that regulatory standard
contained a preemption clause providing that no state could have a vehicle “safety standard . . . contained a preemption clause providing that no state could have a vehicle “safety standard . . .
which is not identical to the Federal standard” established under the act.which is not identical to the Federal standard” established under the act.~~313~~323 It also contained a It also contained a
savings clause providing that “‘compliance with’ a federal safety standard ‘does not exempt any savings clause providing that “‘compliance with’ a federal safety standard ‘does not exempt any
person from any liabilityperson from any liability under common law.’”under common law.’”~~314~~324 The Court reasoned that the savings clause “ The Court reasoned that the savings clause “at
least remove[d] tort actions from the scope of the express pre-emption clause.” remove[d] tort actions from the scope of the express pre-emption clause.”~~315~~325 However, the However, the
Court did not construe the savings clause to Court did not construe the savings clause to ~~al ow~~allow all state tort actions, finding that ordinary state tort actions, finding that ordinary
principles of conflict preemption applied.principles of conflict preemption applied.~~316~~326 The Court asked whether the petitioner’s tort claim The Court asked whether the petitioner’s tort claim
conflicted with the federal regulations.conflicted with the federal regulations.~~317~~327 Reasoning that the federal standard in place at the time Reasoning that the federal standard in place at the time
“deliberately sought variety” in manufacturers’ use of passive restraint devices, the Court held “deliberately sought variety” in manufacturers’ use of passive restraint devices, the Court held
that the claim, which that the claim, which ~~al eged~~alleged that the manufacturers had to use one specific device—an airbag— that the manufacturers had to use one specific device—an airbag—
impeded the federal standard and was therefore preempted.impeded the federal standard and was therefore preempted.~~318~~328
Savings Clauses
A savings clause is a provision that preserves legal rights, remedies, or requirements, such as A savings clause is a provision that preserves legal rights, remedies, or requirements, such as
those previously recognized by courts or created by other laws.those previously recognized by courts or created by other laws.~~319~~329 Savings clauses may appear in Savings clauses may appear in
their own their own ~~bil~~ bill sections or alongside the substantive provisions that they modify (for example, as sections or alongside the substantive provisions that they modify (for example, as
exceptions to general rules).exceptions to general rules).~~320~~330 Uses for savings clauses include: Uses for savings clauses include:
1. non-preemption—that is, preserving state or local authority to regulate in a given 1. non-preemption—that is, preserving state or local authority to regulate in a given
area; area;~~321~~

~~310~~331 321 Geier, 529 U.S. Geier, 529 U.S. at 870. See infra “Savings Clauses.”
311 Geier~~, 529 U.S.~~ at 864–65, 875, 878–79. at 864–65, 875, 878–79.
~~312~~322 Id.
~~313~~323 Id. at 867 (quoting 15 U.S.C.at 867 (quoting 15 U.S.C. § 1392(d) (1988 ed.)). § 1392(d) (1988 ed.)).
~~314~~324 Id. at 868 (quoting 15 U.S.C.at 868 (quoting 15 U.S.C. § 1397(k) (1988 ed.)). § 1397(k) (1988 ed.)).
~~315~~325 See id. at 868–70 (reasoning that the clause “preserves those actions that seek to establish greater safety than the at 868–70 (reasoning that the clause “preserves those actions that seek to establish greater safety than the
minimum safety achieved by a federal regulation intended to provide a floor”). For this reason, the Court declinedminimum safety achieved by a federal regulation intended to provide a floor”). For this reason, the Court declined to to
reach the threshold question of whether a tort claim premised on an airbagreach the threshold question of whether a tort claim premised on an airbag requirement constituted a “safety standard” requirement constituted a “safety standard”
within the meaning of the preemption clause. within the meaning of the preemption clause. Id. at 867–68. at 867–68.
~~316~~326 Id. at 869–70. at 869–70.
~~317~~327 Id. at 874. at 874.
~~318~~328 Id. at 878–81. Four Justices dissented. While they agreed that the savings clause preserved state commonat 878–81. Four Justices dissented. While they agreed that the savings clause preserved state common -law tort -law tort
claims, they arguedclaims, they argued that the majority should have applied the judicialthat the majority should have applied the judicial presumption against preemption and found that presumption against preemption and found that
the car manufacturer failed to meet its burdenthe car manufacturer failed to meet its burden to show how the federal standard implicitly preempted the petitioners’ to show how the federal standard implicitly preempted the petitioners’
state law claim. state law claim. Id. at 894–98, 907–10 (Stevens, J., dissenting). at 894–98, 907–10 (Stevens, J., dissenting).
~~319~~ 329 See Saving Clause, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “ saving clause”saving clause” or “savings clause”or “savings clause” as a as a
“statutory provision exempting from coverage something that would otherwise be included”);“statutory provision exempting from coverage something that would otherwise be included”); FILSON & STROKOFF, FILSON & STROKOFF,
supra note 37, at 177 (“note 37, at 177 (“ A savings clauseA savings clause ~~allows specified~~ allows specified persons or groupspersons or groups already operating in the area covered by already operating in the area covered by
the bill to continue their established operations as though the bill had not been enacted, or addressesthe bill to continue their established operations as though the bill had not been enacted, or addresses particular particular
problems that those persons or groups might face in adapting to the new rules.”). problems that those persons or groups might face in adapting to the new rules.”).
~~320~~330 FILSON & STROKOFF, FILSON & STROKOFF, supra note 37, at 177.note 37, at 177.
~~321~~331 See, e.g., Climate Solutions, Climate Solutions Act of 2017, H.R. 2958, 115th Cong., at 9–12 (as introduced, June 20, 2017), Act of 2017, H.R. 2958, 115th Cong., at 9–12 (as introduced, June 20, 2017),
https://www.congress.gov/115/bills/hr2958/BILLS-115hr2958ih.pdf#page=9 (requiring the EPA Administrator to https://www.congress.gov/115/bills/hr2958/BILLS-115hr2958ih.pdf#page=9 (requiring the EPA Administrator to
promulgate certain annual emission reduction targets and includingpromulgate certain annual emission reduction targets and including a savingsa savings ~~clause~~ clause stating that “[n]othing in this title shall be interpreted to preempt or limit State actions to address climate change”). A non-preemption clause can be drafted as an independent provision or as an exception or carve-out to an express preemption clause. For example, section 514(a) of ERISA contains an express preemption clause stating that “[e]xcept as provided in subsection (b) of~~stating that “[n]othing in this title~~
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2. preserving rights, claims, or entitlements “that would otherwise be lost” in 2. preserving rights, claims, or entitlements “that would otherwise be lost” in
legislation legislation repealing an existing law, as in the example irepealing an existing law, as in the example in Figure 20 below;below;~~322~~332
3. exempting certain existing entities or conduct—permanently, temporarily, or on a 3. exempting certain existing entities or conduct—permanently, temporarily, or on a
conditional basis—from the reach of otherwise applicable provisions; conditional basis—from the reach of otherwise applicable provisions;~~323~~333 and and
4. preserving federal laws or standards that might otherwise be deemed in conflict 4. preserving federal laws or standards that might otherwise be deemed in conflict
with or superseded by the new law. with or superseded by the new law.~~324~~

~~shall be interpreted to preempt or limit State actions to address climate change”). A non-preemption clause can be~~
~~drafted as an independent provision or as an exception or carve-out to an express preemption clause. For example,~~
~~section 514(a) of ERISA contains an express preemption clause stating that “ [e]xcept as provided in subsection (b) of~~
334 this section, the provisions of this title and title IV shall supersedethis section, the provisions of this title and title IV shall supersede any and all State lawsany and all State laws insofar as they may now or insofar as they may now or
hereafter relate to any employee benefit plan described in section 4(a) and not exempt under section 4(b).” 29 U.S.C. hereafter relate to any employee benefit plan described in section 4(a) and not exempt under section 4(b).” 29 U.S.C.
§ 1144(a). Subsection (b)(2)(A) contains what courts have referred to as a “§ 1144(a). Subsection (b)(2)(A) contains what courts have referred to as a “ savings clause,” whichsavings clause,” which states that “states that “ [e]xcept [e]xcept
as provided in subparagraph (B), nothing in this title shall be construed to exempt or relieve any person as provided in subparagraph (B), nothing in this title shall be construed to exempt or relieve any person ~~f rom~~from any law of any law of
any State whichany State which regulates insurance, banking, or securities.” regulates insurance, banking, or securities.” Id. § 1144(b)(2)(A); § 1144(b)(2)(A); see also Ky. Ass’n of Health Plans v. Ky. Ass’n of Health Plans v.
Miller, 538 U.S. 329, 334 (2003) (“It is well establishedMiller, 538 U.S. 329, 334 (2003) (“It is well established in our casein our case ~~law~~ law that a state law must bethat a state law must be ‘specifically ‘specifically ~~directe d~~directed
toward’ the insurance industry in order to fall undertoward’ the insurance industry in order to fall under ~~ERISA’s savings clause; laws~~ ERISA’s savings clause; laws of general application that have of general application that have
some bearing on insurerssome bearing on insurers do not qualify.”). do not qualify.”). See generally Alan Untereiner, Alan Untereiner, The Defense of Preemption: A View from
the Trenches, 84 , 84 ~~T UL~~TUL. L. REV. 1257, 1269–70 (2010) (providing examples of ways. L. REV. 1257, 1269–70 (2010) (providing examples of ways in which Congress in which Congress
“accommodate[s] federalism concerns” through the use of exclusions or exceptions in preemption provisions). “accommodate[s] federalism concerns” through the use of exclusions or exceptions in preemption provisions).
~~322~~332 Saving Clause, BLACK’S LAW DICTIONARY (11th ed. 2019). , BLACK’S LAW DICTIONARY (11th ed. 2019).
~~323~~333 See, e.g., Southeast Hurricanes, Southeast Hurricanes ~~Small Business~~ Small Business Disaster ReliefDisaster Relief Act of 2011, S. 653, 112th Cong. § 2(b) (as Act of 2011, S. 653, 112th Cong. § 2(b) (as
introduced, Mar. 28, 2011), https://www.congress.gov/112/bills/s653/BILLS-112s653is.pdfintroduced, Mar. 28, 2011), https://www.congress.gov/112/bills/s653/BILLS-112s653is.pdf (proposing to change the (proposing to change the
eligibilityeligibility criteria and terms of a disaster relief loan program but providing that a loan refinanced under the existing criteria and terms of a disaster relief loan program but providing that a loan refinanced under the existing
program before the bill’sprogram before the bill’s enactment date “enactment date “ shall remain in full force and effect under the terms, and for the duration, of shall remain in full force and effect under the terms, and for the duration, of
the loan”). Savingsthe loan”). Savings ~~clauses~~ clauses of this type are sometimes referred to as “grandfather clauses.”of this type are sometimes referred to as “grandfather clauses.” See FILSON & STROKOFF, FILSON & STROKOFF,
supra note 37, at 177 (noting that savings clausesnote 37, at 177 (noting that savings clauses are “are “ sometimes called ‘grandfather clauses,’” a term with roots in sometimes called ‘grandfather clauses,’” a term with roots in
“the post–Civil War practice in some States of extending the right to vote only to individuals whose grandfathers had “the post–Civil War practice in some States of extending the right to vote only to individuals whose grandfathers had
been eligiblebeen eligible to vote”); Alan Greenblatt, to vote”); Alan Greenblatt, The Racial History of the ‘Grandfather Clause’, NPR CODE SWITCH: WORD , NPR CODE SWITCH: WORD
WATCH (Oct. 22, 2013), https://www.npr.org/sections/codeswitch/2013/10/21/239081586/the-racial-history-of-the-WATCH (Oct. 22, 2013), https://www.npr.org/sections/codeswitch/2013/10/21/239081586/the-racial-history-of-the-
grandfather-clause. grandfather-clause.
~~324~~334 See, e.g., Water and Energy Sustainability through , Water and Energy Sustainability through ~~T echnology~~Technology Act, H.R. 3275, 115th Cong., at 76 (as introduced, Act, H.R. 3275, 115th Cong., at 76 (as introduced,
JulyJuly 17, 2017), https://www.congress.gov/115/bills/hr3275/BILLS-115hr3275ih.pdf#page=76 (stating that the act 17, 2017), https://www.congress.gov/115/bills/hr3275/BILLS-115hr3275ih.pdf#page=76 (stating that the act
“shall not be interpreted or implemented in a manner that . . . overrides, modifies, or amends the applicability of the “shall not be interpreted or implemented in a manner that . . . overrides, modifies, or amends the applicability of the
National Environmental Policy Act of 1969, the Endangered Species act of 1973, or the Federal Water Pollution National Environmental Policy Act of 1969, the Endangered Species act of 1973, or the Federal Water Pollution
Control Act of 1948” (internal citations omitted)). Control Act of 1948” (internal citations omitted)).
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Figure 20. Savings Clause

Source: Asia-Pacific Economic Cooperation Business Travel Cards Act of 2017, S. 504, 115th Cong. § 4 (2017) Asia-Pacific Economic Cooperation Business Travel Cards Act of 2017, S. 504, 115th Cong. § 4 (2017)
(as enrol ed),(as enrol ed), https://www.congress.gov/115/bil s/s504/BILLS-115s504enr.pdf#page=3.https://www.congress.gov/115/bil s/s504/BILLS-115s504enr.pdf#page=3.
A true savings clause does not create new rights or remedies. A true savings clause does not create new rights or remedies.~~325~~335 But even in preserving existing But even in preserving existing
ones, savings clauses can pose ones, savings clauses can pose ~~chal enging~~challenging interpretive issues for the courts because they are interpretive issues for the courts because they are
unlikelyunlikely to provide definitive instructions for how the law applies in every situation.to provide definitive instructions for how the law applies in every situation.~~326~~336 For For
example, inexample, in Epic Systems Corp. v. Lewis, the Supreme Court considered the interplay between , the Supreme Court considered the interplay between
two federal statutes: the National Labor Relations Act (NLRA)—which two federal statutes: the National Labor Relations Act (NLRA)—which ~~general y~~generally protects protects
employees when they engage in concerted activities for their mutual aid and protection—and the employees when they engage in concerted activities for their mutual aid and protection—and the
Federal Arbitration Act (Arbitration Act)—which Federal Arbitration Act (Arbitration Act)—which ~~general y~~generally requires courts to enforce arbitration requires courts to enforce arbitration
agreements.agreements.~~327~~337 A key issue was whether a savings clause in the Arbitration Act A key issue was whether a savings clause in the Arbitration Act ~~al owed~~allowed courts to courts to
refuse to enforce arbitration agreements that prohibit employee class actions on the ground that refuse to enforce arbitration agreements that prohibit employee class actions on the ground that
such agreements violate the NLRA.such agreements violate the NLRA.~~328~~338 The Arbitration Act provided that arbitration agreements The Arbitration Act provided that arbitration agreements
are “valid, irrevocable, and enforceable, are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for
the revocation of any contract.”.”~~329~~339 The Court divided over this question, five Justices to four. The The Court divided over this question, five Justices to four. The
majority held that the Arbitration Act’s savings clause did not encompass an NLRA/class-action majority held that the Arbitration Act’s savings clause did not encompass an NLRA/class-action

~~325~~ 335 See, e.g., Musson , Musson ~~T heatrical~~Theatrical v. Fed. Express Corp., 89 F.3d 1244, 1252 (6th Cir. 1996) (stating that the “existence of v. Fed. Express Corp., 89 F.3d 1244, 1252 (6th Cir. 1996) (stating that the “existence of
a general savings clausea general savings clause in a federal statute does not license a court to create a federal causein a federal statute does not license a court to create a federal cause of action when the plaintiff of action when the plaintiff
cannot meet the normal requirements” demonstrating an implied right of action), cannot meet the normal requirements” demonstrating an implied right of action), amended in other respects by No. 95-No. 95-
5120, 1998 U.S. App. LEXIS5120, 1998 U.S. App. LEXIS 1626 (6th Cir. Jan. 15, 1998); Roth v. Cox, 210 F.2d 76, 79 (5th Cir. 1954) (“1626 (6th Cir. Jan. 15, 1998); Roth v. Cox, 210 F.2d 76, 79 (5th Cir. 1954) (“ ~~T he~~The saving saving
clauseclause neither creates substantive rights in itself nor assents to their creation by the state.neither creates substantive rights in itself nor assents to their creation by the state. ”), ”), aff’d, 348 U.S. 207 (1955). , 348 U.S. 207 (1955).
~~326~~336 See, e.g., Int’l Paper Co. v. Ouellette, 479 U.S. 481, 493–94 (1987) (deciding whether “a general saving clause” , Int’l Paper Co. v. Ouellette, 479 U.S. 481, 493–94 (1987) (deciding whether “a general saving clause”
blocked the operation of the Clean Water Act’s preemption language in a specific scenario byblocked the operation of the Clean Water Act’s preemption language in a specific scenario by examining the statute “examining the statute “ as as
a whole, its purposes and its history” because the statute “itself [did] not speak directly to” the question). a whole, its purposes and its history” because the statute “itself [did] not speak directly to” the question). But cf.
Chamber of Commerce of the United States v. Whiting, 563 U.S. 582, 599 (2011)Chamber of Commerce of the United States v. Whiting, 563 U.S. 582, 599 (2011) (“Whatever the usefulness of relying (“Whatever the usefulness of relying
on legislative history materials in general, the arguments against doingon legislative history materials in general, the arguments against doing so are particularly compelling here. Beyond so are particularly compelling here. Beyond
verbatim recitation of the statutory text, all of the legislative history documents related to [the Immigration Reform and verbatim recitation of the statutory text, all of the legislative history documents related to [the Immigration Reform and
Control Act] save one fail to discussControl Act] save one fail to discuss the saving clausethe saving clause at all.”). at all.”).
~~327~~ 337 138 S. Ct. 1612 (2018). 138 S. Ct. 1612 (2018).
~~328~~338 Id. at 1622. at 1622.
~~329~~339 Id. (quoting 9 U.S.C.(quoting 9 U.S.C. § § 2 (emphasis added)). 2 (emphasis added)).
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defense to arbitration. defense to arbitration.~~330~~340 The Court reasoned, The Court reasoned, inter alia, that the NLRA/class-action defense was , that the NLRA/class-action defense was
not a ground that “exist[ed] at law or in equity for the revocation of not a ground that “exist[ed] at law or in equity for the revocation of any contract,”,”~~331~~341 unlike unlike
““~~general y~~generally applicable contract defenses, such as fraud, duress, or unconscionability.” applicable contract defenses, such as fraud, duress, or unconscionability.”~~332~~342 In In
contrast, the dissent argued that the savings clause contrast, the dissent argued that the savings clause ~~al owed~~allowed an NLRA-based defense to an NLRA-based defense to
enforcement of an arbitration agreement, reasoning that “[i]enforcement of an arbitration agreement, reasoning that “[i]~~l egality~~llegality is a traditional, is a traditional, ~~general y~~
generally applicable contract defense.”applicable contract defense.”~~333~~
343 Timing Rules
By default, a By default, a ~~bil~~ bill takes effect upon enactment; that is: (1) when the President signs the takes effect upon enactment; that is: (1) when the President signs the ~~bil~~ bill into into
law; (2) when the law; (2) when the ~~bil~~ bill becomes a law because the President has not signed the becomes a law because the President has not signed the ~~bil~~ bill within ten days within ten days
of presentment and Congress is in session; or (3) when Congress overrides a presidential veto.of presentment and Congress is in session; or (3) when Congress overrides a presidential veto.~~334~~344
And by default, an enacted And by default, an enacted ~~bil~~ bill remains the law until repealed, amended, or superseded by another remains the law until repealed, amended, or superseded by another
law.law.~~335~~345 However, Congress can specify an alternative effective date in the However, Congress can specify an alternative effective date in the ~~bil~~ bill or period in which or period in which
the law remains in effect to override these default rules, subject to certain constitutional the law remains in effect to override these default rules, subject to certain constitutional
constraints.constraints.~~336~~346
Effective Dates
As previously noted, a As previously noted, a ~~bil~~ bill may include one or more effective dates indicating when the may include one or more effective dates indicating when the ~~bil~~ bill as a as a
whole, or certain provisions of it, take effect. These examples whole, or certain provisions of it, take effect. These examples ~~il ustrate~~illustrate various forms of effective various forms of effective
dates: dates:
1. “This Act and the amendments made by this Act 1. “This Act and the amendments made by this Act ~~shal~~ shall take effect 60 days after take effect 60 days after
the date of the enactment of this Act.” the date of the enactment of this Act.”~~337~~347
2. “Except as provided in subsection (b), this Act and the amendments made by this 2. “Except as provided in subsection (b), this Act and the amendments made by this
Act Act ~~shal~~ shall take effect upon enactment.”take effect upon enactment.”~~338~~348
3. “The amendments made by this section 3. “The amendments made by this section ~~shal~~ shall apply to taxableapply to taxable years beginning years beginning
after December 31, 2017.” after December 31, 2017.”~~339~~

~~330~~349 340 Id. at 1621–23. at 1621–23.
~~331~~341 Id. at 1622 (emphasis added)at 1622 (emphasis added) (quoting 9 U.S.C.(quoting 9 U.S.C. § § 2). 2).
~~332~~342 Id. (quoting AT(quoting AT &T &T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011)). Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011)).
~~333~~343 Id. at 1645at 1645 (Ginsburg,(Ginsburg, J., dissenting). J., dissenting).
~~334~~344 See Gozlon-Peretz v. United States, 498 U.S.Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991) (“It is well395, 404 (1991) (“It is well established that, absent a clear direction by established that, absent a clear direction by
CongressCongress to the contrary, a law takes effect on the date of its enactment.”). to the contrary, a law takes effect on the date of its enactment.”). See supra note 11 and accompanying text. note 11 and accompanying text.
~~335~~345 See supra “How a New Act Affects Existing Law.” ”
~~336~~346 For example, once Congress For example, once Congress has delegated a particular decision to the executive branch, it cannot maintain control has delegated a particular decision to the executive branch, it cannot maintain control
over that decision without going through the “over that decision without going through the “ finely wrought and exhaustively considered” proceduresfinely wrought and exhaustively considered” procedures of bicameralism of bicameralism
and presentmentand presentment . INS v. Chadha, 462 U.S. 919, 951, 954. INS v. Chadha, 462 U.S. 919, 951, 954 –55 (1983) (“Disagreement with the Attorney General’s –55 (1983) (“Disagreement with the Attorney General’s
decision on Chadha’sdecision on Chadha’s deportation—that is, Congress’ decisiondeportation—that is, Congress’ decision to deport Chadha—no less than Congress’ original to deport Chadha—no less than Congress’ original
choice to delegate to the Attorney General the authority to make that decision, involves determinations of policy that choice to delegate to the Attorney General the authority to make that decision, involves determinations of policy that
CongressCongress can implement in only one way; bicameral passagecan implement in only one way; bicameral passage ~~followed~~ followed by presentment to the President. Congress by presentment to the President. Congress ~~m ust~~must
abideabide by its delegation of authority until that delegation is legislatively altered or revoked.”); by its delegation of authority until that delegation is legislatively altered or revoked.”); see also Clinton v. City of Clinton v. City of
NewNew York, 524 U.S. 417, 448 (1998)York, 524 U.S. 417, 448 (1998) (holding that the procedures authorized by the Line Item Veto Act, which allowed (holding that the procedures authorized by the Line Item Veto Act, which allowed
the President to “the President to “ cancel” a provision of a previously enacted lawcancel” a provision of a previously enacted law under certain circumstances, wereunder certain circumstances, were unconstitutional). unconstitutional).
~~337~~347 United States-Cuba United States-Cuba Normalization Act of 2017, H.R. 2966, 115th Cong. § 9 (as introduced, Jun. 20, 2017), Normalization Act of 2017, H.R. 2966, 115th Cong. § 9 (as introduced, Jun. 20, 2017),
https://www.congress.gov/115/bills/hr2966/BILLS-115hr2966ih.pdf#page=12. https://www.congress.gov/115/bills/hr2966/BILLS-115hr2966ih.pdf#page=12.
~~338 ART ICLE~~348 ARTICLE ONE Act, H.R. 1755, 116th Cong. § 7 (as introduced, Mar. 14, 2019), ONE Act, H.R. 1755, 116th Cong. § 7 (as introduced, Mar. 14, 2019),
https://www.congress.gov/116/bills/hr1755/BILLS-116hr1755ih.pdf#page=17. https://www.congress.gov/116/bills/hr1755/BILLS-116hr1755ih.pdf#page=17.
~~339 S~~ 349 S Corporation Modernization Act of 2017, H.R. 1696, 115th Cong. § 3(d) (as introduced, Mar. 23, 2017), Corporation Modernization Act of 2017, H.R. 1696, 115th Cong. § 3(d) (as introduced, Mar. 23, 2017),
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4. “This Act 4. “This Act ~~shal~~ shall take effect when the President certifies to the Congress that take effect when the President certifies to the Congress that al
all foreign countries possessing nuclear weapons have established legal foreign countries possessing nuclear weapons have established legal
requirements comparable to those set forth in section 2 and those requirements requirements comparable to those set forth in section 2 and those requirements
have taken effect.”have taken effect.”~~340~~350
As the examples above show, laws can take effect on a specific date or after a designated time As the examples above show, laws can take effect on a specific date or after a designated time
period following enactment, or be delayed to coincide with the start of a calendar or fiscal year. period following enactment, or be delayed to coincide with the start of a calendar or fiscal year.
The effective date of a law can also hinge on the performance of one or more requirements under The effective date of a law can also hinge on the performance of one or more requirements under
the act or some other occurrence.the act or some other occurrence.~~341 Additional y~~351 Additionally, effective dates may be accompanied or qualified , effective dates may be accompanied or qualified
by provisions limitingby provisions limiting the reach of new or amended requirements or prohibitions, such as a the reach of new or amended requirements or prohibitions, such as a
statement that the law does not apply retroactively to conduct occurring before that date.statement that the law does not apply retroactively to conduct occurring before that date.~~342~~
352 Transitional Provisions
Transitional provisions in Transitional provisions in ~~bil s typical y~~ bills typically contain requirements that apply for a set time period.contain requirements that apply for a set time period.~~343~~353
Such provisions may define a “transition period” from the date of enactment until a specified date Such provisions may define a “transition period” from the date of enactment until a specified date
or event to or event to ~~al ow~~allow time for the preparation and submission of reports to Congress or the time for the preparation and submission of reports to Congress or the
promulgation of agency regulations.promulgation of agency regulations.~~344~~
354 Transitional provisions also may be used to ameliorate the effects of regulatory changes by Transitional provisions also may be used to ameliorate the effects of regulatory changes by
phasing in certain requirements or creating special rules to ease the transition for “classes of phasing in certain requirements or creating special rules to ease the transition for “classes of
people for whom the adjustment would be particularly difficult.”people for whom the adjustment would be particularly difficult.”~~345~~355 For example, the For example, the ~~bil~~ bill in in
Figure 21 would would ~~general y~~generally prohibit a principal supervisory inspector with the Federal Aviation prohibit a principal supervisory inspector with the Federal Aviation
Administration from overseeing the same air carrier for more than five consecutive years. Administration from overseeing the same air carrier for more than five consecutive years.
However, a transitional provision in the billHowever, a transitional provision in the bill would would ~~al ow~~allow inspectors serving in that role as of the inspectors serving in that role as of the
~~bil~~ bill’s enactment date to continue their oversight responsibilities until the end of five consecutive ’s enactment date to continue their oversight responsibilities until the end of five consecutive
years or for two years from the enactment date, whichever is later. Accordingly, the years or for two years from the enactment date, whichever is later. Accordingly, the ~~bil~~ bill would would
~~al ow~~allow, for example, a principal supervisory inspector who was overseeing the same carrier for , for example, a principal supervisory inspector who was overseeing the same carrier for

https://www.congress.gov/115/bills/hr1696/BILLS-115hr1696ih.pdf#page=6. https://www.congress.gov/115/bills/hr1696/BILLS-115hr1696ih.pdf#page=6.
~~340~~350 Nuclear Disarmament and Economic Conversion Act of 2009, H.R. 1653, 111th Cong. § 3 (as introduced, Mar. 19, Nuclear Disarmament and Economic Conversion Act of 2009, H.R. 1653, 111th Cong. § 3 (as introduced, Mar. 19,
2009), https://www.congress.gov/111/bills/hr1653/BILLS-111hr1653ih.pdf#page=2. 2009), https://www.congress.gov/111/bills/hr1653/BILLS-111hr1653ih.pdf#page=2.
~~341~~351 But cf. Marshall Field Marshall Field & Co. v. Clark, 143 U.S. 649, 668–69, 672 (1892) (declining to question the validity and & Co. v. Clark, 143 U.S. 649, 668–69, 672 (1892) (declining to question the validity and
legallegal force of “force of “ an enrolled act in the custody of the Secretary of State, and having the official attestations of the Speaker an enrolled act in the custody of the Secretary of State, and having the official attestations of the Speaker
of the House of Representatives, of the President of of the House of Representatives, of the President of ~~t he~~the Senate, and of the President of the United States,” because Senate, and of the President of the United States,” because it it
diddid not contain a section reflected in the congressional record from the bill’s passage).not contain a section reflected in the congressional record from the bill’s passage). See also supra note note ~~336~~346
(identifying potential constitutional limitations). (identifying potential constitutional limitations).
~~342~~352 See, e.g., Fair Franchise Act of 2017, H.R. 470, 115th Cong. § 12(b) (as introduced, Jan. 12, 2017), , Fair Franchise Act of 2017, H.R. 470, 115th Cong. § 12(b) (as introduced, Jan. 12, 2017),
https://www.congress.gov/115/bills/hr470/BILLS-115hr470ih.pdf#page=35 (stating that the bill’s provisions https://www.congress.gov/115/bills/hr470/BILLS-115hr470ih.pdf#page=35 (stating that the bill’s provisions
prohibiting certain unfair franchise practices “shall take effect 90 days after the date of enactment” and “shall apply prohibiting certain unfair franchise practices “shall take effect 90 days after the date of enactment” and “shall apply
only to actions, practices, disclosures, and statements occurring on or after such date”). only to actions, practices, disclosures, and statements occurring on or after such date”).
~~343~~353 FILSON & STROKOFF, FILSON & STROKOFF, supra note 37, at 175–76. Because transitional provisions are usually temporary in nature, they note 37, at 175–76. Because transitional provisions are usually temporary in nature, they
might not be codified in the might not be codified in the U.S. Code. . See FullerFuller v. INS,v. INS, 144 F. Supp. 2d144 F. Supp. 2d 72, 76 (D. Conn. 2000) (explaining that the 72, 76 (D. Conn. 2000) (explaining that the
IllegalIllegal Immigration Reform and Immigrant Responsibility Act “contains two sets of provisions, one transitional and the Immigration Reform and Immigrant Responsibility Act “contains two sets of provisions, one transitional and the
other permanent” and that the transitional provisions “are not codified in the U.S. Code”).other permanent” and that the transitional provisions “are not codified in the U.S. Code”).
~~344~~ 354 See, e.g., BUILD Act of 2018, H.R. 5105, 115th Cong. § 601 (as engrossed, BUILD Act of 2018, H.R. 5105, 115th Cong. § 601 (as engrossed in the House, Julyin the House, July 17, 2018), 17, 2018),
https://www.congress.gov/115/bills/hr5105/BILLS-115hr5105eh.pdf#page=601 (defining a “https://www.congress.gov/115/bills/hr5105/BILLS-115hr5105eh.pdf#page=601 (defining a “ transition period” that transition period” that
beginsbegins on the on the ~~dat e~~date of enactment and ends on the effective date of a reorganization plan required of enactment and ends on the effective date of a reorganization plan required by the bill).by the bill).
~~345~~ 355 FILSON & STROKOFF, FILSON & STROKOFF, supra note 37, at 176; note 37, at 176; see, e.g., Kai v. Ross,, Kai v. Ross, 336 F.3d 650, 651–52 (8th Cir. 2003) (analyzing 336 F.3d 650, 651–52 (8th Cir. 2003) (analyzing
the transitional provisions in welfare reform legislation that provided for continued payment of Medicaid benefits to the transitional provisions in welfare reform legislation that provided for continued payment of Medicaid benefits to
certain persons for up to one year); certain persons for up to one year); ~~T ataranowicz~~Tataranowicz v. Sullivan, v. Sullivan, 959 F.2d 268, 277 (D.C. Cir. 1992) (“959 F.2d 268, 277 (D.C. Cir. 1992) (“ Such Such
grandfathering typically seeks to provide special relief for persons on whom grandfathering typically seeks to provide special relief for persons on whom ~~t he~~the new regime might bear with unusual new regime might bear with unusual
severity, becauseseverity, because it specially disrupts their lives, usuallyit specially disrupts their lives, usually ~~because~~ because of decisionsof decisions they are likely to have taken in reliance they are likely to have taken in reliance
on the prior regime.”). on the prior regime.”).
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four years on the date of enactment to continue the inspector’s principal oversight functions for four years on the date of enactment to continue the inspector’s principal oversight functions for
two more years, despite the five-year limit. two more years, despite the five-year limit.
Figure 21. Transitional Provision

Source: FAAFAA Reauthorization Act of 2009, H.R. 915, 111th Cong. § 334 (as referredReauthorization Act of 2009, H.R. 915, 111th Cong. § 334 (as referred in Senate, June 1, 2009), in Senate, June 1, 2009),
https://www.congress.gov/111/bil s/hr915/BILLS-111hr915rfs.pdf#page=151. https://www.congress.gov/111/bil s/hr915/BILLS-111hr915rfs.pdf#page=151.
Sunset Provisions
The purpose of a sunset provision in a The purpose of a sunset provision in a ~~bil~~ bill is to “terminate[] is to “terminate[] al all authority to carry out that law (or authority to carry out that law (or
to spend money under that law) at some specified future time.”to spend money under that law) at some specified future time.”~~346~~356 In some cases, a sunset In some cases, a sunset
provision gives Congress a period of time to review the law to determine if reenactment (for provision gives Congress a period of time to review the law to determine if reenactment (for
example, with a repeal or extension of the sunset provision) or amendment is appropriate.example, with a repeal or extension of the sunset provision) or amendment is appropriate.~~347~~357 In In
other circumstances, Congress has determined that the law is needed only for a limited period of other circumstances, Congress has determined that the law is needed only for a limited period of
time to address a particular situation.time to address a particular situation.~~348~~358 In enacted legislation, if Congress takes no action to In enacted legislation, if Congress takes no action to
extend the law by the sunset date, then the law subject to the sunset provision ceases to have legal extend the law by the sunset date, then the law subject to the sunset provision ceases to have legal
effect.effect.~~349~~

~~346~~359 356 FILSON & STROKOFF, FILSON & STROKOFF, supra note 37, at 180. note 37, at 180.
~~347~~357 Id.; ; see, e.g., ACLU v. Clapper, 785 F.3d 787, 795 (2d Cir. 2015) (noting that at the time of the court’s opinion, , ACLU v. Clapper, 785 F.3d 787, 795 (2d Cir. 2015) (noting that at the time of the court’s opinion,
CongressCongress had renewedhad renewed a section of the a section of the ~~PAT RIOT~~ PATRIOT Act with a sunset provision seven times).Act with a sunset provision seven times).
~~348~~ 358 See, e.g., Cablevision Sys., Cablevision Sys. Corp. v. FCC,Corp. v. FCC, 649 F.3d 695, 721 (D.C. Cir. 2011) (reasoning that Congress built649 F.3d 695, 721 (D.C. Cir. 2011) (reasoning that Congress built a sunset a sunset
provision into an “exclusive contract prohibition” in a statute designedprovision into an “exclusive contract prohibition” in a statute designed to increase competition in the cable industry to increase competition in the cable industry
becausebecause it “sought to balance the need for regulatory intervention in markets possessing significant barriers to it “sought to balance the need for regulatory intervention in markets possessing significant barriers to
competition with its recognition that vertical integration and exclusive dealingcompetition with its recognition that vertical integration and exclusive dealing arrangements are not always pernicious arrangements are not always pernicious
and, dependingand, depending on market conditions, may actually be procompetitive”).on market conditions, may actually be procompetitive”).
~~349~~ 359 See Laurence H. Laurence H. ~~T ribe~~Tribe, , Toward a Syntax of the Unsaid: Construing the Sounds of Congressional and Constitutional
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Figure 22 is an excerpt of a sunset provision from a is an excerpt of a sunset provision from a ~~bil~~ bill that, among other things, would require that, among other things, would require
the Secretary of Health and Human Services to convene a “Family Caregiving Advisory Council” the Secretary of Health and Human Services to convene a “Family Caregiving Advisory Council”
and develop a “Family Caregiving Strategy” as specified in the and develop a “Family Caregiving Strategy” as specified in the ~~bil .350~~bill.360 Under the Under the ~~bil~~ bill, such , such
authority and obligations would end five years after the authority and obligations would end five years after the ~~bil~~ bill’s enactment.’s enactment.~~351~~
361 Figure 22. Sunset Provision

Source: RAISE FamilyRAISE Family ~~Caregivers~~ Caregivers Act, S. 1028, 115th Cong. § 6 (as referredAct, S. 1028, 115th Cong. § 6 (as referred in House, Sept. 27, 2017), in House, Sept. 27, 2017),
https://www.congress.gov/115/bil s/s1028/BILLS-115s1028rfh.pdf#page=12. https://www.congress.gov/115/bil s/s1028/BILLS-115s1028rfh.pdf#page=12.
Severability or Inseverability Clauses
When a court has determined that one or more provisions of a statute are unconstitutional, the When a court has determined that one or more provisions of a statute are unconstitutional, the
court is faced with the question of whether to strike down the statute in its entirety or only court is faced with the question of whether to strike down the statute in its entirety or only
invalidateinvalidate the offending provision or provisions.the offending provision or provisions.~~352~~362 The Supreme Court has long recognized that The Supreme Court has long recognized that
“one section of a statute may be repugnant to the Constitution without rendering the whole act “one section of a statute may be repugnant to the Constitution without rendering the whole act
void.”void.”~~353~~363 Accordingly, “when confronting a constitutional flaw in a statute,” the Court tries “to Accordingly, “when confronting a constitutional flaw in a statute,” the Court tries “to
limit the solution to the problem, severing any problematic portions while leaving the remainder limit the solution to the problem, severing any problematic portions while leaving the remainder
intact.”intact.”~~354~~364 In practice, this means that the Court leans toward “severing” the unconstitutional In practice, this means that the Court leans toward “severing” the unconstitutional
provision so that the rest of the statute can remain in force.provision so that the rest of the statute can remain in force.~~355~~

365 Silence, 57 IND. L.J. 515, 528 (1982) (noting that sunset provisions “, 57 IND. L.J. 515, 528 (1982) (noting that sunset provisions “ creat[e] situations in which creat[e] situations in which inaction by a future by a future
CongressCongress ~~will lead a law~~ will lead a law to to lapse when it wouldwhen it would otherwise have survived”). otherwise have survived”).
~~350~~360 RAISE RAISE Family Caregivers Act, S.Family Caregivers Act, S. 1028, 115th Cong. §§ 3–4 (as referred in House,1028, 115th Cong. §§ 3–4 (as referred in House, Sept. 27, 2017), Sept. 27, 2017),
https://www.congress.gov/115/bills/s1028/BILLS-115s1028rfh.pdf#page=2. https://www.congress.gov/115/bills/s1028/BILLS-115s1028rfh.pdf#page=2.
~~351~~ 361 Id. § 6. A related bill, H.R.§ 6. A related bill, H.R. 3759, became public3759, became public law,law, with a three-year sunset. Pub. L. No. 115-119, § 6, 132 Stat. with a three-year sunset. Pub. L. No. 115-119, § 6, 132 Stat.
23, 27 (2018). 23, 27 (2018).
~~352~~362 See, e.g., Murphy v. NCAA,, Murphy v. NCAA, 138 S. Ct. 1461, 1485 (2018) (Thomas, J., concurring) (explaining that because the 138 S. Ct. 1461, 1485 (2018) (Thomas, J., concurring) (explaining that because the
statute at issue “is at least partially unconstitutional, our precedents instruct us to determine ‘which portions of the . . . statute at issue “is at least partially unconstitutional, our precedents instruct us to determine ‘which portions of the . . .
statute we must sever and excise’” (quoting United States v. Booker, 543 U.S.statute we must sever and excise’” (quoting United States v. Booker, 543 U.S. 220, 258 (2005) (emphasis removed))). 220, 258 (2005) (emphasis removed))).
~~353~~ 363 See SeilaSeila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2208 (2020) (plurality opinion) (internal Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2208 (2020) (plurality opinion) (internal
quotation marks omitted) (quoting Loeb v. Columbiaquotation marks omitted) (quoting Loeb v. Columbia ~~T wp. T rs~~ Twp. Trs., 179 U.S. 472, 490 (1900)). ., 179 U.S. 472, 490 (1900)).
~~354~~364 Free Enter. Fund v. Pub. Co. Account Free Enter. Fund v. Pub. Co. Account . Oversight Bd., 561 U.S.. Oversight Bd., 561 U.S. 477, 508 (2010) (internal quotation marks and 477, 508 (2010) (internal quotation marks and
citation omitted). citation omitted).
~~355~~365 Seila Law LLC,, 140 S.140 S. Ct. at 2209; Ct. at 2209; see also Murphy, 138 S., 138 S. Ct. at 1489 (Ginsburg,Ct. at 1489 (Ginsburg, J., dissenting) (stating that J., dissenting) (stating that
“[w]hen a statute reveals a constitutional flaw, the Court ordinarily engages“[w]hen a statute reveals a constitutional flaw, the Court ordinarily engages in a salvagein a salvage rather rather ~~t han~~than a demolition a demolition
operation”).operation”).
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The Court’s test for severability is The Court’s test for severability is ~~wel~~ well-settled:-settled:~~356~~366 courts should sever an unconstitutional portion courts should sever an unconstitutional portion
of a statute if the remainder of the statute can stand on its own, of a statute if the remainder of the statute can stand on its own, unless it is evident it is evident that Congress that Congress
would not have enacted the remainder of the statute independently of the invalidwould not have enacted the remainder of the statute independently of the invalid part.part.~~357~~367
When a Bill Contains a Severability Clause
A severability clause (e.g A severability clause (e.g.., Figure 23) is a provision intended to “keep[] the remaining provisions ) is a provision intended to “keep[] the remaining provisions
of a . . . statute in force if any portion of that . . . statute is of a . . . statute in force if any portion of that . . . statute is ~~judicial y~~judicially declared . . . declared . . .
unconstitutional.”unconstitutional.”~~358~~
368 Figure 23. Severability Clause

Source: Puerto Rico Emergency Financial Stability Act of 2015, H.R.Puerto Rico Emergency Financial Stability Act of 2015, H.R. 4290, 114th Cong. § 4 (as introduced, 4290, 114th Cong. § 4 (as introduced,
Dec. 18, 2015), https://www.congress.gov/114/bil s/hr4290/BILLS-114hr4290ih.pdf#page=4. Dec. 18, 2015), https://www.congress.gov/114/bil s/hr4290/BILLS-114hr4290ih.pdf#page=4.
A clear severability clause A clear severability clause al all but resolves the “elusive inquiry” into congressional intent by but resolves the “elusive inquiry” into congressional intent by
“giv[ing] rise to a presumption that Congress did not intend the validity of” the statute as a whole “giv[ing] rise to a presumption that Congress did not intend the validity of” the statute as a whole
to depend on the validity of the provision or provisions in question.to depend on the validity of the provision or provisions in question.~~359~~369 Thus, when in 2020, the Thus, when in 2020, the
Supreme Court held that the leadership structure of the Consumer Financial Protection Bureau Supreme Court held that the leadership structure of the Consumer Financial Protection Bureau
(CFPB) was unconstitutional because a statutory provision limited the President’s ability to (CFPB) was unconstitutional because a statutory provision limited the President’s ability to
remove the agency’s sole director, the Court found that its severability analysis was “simplified” remove the agency’s sole director, the Court found that its severability analysis was “simplified”
by a severability clause in the Dodd-Frank Act, the statute that created the CFPB.by a severability clause in the Dodd-Frank Act, the statute that created the CFPB.~~360~~370 Writing for a Writing for a
plurality of the Court,plurality of the Court,~~361~~371 Chief Justice John Roberts, Jr. explained, “[t]here is no need to wonder Chief Justice John Roberts, Jr. explained, “[t]here is no need to wonder

~~356~~ 366 But see Murphy, 138 S. Ct. at 1487 (, 138 S. Ct. at 1487 (~~T homas~~Thomas, J., concurring) (questioning the Court’s severability doctrine because, , J., concurring) (questioning the Court’s severability doctrine because,
in the Justice’s view, it invites courts to speculate about “legislators’ in the Justice’s view, it invites courts to speculate about “legislators’ hypothetical intentions,” at least in situations intentions,” at least in situations
where “where “ Congress has not expressed its fallback position in the text” of the statute).Congress has not expressed its fallback position in the text” of the statute).
~~357~~ 367 E.g., Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987); Buckley v. Valeo,, Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987); Buckley v. Valeo, 424 U.S. 1, 108424 U.S. 1, 108 –09 (1976) (per –09 (1976) (per
curiam). curiam).
~~358~~368 Severability Clause, BLACK’S LAW DICTIONARY (11th ed. 2019). , BLACK’S LAW DICTIONARY (11th ed. 2019).
~~359~~369 INS INS v. Chadha, 462 U.S. 919, 932 (1983); v. Chadha, 462 U.S. 919, 932 (1983); e.g., Nat’l Fed’n of Indep. Bus., Nat’l Fed’n of Indep. Bus. v. Sebelius,v. Sebelius, 567 U.S.567 U.S. 519, 586 (2012) 519, 586 (2012)
(plurality opinion) (“(plurality opinion) (“ The chapter of the United States Code that contains § 1396c includes a severability clause The chapter of the United States Code that contains § 1396c includes a severability clause
confirming that we need goconfirming that we need go no further [than limiting § 1396c’s enforcement]. no further [than limiting § 1396c’s enforcement]. ~~T hat~~That clause specifies that ‘[i]f any clause specifies that ‘[i]f any
provision of this chapter, or the application thereof to any person or circumstance, is held invalid, the remainder of the provision of this chapter, or the application thereof to any person or circumstance, is held invalid, the remainder of the
chapter, and the application of such provision to other persons or circumstances shall not be affected thereby.’” chapter, and the application of such provision to other persons or circumstances shall not be affected thereby.’”
(quoting 42 U.S.C.(quoting 42 U.S.C. § § 1303)). 1303)).
~~360~~370 Seila Law LLC,, 140 S.140 S. Ct. at 2209. Ct. at 2209. See also CRS CRS Legal SidebarLegal Sidebar LSB10507, LSB10507, Supreme Court Rules CFPB Structure
Unconstitutional: ~~Im plications~~Implications for Congress, by Jacob, by Jacob D. Shelly. D. Shelly.
~~361~~ 371 While the Court’s severability analysis was While the Court’s severability analysis was set forth in a plurality opinion authored by Chief Justiceset forth in a plurality opinion authored by Chief Justice Roberts and Roberts and
joined by two Justices, four additional Justices whojoined by two Justices, four additional Justices who ~~dissen ted~~ dissented from the constitutional holding nonetheless concurred in from the constitutional holding nonetheless concurred in
the Court’s severability judgment.the Court’s severability judgment. See id. at 564 (Kagan, J., dissenting)at 564 (Kagan, J., dissenting) ~~(“T he~~ (“The outcome today will not shut down outcome today will not shut down the the
Congressional Research Service Congressional Research Service
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Understanding Federal Legislation

what Congress would have wanted if ‘any provision of this Act’ is ‘held to be unconstitutional’ what Congress would have wanted if ‘any provision of this Act’ is ‘held to be unconstitutional’
because it has told us: ‘the remainder of this Act’ should ‘not be affected.’”because it has told us: ‘the remainder of this Act’ should ‘not be affected.’”~~362~~372 The plurality went The plurality went
on to reject the petitioner’s argument that the severability clause was a mere “boilerplate” on to reject the petitioner’s argument that the severability clause was a mere “boilerplate”
provision appearing in an “848-page” statute and “almost 600 pages before the removal provision provision appearing in an “848-page” statute and “almost 600 pages before the removal provision
at issue,” remarking, “boilerplate is boilerplate for a reason—because it offers tried-and-true at issue,” remarking, “boilerplate is boilerplate for a reason—because it offers tried-and-true
language to ensure a precise and predictable result.”language to ensure a precise and predictable result.”~~363~~373
When a Bill Does Not Address Severability
When a When a ~~bil~~ bill does not address severability but amends an existing law, a severability clause in the does not address severability but amends an existing law, a severability clause in the
underlying statute mayunderlying statute may address the question.address the question.~~364~~374 For example, in For example, in Barr v. American Association of
Political Consultants, another 2020 decision, the Court held that an exception in the Telephone , another 2020 decision, the Court held that an exception in the Telephone
Consumer Protection Act of 1991 (TCPA)—a federal law that prohibited certain Consumer Protection Act of 1991 (TCPA)—a federal law that prohibited certain ~~robocal s~~robocalls but but
exempted government-debt collection exempted government-debt collection ~~cal s~~calls—violated the First Amendment.—violated the First Amendment.~~365~~375 A majority of the A majority of the
Justices concluded that the “government-debt exception must be invalidated and severed from the Justices concluded that the “government-debt exception must be invalidated and severed from the
remainder of the statute.”remainder of the statute.”~~366~~376 In a plurality opinion, In a plurality opinion,~~367~~377 Justice Brett Kavanaugh explained that the Justice Brett Kavanaugh explained that the
act that the TCPA amended, the Communications Act of 1934, “has contained an express act that the TCPA amended, the Communications Act of 1934, “has contained an express
severability clause” since its passage.severability clause” since its passage.~~368~~378 The severability clause applied to “this chapter” of the The severability clause applied to “this chapter” of the
Communications Act—that is, the provisions classified to chapter 5 of title 47 of the Communications Act—that is, the provisions classified to chapter 5 of title 47 of the U.S. Code, ,
the same chapter that now includes “the provision with the the same chapter that now includes “the provision with the ~~robocal~~ robocall restriction and the restriction and the
government-debt exception.”government-debt exception.”~~369~~379 In the plurality’s view, it did not matter that Congress enacted the In the plurality’s view, it did not matter that Congress enacted the
severability clause in 1934, “long before the TCPA’s 1991 severability clause in 1934, “long before the TCPA’s 1991 ~~robocal~~ robocall restriction and the 2015 restriction and the 2015
government-debt exception,” because the clause’s text “squarely covers the unconstitutional government-debt exception,” because the clause’s text “squarely covers the unconstitutional
government-debt exception.”government-debt exception.”~~370~~380
If the legislation If the legislation or the statute it amends lacks any severability clause, the absence of a or the statute it amends lacks any severability clause, the absence of a
severability clause does not signal much about Congress’s intent; it does not support a severability clause does not signal much about Congress’s intent; it does not support a

presumption of inseverability.381 In these circumstances, a court may look for other indicia of CFPB: A different majority of this Court, includingCFPB: A different majority of this Court, including all those who join this all those who join this ~~op inion~~opinion, believes that, believes that if the agency’s the agency’s
removal provision is unconstitutional, it should beremoval provision is unconstitutional, it should be severed.”). severed.”).
~~362~~ 372 Seila Law LLC, 140 S., 140 S. Ct. at 2209 (plurality opinion) (quoting 12 U.S.C. § 5302). Ct. at 2209 (plurality opinion) (quoting 12 U.S.C. § 5302). ~~T he~~The plurality further reasoned that the plurality further reasoned that the
remainder of the act was capableremainder of the act was capable of operating independently of the unconstitutional removal provision. of operating independently of the unconstitutional removal provision. Id.
~~363~~ 373 Id. (internal quotation marks and citations omitted). (internal quotation marks and citations omitted).
~~364~~374 See, e.g., Barr v. Am. Ass’n, Barr v. Am. Ass’n ~~of Political Consultants, No. 19-631, 2020 U.S. LEXIS 3544, at *20 n.6 (July 6,~~ of Pol. Consultants, 140 S. Ct. 2335, 2349 n.6 (2020) 2020)
(plurality opinion) (“When Congress enacts a law(plurality opinion) (“When Congress enacts a law with a severability clausewith a severability clause and later addsand later adds new provisions to that new provisions to that
statute, the severability clause applies to those new provisions to the extent dictated by the text of the severability statute, the severability clause applies to those new provisions to the extent dictated by the text of the severability
~~clause.”).~~
~~365 140 S. Ct. 2335, 2343 (2020) (plurality opinion) (“[T]he T elephone~~clause.”). 375 Id. at 2343 (“[T]he Telephone Consumer Protection Act of 1991, known as the Consumer Protection Act of 1991, known as the
~~T CPA~~TCPA, generally prohibits robocalls to cell phones and home phones. But a 2015 amendment to the , generally prohibits robocalls to cell phones and home phones. But a 2015 amendment to the ~~T CPA~~TCPA allows allows
robocalls that are made to collect debts robocalls that are made to collect debts ~~owed~~ owed to or guaranteed byto or guaranteed by the Federal Government, including robocalls made to the Federal Government, including robocalls made to
collect many student loan and mortgage debts.”). Justicecollect many student loan and mortgage debts.”). Justice Brett Kavanaugh wrote a plurality opinion on the First Brett Kavanaugh wrote a plurality opinion on the First
Amendment issueAmendment issue that was joined by three other Justices, though, in total, “[s]ix Members of the Courtthat was joined by three other Justices, though, in total, “[s]ix Members of the Court . . . conclude[d] . . . conclude[d]
that Congress ha[d] impermissibly favored debtthat Congress ha[d] impermissibly favored debt --collection speech over political and other speech, in violation of the collection speech over political and other speech, in violation of the
First Amendment.” First Amendment.” Id.
~~366~~376 Id.
~~367 T his~~377 This portion of Justice Kavanaugh’s opinion was joined by two other Justices, though seven Members of the Court portion of Justice Kavanaugh’s opinion was joined by two other Justices, though seven Members of the Court
in total concluded that the government-debt exception should be severed. in total concluded that the government-debt exception should be severed. See id.
~~368~~ 378 Id. at 2352. at 2352.
~~369~~379 Id.
370 Id.
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~~Understanding Federal Legislation~~

~~presumption of inseverability.371 In these circumstances, a court may look for other indicia of~~
380 Id. 381 Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987) (“In the absence of a severability clause . . . Congress’ silence is just that—silence—and does not raise a presumption against severability.”). Congressional Research Service 60 Understanding Federal Legislation congressional intent in the statute’s text or legislative history.congressional intent in the statute’s text or legislative history.~~372 However, the~~382 The Justices in the Justices in the Barr
pluralityplurality expressed their view that courts should avoid speculating about the enacting Congress’s expressed their view that courts should avoid speculating about the enacting Congress’s
intent and instead follow the Court’s “strong presumption of severability,” focusing on whether intent and instead follow the Court’s “strong presumption of severability,” focusing on whether
the remainder of the statute is the remainder of the statute is ~~stil~~ still “fully operative” as a law.“fully operative” as a law.~~373~~383 With respect to the TCPA, the With respect to the TCPA, the
Barr plurality concluded that even if the statute did not contain an applicable severability clause, plurality concluded that even if the statute did not contain an applicable severability clause,
the presumption of severability was not overcome because, without the government-debt the presumption of severability was not overcome because, without the government-debt
exception, the TCPA was “capable of functioning independently and thus would be fully exception, the TCPA was “capable of functioning independently and thus would be fully
operative as a law.”operative as a law.”~~374~~384 The plurality reasoned that “the remainder of the The plurality reasoned that “the remainder of the ~~robocal~~ robocall restrictionrestriction did
function independently and fully operate as a law for 20-plus years before the government-debt function independently and fully operate as a law for 20-plus years before the government-debt
exception was added in 2015.”exception was added in 2015.”~~375~~385 This case, and decisions that it cites, suggest that “an This case, and decisions that it cites, suggest that “an
unconstitutional amendment to a prior law” unconstitutional amendment to a prior law” may be easier to sever than a provision that was be easier to sever than a provision that was
central to the original statutory scheme.central to the original statutory scheme.~~376~~
386 In view of this presumption of severability, In view of this presumption of severability,~~377~~387 a court may focus on whether the statute can a court may focus on whether the statute can
operate without the invalidoperate without the invalid provision. In addition to the considerations discussed above relating to provision. In addition to the considerations discussed above relating to
discrete, later-enacted amendments,discrete, later-enacted amendments,~~378~~388 relevant factors for this step of the analysis include relevant factors for this step of the analysis include
whether the invalid provision is “whether the invalid provision is “~~functional y~~functionally independent” of the rest of the law so that its independent” of the rest of the law so that its
exclusion would not change the “basic operation” of the statute;exclusion would not change the “basic operation” of the statute;~~379~~389 and whether the act, as and whether the act, as
modified, “modified, “~~stil~~ still serves Congress’ objective.”390 For example, in Murphy v. NCAA, the Supreme Court considered whether to sever invalid provisions in the Professional and Amateur Sports Protection Act (PASPA), a federal statute, in the absence of an express severability clause.391 The provisions at issue barred states from authorizing and licensing sports gambling—prohibitions that, according to the Court, violated constitutional principles of federalism.392 Without these provisions, PASPA would have allowed states to authorize private sports gambling, while prohibiting states from “operating” state-run lotteries and prohibiting both states and private entities from “promoting” or “advertising” private 382 See, e.g., New York v. United States, 505 U.S. ~~serves Congress’ objective.”380 This step can be a difficult exercise.381 In cases~~
~~involving complex legislation, it can be particularly hard for a court to determine whether the law~~
~~as modified would continue to operate as Congress intended.382~~

~~371 Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987) (“In the absence of a severability clause . . . Congress’~~
~~silence is just that —silence—and does not raise a presumption against severability.”).~~
372 See, e.g.~~, New York v. United St ates, 505 U.S.~~ 144, 186 (1992) (reasoning that “where Congress has enacted a 144, 186 (1992) (reasoning that “where Congress has enacted a
statutory scheme for an obvious purpose, and where Congressstatutory scheme for an obvious purpose, and where Congress has includedhas included a series of provisions operating as a series of provisions operating as
incentives to achieve that purpose, the invalidation of one of the incentives should not ordinarily causeincentives to achieve that purpose, the invalidation of one of the incentives should not ordinarily cause Congress’ Congress’
overall intent to be frustrated”).overall intent to be frustrated”).
~~373~~ 383 Barr, 140 S. Ct. at 2350–52 (internal quotation marks and citation omitted). , 140 S. Ct. at 2350–52 (internal quotation marks and citation omitted).
~~374~~384 Id. at 2353. at 2353.
~~375~~385 Id. (emphasis added).(emphasis added).
~~376~~ 386 Id. (citing Frost v. Corp. Comm’n of Okla., 278 U.S. 515, 526–27 (1929); (citing Frost v. Corp. Comm’n of Okla., 278 U.S. 515, 526–27 (1929); ~~T ruax~~Truax v. Corrigan, 257 U.S. 312, 342 v. Corrigan, 257 U.S. 312, 342
(1921)). (1921)).
~~377~~387 See supra notes notes ~~354–55~~383–84 and accompanying text. and accompanying text.
~~378~~388 See supra notes notes ~~375–76~~385–86 and accompanying text. and accompanying text.
~~379~~389 United States v. Jackson, 390 U.S. United States v. Jackson, 390 U.S. 570, 586 (1968). 570, 586 (1968). Compare Free Enter. Fund v. Pub. Free Enter. Fund v. Pub. Co. Account. Oversight Bd., Co. Account. Oversight Bd.,
561 U.S.561 U.S. 477, 509 (2010) (invalidating certain statutory protections against board members’ removal from office but 477, 509 (2010) (invalidating certain statutory protections against board members’ removal from office but
concludingconcluding that the “Sarbanes-Oxley Act remains ‘fully operative as a law’ with these tenure restrictions excised” that the “Sarbanes-Oxley Act remains ‘fully operative as a law’ with these tenure restrictions excised”
(citation omitted)), (citation omitted)), with Wyoming v. Oklahoma, 502 U.S. 437, 460 (1992) Wyoming v. Oklahoma, 502 U.S. 437, 460 (1992) (reasoning that because the state statutory (reasoning that because the state statutory
provision applied to “all entities” providing electric power in the state and contained “no parts or separate provision applied to “all entities” providing electric power in the state and contained “no parts or separate ~~p rovisions~~provisions,” ,”
once the court struck that provision, “[n]othing remain[ed] to be saved” and the lawonce the court struck that provision, “[n]othing remain[ed] to be saved” and the law had to “stand or fall as a whole”).had to “stand or fall as a whole”).
~~380 New~~ 390 New York v. United States, 505 U.S. 144, 187 (1992). 391 Murphy v. NCAA, 138 S. Ct. 1461 (2018); see also Pub. L. No. 102-559, 106 Stat. 4227 (1992) (codified at 28 U.S.C. §§ 3701–04). 392 Murphy, 138 S. Ct. at 1478; see also CRS Legal Sidebar LSB10133, The Supreme Court Bets Against Commandeering: Murphy v. NCAA, Sports Gambling, and Federalism, by Jay B. Sykes. Congressional Research Service 61 Understanding Federal Legislation sports gambling authorized under state law.393 The Court found it “unlikely” that Congress would have adopted this alternative statutory scheme,394 in part because it would create a “strange rule” that makes private sports gambling unlawful only in states that authorized private sports gambling.395 In sum, the Murphy Court decided that breaking up PASPA would replace a “coherent federal policy” with a puzzling one.396 Determining whether a statute is fully operative as a law without a particular provision can be especially difficult when the law at issue is complex, as illustrated by litigation over the minimum essential health insurance coverage requirement in the 2010 Patient Protection and Affordable Care Act (ACA), commonly known as the “individual mandate.”397 Although the Supreme Court ultimately dismissed the case on standing grounds in 2021,398 the lower courts’ rulings highlight the complexities of analyzing severability in multifaceted statutes, and thus may inform future legislative drafting decisions regarding express severability provisions. In 2012, the Supreme Court upheld the individual mandate as a valid exercise of Congress’s taxing power.399 After Congress reduced the tax penalty for noncompliance to zero in 2017, a group of states and individuals again challenged the constitutionality of the individual mandate.400 In 2018, the U.S. District Court for the Northern District of Texas held that because of the 2017 amendment, the individual mandate was “no longer fairly readable as an exercise of Congress’s Tax Power” and was therefore unconstitutional.401 The court next considered whether the individual mandate was “severable from the rest of the ACA.”402 The district court began its severability analysis by examining the text of the ACA for an indication of Congress’s intent as to whether a court should sever an unconstitutional provision.403 In the court’s view, the ACA’s text “plainly” showed that the individual mandate was “essential” to the ACA and thus inseverable.404 The court declined to separate and uphold the remaining provisions, reasoning that to do so “would change the ‘effect’ of the ACA ‘as a whole’” and create “an entirely new regulatory scheme never intended by Congress.”405 393 Murphy, 138 S. Ct. at 1482–85 (internal quotation marks and alterations omitted). 394 Id. at 1482–83. 395 Id. at 1483. 396 Id. at 1483–84. 397 26 U.S.C. § 5000A; see also Matthew Fiedler, The ACA’s Individual Mandate in Retrospect: What Did It Do, And Where Do We Go from Here?, HEALTHAFFAIRS (2020), https://www.healthaffairs.org/doi/10.1377/hlthaff.2019.01433. 398 California v. Texas, 141 S. Ct. 2104, 2120 (2021); see also CRS Legal Sidebar LSB10610, Supreme Court Dismisses Challenge to the Affordable Care Act in California v. Texas. 399 Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 570–74 (2012). 400 CRS Legal Sidebar LSB10547, California v. Texas: The Fate of the Affordable Care Act. 401 Texas v. United States, 340 F. Supp. 3d 579, 605 (N.D. Tex. 2018), judgment entered, 352 F. Supp. 3d 665 (2018), aff’d in part and vacated and remanded in part by 945 F.3d 355 (2019), vacated and remanded sub nom., California, 141 S. Ct. 2104. 402 Id. 403 Id. at 607. 404 Id. at 608–09; see also 42 U.S.C. § 18091(2)(H)–(J) (congressional findings stating that the individual mandate was “essential” to effective regulation of health insurance markets). The court also concluded that Supreme Court decisions on the ACA and “historical context” supported this interpretation. Texas, 340 F. Supp. 3d at 610–17. 405 Id. at 614 (quoting R.R. Ret. Bd. v. Alton R.R., 295 U.S. 330, 362 (1935)). Congressional Research Service 62 link to page 69 link to page 69 Understanding Federal Legislation On appeal, the Fifth Circuit agreed that the individual mandate was unconstitutional, but asked the district court to supplement its severability analysis.406 The court of appeals advised the district court to determine first “whether the constitutional provisions—standing on their own, without the unconstitutional provisions—are ‘fully operative as a law,’” consistent with Congress’s design, before asking if Congress “would have enacted the remaining provisions without the unconstitutional portion.”407 The panel acknowledged the difficulty of this analysis, remarking that “[s]everability doctrine places courts between a rock and a hard place” in seeking to balance their efforts to “be faithful agents of Congress, which often means refusing to create a hole in a statute in a way that creates legislation Congress never would have agreed to or passed” against their duty to “‘limit the solution to the problem’ by ‘refrain[ing] from invalidating more of the statute than is necessary.’”408 These inquiries are “most demanding,” the court observed, “in the context of sprawling (and amended) statutory schemes like” the ACA.409 The Fifth Circuit concluded that even with these challenges, the district court must “employ a finer-toothed comb on remand and conduct a more searching inquiry into which provisions of the ACA Congress intended to be inseverable from the individual mandate.”410 When a Bill Contains an Inseverability Clause In contrast to a severability clause, an inseverability (or non-severability) clause (e.g., Figure 24) states that if a court declares any provision or a certain provision of the law unconstitutional, the remainder of the statute—or at least some other designated portion of the statute—should fall with it.411 406 Texas v. United States, 945 F.3d 355, 369 (5th Cir. 2019), vacated and remanded sub nom., California v. Texas, 141 S. Ct. 2104 (2021). 407 Id. at 394 (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 509 (2010)). 408 Id. (footnote omitted) (quoting Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328 (2006)). 409 Id. at 396. 410 Id. at 402. Subsequently, in California v. Texas, the Supreme Court ruled that the state and individual plaintiffs lacked standing to challenge the individual mandate because they had not demonstrated “a concrete, particularized injury fairly traceable to” that provision. 141 S. Ct. 2104, 2120 (2021). Accordingly, the Court did not reach the constitutionality or severability of the individual mandate. Id. at 2112. 411 See Barr v. Am. Ass’n of Pol. Consultants, 140 S. Ct. 2335, 2349 (2020) (plurality opinion) (“Congress may include a nonseverability clause, making clear that the unconstitutionality of one provision means the invalidity of some or all of the remainder of the law, to the extent specified in the text of the nonseverability clause. See, e.g., 4 U.S.C. § 125; note following 42 U.S.C. § 300aa-1; 94 Stat. 1797.”); MIKVA ET AL., supra note 7, at 86 (“An inseverability clause is one that specifically ties certain provisions together. If one of these provisions, then, is invalidated by the courts, the other provisions would also be invalidated by statutory command. Use of this approach would protect important legislative compromises from being undermined.”); Israel E. Friedman, Comment: Inseverability Clauses in Statutes, 64 U. CHI. L. REV. 903, 915 (1997) (stating that “the inclusion of an inseverability clause is an affirmative act by a legislature to preserve the coexistence of separate provisions”). As shown in Figure 24, a bill may include an inseverability clause under a section called “severability,” but for purposes of differentiating between the two types of provisions, this report uses the distinct terms “severability clause” and “inseverability clause.” Congressional Research Service 63 Understanding Federal Legislation Figure 24. Inseverability Clause Source: American Indian Probate Reform Act of 2004, Pub. L. No. 108-374, § 9, 118 Stat. 1773, 1810 (2004) (S. 1721, 108th Cong.), https://www.congress.gov/108/plaws/publ374/PLAW-108publ374.pdf#page=38. The Supreme Court has not definitively ruled on the weight that courts should give inseverability clauses. However, in Barr (the TCPA case discussed above), the plurality placed these clauses on par with severability clauses in terms of enunciating Congress’s intent.412 The plurality stated that absent “extraordinary circumstances,” a court “should adhere to the text of the severability or nonseverability clause” because “a severability or nonseverability clause leaves no doubt about what the enacting Congress wanted if one provision of the law were later declared unconstitutional.”413 This opinion echoed what the Court said in dicta in a 1982 decision when it suggested that inseverability clauses allow courts to avoid “speculat[ion]” about what the enacting legislatures intended.414 In that case, the Court was interpreting a state statute and remanded the severability question for the state court to decide.415 In subsequent appellate cases, some courts have also treated inseverability clauses like severability clauses, reasoning that they give rise to a presumption about what the legislature intended (i.e., in the case of an inseverability clause, a presumption against invalidating only the offending portion of the law).416 Technical and Conforming Amendments When a bill would amend the organization or language of an existing law, congressional drafters may include technical or conforming amendments to address anticipated inconsistencies. For 412 Barr, 140 S. Ct. at 2349 (plurality opinion). 413 Id. 414 Zobel v. Williams, 457 U.S. 55, 65 (1982) (“Here, we need not speculate as to the intent of the Alaska Legislature; the legislation expressly provides that invalidation of any portion of the statute renders the whole invalid. . . . However, it is of course for the Alaska courts to pass on the severability clause of the statute.”). 415 Id. 416 See, e.g., Biszko v. RIHT Fin. Corp., 758 F.2d 769, 773 (1st Cir. 1985) (noting that the “Rhode Island legislature included a non-severability clause in the statute” and reasoning that although “a non-severability clause cannot ultimately bind a court, it establishes a presumption of non-severability”); see also Eric S. Fish, Severability as Conditionality, 64 EMORY L.J. 1293, 1336–37 (2015) (arguing that courts should give effect to clear inseverability clauses because “inseverability is a legislative power and not a judicial one” but noting the views of other scholars who have argued that inseverability clauses infringe on the judiciary’s role of construing statutes); Friedman, supra note 411, at 920–23 (proposing that courts treat clear inseverability clauses as “dispositive,” rather than invoking a mere presumption in favor of inseverability, because “the inclusion of an inseverability clause is a deliberate act of the legislature to enforce a legislative compromise and to ensure that the provision [in question] and the remainder of the statute operate in tandem”). Congressional Research Service 64 link to page 70 link to page 71 Understanding Federal Legislation instance, a bill that seeks to add a new definition in alphabetical order to a definitions section of an existing statute may need to include a technical amendment directing that the subsequent definitions be renumbered. In the example in Figure 25, the bill seeks to add the term “derivative” as paragraph 9 in an alphabetically arranged definitions section of the Commodity Exchange Act.417 A technical amendment in the bill re-designates paragraphs 9 through 34 of that section as paragraphs 10 through 35 to accommodate the newly defined term. Figure 25. Technical Amendment Source: Over-the-Counter Derivatives Markets Act of 2009, H.R. 3795, 111th Cong. § 111 (as introduced, Oct. 13, 2009), https://www.congress.gov/111/bil s/hr3795/BILLS-111hr3795ih.pdf#page=2. A bill ~~York v. United States, 505 U.S. 144, 187 (1992).~~
~~381 See, e.g., T exas v. United States, 945 F.3d 355, 394 (5th Cir. 2019) (stating that “[s]everability doctrine places~~
~~courts between a rock and a hard place” when they “ strive to be faithful agents of Congress, which often means~~
~~refusing to create a hole in a statute in a way that creates legislation Congress never would have agreed to or passed”~~
~~while “‘limit[ing] the solution to the problem’ by ‘refrain[ing] from invalidating more of the statute than is necessary’”~~
~~(footnote omitted) (quoting Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328 (2006))),~~ ~~cert.~~
~~granted sub nom .~~ ~~T exas v. California, 140 S. Ct. 1262 (2020).~~
~~382 See, e.g., United States v. Booker, 543 U.S. 220, 248 (2005) (“In today’s context—a highly complex statute,~~
~~interrelated provisions, and a constitutional requirement that creat es fundamental change—we cannot assume that~~
~~Congress, if faced with the statute’s invalidity in key applications, would have preferred to apply the statute in as many~~
~~Congressional Research Service~~
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~~Understanding Federal Legislation~~

~~When a Bill Contains an Inseverability Clause~~
~~In contrast to a severability clause, an inseverability (or non-severability) clause (e.g., Figure 24)~~
~~states that if a court declares any provision or a certain provision of the law unconstitutional, the~~
~~remainder of the statute—or at least some other designated portion of the statute—should fal~~
~~with it.383~~
~~Figure 24. Inseverability Clause~~

Source: American Indian Probate Reform Act of 2004, Pub. L. No. 108-374, § 9, 118 Stat. 1773, 1810 (2004) (S.
~~1721, 108th Cong.), https://www.congress.gov/108/plaws/publ374/PLAW-108publ374.pdf#page=38.~~
~~The Supreme Court has not definitively ruled on the weight that courts should give inseverability~~
~~clauses. However, in Barr (the TCPA case discussed above), the plurality placed these clauses on~~
~~par with severability clauses in terms of enunciating Congress’s intent.384 The plurality stated that~~
~~absent “extraordinary circumstances,” a court “should adhere to the text of the severability or~~
~~nonseverability clause” because “a severability or nonseverability clause leaves no doubt about~~
~~what the enacting Congress wanted if one provision of the law were later declared~~
~~unconstitutional.”385 This opinion echoed what the Court said in dicta in a 1982 decision when it~~
~~suggested that inseverability clauses al ow courts to avoid “speculat[ion]” about what the~~
~~enacting legislatures intended.386 In that case, the Court was interpreting a state statute and~~

~~other instances as possible.”); Texas, 945 F.3d at 396 (“Severability analysis is at its most demanding in the context of~~
~~sprawling (and amended) statutory schemes like the one at issue here [(the Affordable Care Act)].”).~~ ~~See generally~~
~~Robert L. Nightingale, How to Trim a Christm as Tree: Beyond Severability and Inseverability for Om nibus Statutes,~~
~~125 YALE L.J. 1672 (2016) (examining the challenges that severability analysis poses in the context of omnibus~~
~~legislation and proposing alternatives).~~
~~383 See Barr v. Am. Ass’n of Pol. Consultants, 140 S. Ct. 2335, 2349 (2020) (plurality opinion) (“Congress may include~~
~~a nonseverability clause, making clear that the unconstitutionality of one provision means the invalidity of some or all~~
~~of the remainder of the law, to the extent specified in the text of the nonseverability clause. See, e.g., 4 U.S.C. § 125;~~
~~note following 42 U.S.C. § 300aa-1; 94 Stat. 1797.”); MIKVA ET AL., supra note 7, at 86 (“ An inseverability clause is~~
~~one that specifically ties certain provisions togeth er. If one of these provisions, then, is invalidated by the courts, the~~
~~other provisions would also be invalidated by statutory command. Use of this approach would protect important~~
~~legislative compromises from being undermined.”); Israel E. Friedman, Comm ent: Inseverability Clauses in Statutes,~~
~~64 U. CHI. L. REV. 903, 915 (1997) (stating that “ the inclusion of an inseverability clause is an affirmative act by a~~
~~legislature to preserve the coexistence of separate provisions”). As shown in Figure 24, a bill may include an~~
~~inseverability clause under a section called “severability,” but for purposes of differentiating between the two types of~~
~~provisions, this report uses the distinct terms “severability clause” and “inseverability clause.”~~
~~384 Barr, 140 S. Ct. at 2349 (plurality opinion).~~
385 Id.
~~386 Zobel v. Williams, 457 U.S. 55, 65 (1982) (“Here, we need not speculate as to the intent of the Alaska Legislature;~~
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~~remanded the severability question for the state court to decide.387 In subsequent appel ate cases,~~
~~some courts have also treated inseverability clauses like severability clauses, reasoning that they~~
~~give rise to a presumption about what the legislature intended (i.e., in the case of an inseverability~~
~~clause, a presumption against invalidating only the offending portion of the law).388~~
~~Technical and Conforming Amendments~~
~~When a bil would amend the organization or language of an existing law, congressional drafters~~
~~may include technical or conforming amendments to address anticipated inconsistencies. For~~
~~instance, a bil that seeks to add a new definition in alphabetical order to a definitions section of~~
~~an existing statute may need to include a technical amendment directing that the subsequent~~
~~definitions be renumbered. In the example in Figure 25, the bil seeks to add the term~~
~~“derivative” as paragraph 9 in an alphabetical y arranged definitions section of the Commodity~~
~~Exchange Act.389 A technical amendment in the bil re-designates paragraphs 9 through 34 of that~~
~~section as paragraphs 10 through 35 to accommodate the newly defined term.~~

~~the legislation expressly provides that invalidation of any portion of the statute renders the whole invalid . . . .~~
~~However, it is of course for the Alaska courts to pass on the severability clause of the statute .”).~~
~~387~~ ~~Id.~~
~~388 See, e.g., Biszko v. RIHT Fin. Corp., 758 F.2d 769, 773 (1st Cir. 1985) (noting that the “Rhode Island legislature~~
~~included a non-severability clause in the statute” and reasoning that although “ a non -severability clause cannot~~
~~ultimately bind a court, it establishes a presumption of non -severability”); see also Eric S. Fish,~~ ~~Severability as~~
~~Conditionality, 64 EMORY L.J. 1293, 1336–37 (2015) (arguing that courts should give effect to clear inseverability~~
~~clauses because “inseverability is a legislative power and not a judicial one” but noting the views of other scholars who~~
~~have argued that inseverability clauses infringe on the judiciary’s role of construing statutes); Friedman, supra note~~
~~383, at 920–23 (proposing that courts treat clear inseverability clauses as “ dispositive,” rather t han invoking a mere~~
~~presumption in favor of inseverability, because “the inclusion of an inseverability clause is a deliberate act of the~~
~~legislature to enforce a legislative compromise and to ensure that the p rovision [in question] and the remainder of the~~
~~statute operate in tandem”).~~
~~389 See 7 U.S.C. § 1a (2009).~~
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~~Figure 25. Technical Amendment~~

Source: Over-the-Counter Derivatives Markets Act of 2009, H.R. 3795, 111th Cong. § 111 (as introduced,
~~Oct. 13, 2009), https://www.congress.gov/111/bil s/hr3795/BILLS-111hr3795ih.pdf#page=2.~~
~~A bil might also include a conforming amendment if a change that it proposes warrants a similar~~
~~change in another division of the statute or in another law. In the example in Figure 26,~~ ~~the~~might also include a conforming amendment if a change that it proposes warrants a similar change in another division of the statute or in another law. In the example in Figure 26, the re- re-
designation of subsection (l) as subsection (k) in section 623 of the Communications Act required designation of subsection (l) as subsection (k) in section 623 of the Communications Act required
a cross-reference to subsection (l) in section 613 of the statute to be updated to reflect the new a cross-reference to subsection (l) in section 613 of the statute to be updated to reflect the new
~~lettering scheme.~~
lettering scheme. 417 See 7 U.S.C. § 1a (2009). Congressional Research Service 65 Understanding Federal Legislation Figure 26. Conforming Amendment

Source: FederalFederal Communications CommissionCommunications Commission Consolidated Reporting Act of 2012, H.R. 3310, 112th Cong. Consolidated Reporting Act of 2012, H.R. 3310, 112th Cong.
§ 3(e) (as referred§ 3(e) (as referred in Senate, June 4, 2012), https://www.congress.gov/112/bil s/hr3310/BILLS-in Senate, June 4, 2012), https://www.congress.gov/112/bil s/hr3310/BILLS-
112hr3310rfs.pdf#page=6. 112hr3310rfs.pdf#page=6.
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When amendments are labeled as “technical” or “conforming,” courts may be disinclined to When amendments are labeled as “technical” or “conforming,” courts may be disinclined to
construe them as effecting major changes to the statutory scheme, particularly when those construe them as effecting major changes to the statutory scheme, particularly when those
changes are not explicit.changes are not explicit.~~390~~418 This is not to say that the changes embedded in a technical or This is not to say that the changes embedded in a technical or
conforming amendment conforming amendment ~~wil~~ will be obvious to the reader. Sometimes, the changes are only apparent be obvious to the reader. Sometimes, the changes are only apparent
once the reader examines the amendments in the context of any cross-referenced provisions or the once the reader examines the amendments in the context of any cross-referenced provisions or the
statutory scheme as a whole. But, in the Supreme Court’s words, Congress statutory scheme as a whole. But, in the Supreme Court’s words, Congress ~~general y~~generally does not does not
“hide elephants in mouseholes”“hide elephants in mouseholes”~~391~~419 by making “radical—but entirely implicit—change[s]” to the by making “radical—but entirely implicit—change[s]” to the
law through technical and conforming amendments.law through technical and conforming amendments.~~392~~
420 Nevertheless, a provision’s designation as a “technical” or “conforming” amendment does not Nevertheless, a provision’s designation as a “technical” or “conforming” amendment does not
resolve whether it makes a substantive change, just as other types of headings and subheadings do resolve whether it makes a substantive change, just as other types of headings and subheadings do
not control the meaning of the provisions that they precede.not control the meaning of the provisions that they precede.~~393~~421 For example, the dispute in For example, the dispute in
Burgess v. United States centered on a “conforming amendment[]” that changed the definition of centered on a “conforming amendment[]” that changed the definition of
“felony drug offense” in the Controlled Substances Act from “an offense that is a“felony drug offense” in the Controlled Substances Act from “an offense that is a felony”” under under
any federal, state, or foreign law pertaining to certain drug offenses to “an offense that is any federal, state, or foreign law pertaining to certain drug offenses to “an offense that is
punishable by imprisonment for more than one year” under such laws.394 The petitioner in the
~~case argued that he was not subject to a mandatory sentencing enhancement for a prior “felony~~
~~drug offense” because his previous conviction, although punishable by imprisonment for more~~
~~than one year, constituted a misdemeanor rather than a felony under state law.395 He argued that~~
~~Congress did not actual y remove the requirement that the prior offense constitute a felony, but~~
~~merely added a requirement that the prior offense carry a term of imprisonment greater than one~~
~~year, pointing to the inclusion of the amendment among other “conforming amendments” in the~~
~~enacting bil .396 The Court rejected the petitioner’s interpretation, reasoning that “Congress did~~
~~not disavow any intent to make substantive changes; rather, the amendments were ‘conforming’~~
~~because they harmonized sentencing provisions” in the Controlled Substances Act with another~~
~~federal drug statute.397 The Court further reasoned that “[t]reating the amendments as~~
~~nonsubstantive would be inconsistent with their text.398~~

~~390~~ 418 See, e.g., United States v. Elec. Data Sys., United States v. Elec. Data Sys. Fed. Corp., 857 F.2d 1444, 1447 (Fed. Cir. 1988)Fed. Corp., 857 F.2d 1444, 1447 (Fed. Cir. 1988) (stating that the court (stating that the court
waswas “loath to give a technical amendment substantive effect that would undermine the Postal Service’s independence “loath to give a technical amendment substantive effect that would undermine the Postal Service’s independence
that ‘was a part of Congress’ general design’”that ‘was a part of Congress’ general design’” (citation omitted)). (citation omitted)).
~~391~~ 419 Cyan, Inc. v. Beaver Cty. Emps. Ret. Fund, Cyan, Inc. v. Beaver Cty. Emps. Ret. Fund, 138 S.138 S. Ct. 1061, 1071 (2018) (quoting Whitman v. Am. Ct. 1061, 1071 (2018) (quoting Whitman v. Am. ~~T ruck ing~~Trucking
Ass’ns, 531 U.S.Ass’ns, 531 U.S. 457, 468 (2001)). 457, 468 (2001)).
~~392~~420 Id. (alteration in original) (quoting Dir. of Revenue of Mo. v. CoBank ACB, (alteration in original) (quoting Dir. of Revenue of Mo. v. CoBank ACB, 531 U.S.531 U.S. 316, 324 (2001)). 316, 324 (2001)).
~~393~~421 See Asociacion de Empleados del Area Canalera v. Pan. Canal CommAsociacion de Empleados del Area Canalera v. Pan. Canal Comm ’n, 329 F.3d 1235, 1240 n.3 (11th Cir. 2003) ’n, 329 F.3d 1235, 1240 n.3 (11th Cir. 2003)
(describing(describing party’s “party’s “ generalization that technical and conforming amendments never make substantive changes in the generalization that technical and conforming amendments never make substantive changes in the
law”law” as “simply unwarranted” and unsupported by Supremeas “simply unwarranted” and unsupported by Supreme Court precedent); MudgeCourt precedent); Mudge v. United States, 308 F.3d 1220, v. United States, 308 F.3d 1220,
1229 (Fed. Cir. 2002) (applying “1229 (Fed. Cir. 2002) (applying “ the usual tools of statutory construction” to evaluate whether the “the usual tools of statutory construction” to evaluate whether the “ affirmative affirmative
addition” of a wordaddition” of a word to a statutory provision through a “technical and conforming amendment” made substantive to a statutory provision through a “technical and conforming amendment” made substantive
changes to the provision (internal quotation marks and citation omitted)). changes to the provision (internal quotation marks and citation omitted)).
~~394 553 U.S. 124, 133–35 (2008) (internal quotation marks and citations omitted).~~
~~395 Id. at 126.~~
~~396 Id. at 134–35.~~
~~397 Id. at 135.~~
398 Id.
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~~Authorization of Appropriations~~
~~A bil whose substantive provisions would require the expenditure of federal funds may include a~~
section authorizing appropriations (e.g., Figure 27~~).399~~Congressional Research Service 66 link to page 73 Understanding Federal Legislation punishable by imprisonment for more than one year” under such laws.422 The petitioner in the case argued that he was not subject to a mandatory sentencing enhancement for a prior “felony drug offense” because his previous conviction, although punishable by imprisonment for more than one year, constituted a misdemeanor rather than a felony under state law.423 He argued that Congress did not actually remove the requirement that the prior offense constitute a felony, but merely added a requirement that the prior offense carry a term of imprisonment greater than one year, pointing to the inclusion of the amendment among other “conforming amendments” in the enacting bill.424 The Court rejected the petitioner’s interpretation, reasoning that “Congress did not disavow any intent to make substantive changes; rather, the amendments were ‘conforming’ because they harmonized sentencing provisions” in the Controlled Substances Act with another federal drug statute.425 The Court further reasoned that “[t]reating the amendments as nonsubstantive would be inconsistent with their text.426 Authorization of Appropriations A bill whose substantive provisions would require the expenditure of federal funds may include a section authorizing appropriations (e.g., Figure 27).427 While “[l]anguage requiring or permitting While “[l]anguage requiring or permitting
government action carries an implicit authorization for an unlimited amount of money to be government action carries an implicit authorization for an unlimited amount of money to be
appropriated for that purpose,” a appropriated for that purpose,” a ~~bil may stil~~ bill may still include an express “authorization of include an express “authorization of
appropriations” provision “to limit the authorization to the amount or fiscal years stated.”appropriations” provision “to limit the authorization to the amount or fiscal years stated.”~~400~~428
Although authorization is part of the appropriations process,Although authorization is part of the appropriations process,~~401~~429 an authorization of an authorization of
appropriations—whether express or implied—does not appropriations—whether express or implied—does not itself appropriate any funds: that is, it does appropriate any funds: that is, it does
not provide an agency with “budget authority” or “the authority to make payments from the not provide an agency with “budget authority” or “the authority to make payments from the
~~Treasury.”402~~

~~399 See generally CRS~~ Treasury.”430 422 553 U.S. 124, 133–35 (2008) (internal quotation marks and citations omitted). 423 Id. at 126. 424 Id. at 134–35. 425 Id. at 135. 426 Id. 427 See generally CRS Report R42098, Report R42098, Authorization of Appropriations: Procedural and Legal Issues, , ~~supra~~supra note note ~~258.~~
~~400~~268. 428 HOLC Guide to Legislative Drafting, , supra note 18; note 18; see also FILSON & STROKOFF, FILSON & STROKOFF, supra note 37, at 173 (positing note 37, at 173 (positing
that “the only legitimate purpose of a provision authorizing appropriations is to place a ceiling on their amount, or to that “the only legitimate purpose of a provision authorizing appropriations is to place a ceiling on their amount, or to
limit the period for which they may be made or within which the money appropriated may be spent”).limit the period for which they may be made or within which the money appropriated may be spent”).
~~401~~ 429 According to the Government Accountability Office (GAO), the “typical sequence” for appropriating funds is: According to the Government Accountability Office (GAO), the “typical sequence” for appropriating funds is:
(1) “(1) “ organic legislation”—that is, “organic legislation”—that is, “ legislation that creates an agency, establishes a program, or prescribes a function”; legislation that creates an agency, establishes a program, or prescribes a function”;
(2) “authorization of (2) “authorization of ~~appropriat ions~~appropriations, if not contained in the organic legislation”; and (3) “the appropriation act.” U.S. , if not contained in the organic legislation”; and (3) “the appropriation act.” U.S.
GOV’T ACCOUNTABILITY OFF., GAO-16-464SP, PRINCIPLES OF FEDERAL APPROPRIATIONS LAW 2-54, 2-56 (4th ed., rev. GOV’T ACCOUNTABILITY OFF., GAO-16-464SP, PRINCIPLES OF FEDERAL APPROPRIATIONS LAW 2-54, 2-56 (4th ed., rev.
2016); 2016); see also Me. Cmty. Health Options v. United States, 140 S.Me. Cmty. Health Options v. United States, 140 S. Ct. 1308, 1319 (2020) (“Ct. 1308, 1319 (2020) (“ Creating and satisfying a Creating and satisfying a
Government obligation, therefore, typically involves four steps: (1) Congress passesGovernment obligation, therefore, typically involves four steps: (1) Congress passes an organic statutean organic statute . . . that creates a . . . that creates a
program, agency, or function; (2) Congress passesprogram, agency, or function; (2) Congress passes an Actan Act authorizing appropriations; (3) Congress enacts the authorizing appropriations; (3) Congress enacts the
appropriation, granting “budget authority” to incur obligations and make payments, and designating the fundsappropriation, granting “budget authority” to incur obligations and make payments, and designating the funds to be to be
drawn;drawn; and (4) the relevant Government entity begins incurring the obligation.”).and (4) the relevant Government entity begins incurring the obligation.”).
~~402~~ 430 GAO, GAO, supra note note ~~401~~429, at 2-54 (“[A]ppropriation authorization legislation typically does not provide budget , at 2-54 (“[A]ppropriation authorization legislation typically does not provide budget
authority or an appropriation.”); authority or an appropriation.”); id. at 2-1 (explaining that “Congress finances federal programs and activities by at 2-1 (explaining that “Congress finances federal programs and activities by
providing ‘budgetproviding ‘budget authority,’ which grants agencies authority to enter into financial obligations that will result in authority,’ which grants agencies authority to enter into financial obligations that will result in
immediate or future outlays of government funds”); immediate or future outlays of government funds”); id. at 2-3 (explaining that “an appropriation is a lawat 2-3 (explaining that “an appropriation is a law authorizing the authorizing the
payment of funds from the payment of funds from the ~~T reasury~~Treasury”); ”); see also CRSCRS Report R42098, Report R42098, Authorization of Appropriations: Procedural and
Legal Issues,, supra note note ~~258~~268, at 1 (stating that “, at 1 (stating that “ [b]y itself . . . an authorization does not provide funding for government [b]y itself . . . an authorization does not provide funding for government
activities”).activities”).
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Figure 27. Authorization of Appropriations

Source: BorderBorder Security for AmericaSecurity for America Act of 2017, H.R. 3548, 115th Cong. § 151 (as reportedAct of 2017, H.R. 3548, 115th Cong. § 151 (as reported in House, in House,
Mar. 23, 2018), https://www.congress.gov/115/bil s/hr3548/BILLS-115hr3548rh.pdf#page=94. Mar. 23, 2018), https://www.congress.gov/115/bil s/hr3548/BILLS-115hr3548rh.pdf#page=94.
There is no blanket constitutional or statutory requirement that Congress authorize an There is no blanket constitutional or statutory requirement that Congress authorize an
appropriation before appropriating funds. However, certain statutes require a specific appropriation before appropriating funds. However, certain statutes require a specific
authorization.authorization.~~403~~431 In addition, congressional rules “ In addition, congressional rules “~~general y~~generally prohibit the reporting of an prohibit the reporting of an
appropriation in a general appropriation appropriation in a general appropriation ~~bil~~ bill for expenditures not previously authorized by for expenditures not previously authorized by
law.”law.”~~404~~432 According to GAO, failure to comply with these requirements does not render a According to GAO, failure to comply with these requirements does not render a
~~congressional y~~congressionally enacted appropriation substantively invalid; though noncompliance may make an enacted appropriation substantively invalid; though noncompliance may make an
appropriations appropriations ~~bil~~ bill moving through the House or Senate susceptible to a procedural moving through the House or Senate susceptible to a procedural ~~chal enge.405~~

~~403 See GAO, supra note 401~~challenge.433 431 See GAO, supra note 429, at 2-55; CRS Report R42098, , at 2-55; CRS Report R42098, Authorization of Appropriations: Procedural and Legal
Issues, , ~~supra~~supra note note ~~258~~268, at 8–9 (“, at 8–9 (“ There is no constitutional or general statutory requirement that an appropriation must There is no constitutional or general statutory requirement that an appropriation must
be precededbe preceded by a specific act that authorized the appropriation. . . . A fewby a specific act that authorized the appropriation. . . . A few statutes, however, require that funds to carry statutes, however, require that funds to carry
out particular activities may not be appropriated unless they have been specifically authorized.”).out particular activities may not be appropriated unless they have been specifically authorized.”).
~~404~~ 432 GAO, GAO, supra note note ~~401~~429,, at 2-55 (citing House Ruleat 2-55 (citing House Rule XXI(2)(a)(1) and Senate RuleXXI(2)(a)(1) and Senate Rule XVI). XVI).
~~405~~433 Id. at 2-55–2-56. at 2-55–2-56.
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Even so, “an authorization act is more than an academic exercise.” Even so, “an authorization act is more than an academic exercise.”~~406~~434 Unless altered in the Unless altered in the
appropriations act, “appropriations to carry out enabling or authorizing laws must be expended in appropriations act, “appropriations to carry out enabling or authorizing laws must be expended in
accordance with the original authorization both as to the amount of funds to be expended and the accordance with the original authorization both as to the amount of funds to be expended and the
nature of the work authorized.”nature of the work authorized.”~~407~~435 Accordingly, courts and agencies may construe authorization- Accordingly, courts and agencies may construe authorization-
of-appropriations language to determine whether a particular agency action or expenditure was of-appropriations language to determine whether a particular agency action or expenditure was
permissible.permissible.~~408~~
436 Common Terms, Phrases, and Interpretive Issues
This section of the report discusses terms and phrases commonly used in federal legislationThis section of the report discusses terms and phrases commonly used in federal legislation and and
the interpretive questions associated with them. It begins by listing “three important conventions” the interpretive questions associated with them. It begins by listing “three important conventions”
in in ~~bil~~ bill drafting identified by the Office of the Legislative Counsel for the U.S. House of drafting identified by the Office of the Legislative Counsel for the U.S. House of
Representatives (HOLC). It then analyzes how courts have interpreted other commonly used Representatives (HOLC). It then analyzes how courts have interpreted other commonly used
phrases. phrases.
HOLC’s “Three Important Conventions”
In its onlineIn its online Guide to Legislative Drafting, HOLC highlights three important drafting conventions , HOLC highlights three important drafting conventions
used in federal legislation.used in federal legislation.~~409~~
437 “Means” Versus “Includes”
When legislation When legislation includes defined terms, the definitions includes defined terms, the definitions ~~typical y~~typically begin by stating that a certain begin by stating that a certain
term “means” X or “includes” Y, but these words are not synonymous. The term “means” denotes term “means” X or “includes” Y, but these words are not synonymous. The term “means” denotes
an exclusive definition while “includes” an exclusive definition while “includes” ~~general y~~generally prefaces a non-exhaustive list. prefaces a non-exhaustive list.~~410~~438 However, However,
context is important.context is important.~~411~~439 If the term “includes” is followed by the language “but is not limited to” If the term “includes” is followed by the language “but is not limited to”

~~406~~ 434 Id. at 2-57. at 2-57.
~~407~~435 Id.
~~408~~436 See, e.g.,, U.S.U.S. Dep’t of the Air Force v. Fed.Dep’t of the Air Force v. Fed. Labor Rels. Auth., 648 F.3d 841, 846–48 (D.C. Cir. 2011)Labor Rels. Auth., 648 F.3d 841, 846–48 (D.C. Cir. 2011) (holding that (holding that
statutes authorizing the Air Force’s expenditure of appropriated funds for civilian employee uniforms or uniform statutes authorizing the Air Force’s expenditure of appropriated funds for civilian employee uniforms or uniform
allowancesallowances ~~did~~ did not authorize expenditures for uniform cleaning services, and thus Air Forcenot authorize expenditures for uniform cleaning services, and thus Air Force had no obligation to had no obligation to
bargainbargain with union regardingwith union regarding such services). such services). Cf. United States v. Navajo Nation, 556 U.S. 287, 299–300 (2009)United States v. Navajo Nation, 556 U.S. 287, 299–300 (2009)
(reasoning that a provision in the Navajo-Hopi Rehabilitation Act requiring the Secretary of the Interior to consider (reasoning that a provision in the Navajo-Hopi Rehabilitation Act requiring the Secretary of the Interior to consider
recommendations from the tribal councils recommendations from the tribal councils ~~app lied~~applied only to projects enumerated in the act, observing that Congress only to projects enumerated in the act, observing that Congress
authorized appropriations in specific amounts for each listed project). authorized appropriations in specific amounts for each listed project).
~~409~~437 See HOLC Guide to Legislative Drafting, , supra note 18. note 18.
~~410~~438 Id.; ; see also BurgessBurgess v. United States, 553 U.S. 124, 130 (2008) (“As a rule, [a] definition which declares what a v. United States, 553 U.S. 124, 130 (2008) (“As a rule, [a] definition which declares what a
term ‘means’ . . . excludesterm ‘means’ . . . excludes any meaning that is not stated.” (alterations in original) (quoting Colautti v. Franklin, 439 any meaning that is not stated.” (alterations in original) (quoting Colautti v. Franklin, 439
U.S.U.S. 379, 392–93 n.10 (1979))); United States v. Wyatt, 408 F.3d 1257, 379, 392–93 n.10 (1979))); United States v. Wyatt, 408 F.3d 1257, ~~126 1~~1261 (9th Cir. 2005) (reasoning that the “ (9th Cir. 2005) (reasoning that the “ use use
of the wordof the word ‘includes’” in the statutory definition “suggests the list [of items that follows] is‘includes’” in the statutory definition “suggests the list [of items that follows] is ~~non~~ non-exhaustive rather than -exhaustive rather than
exclusive”). exclusive”).
~~411~~439 Courts construing the word “including” Courts construing the word “including” in non-definitional provisions have observed that “[d]epending on context, in non-definitional provisions have observed that “[d]epending on context,
the word ‘including’the word ‘including’ can be either illustrative or enlarging.” Newcan be either illustrative or enlarging.” New York v. Dep’t of Justice, 951 F.3d 84, 102 (2d Cir. York v. Dep’t of Justice, 951 F.3d 84, 102 (2d Cir.
2020). As one appellate court explained, 2020). As one appellate court explained,
[T [T ]he term “including” is perhaps more often than not ]he term “including” is perhaps more often than not ~~t he~~the introductory term for an incomplete list introductory term for an incomplete list
of examples. of examples. ~~T hus, when we~~ Thus, when we say that several colors, “including red, bluesay that several colors, “including red, blue and yellow”and yellow” are in the are in the
rainbow, werainbow, we are givingare giving only examples, and we do not mean that the rainbow does not include other only examples, and we do not mean that the rainbow does not include other
colors. In that sense, an “colors. In that sense, an “ including”including” ~~clause~~ clause is illustrative. However, the term “is illustrative. However, the term “ including” can also including” can also
introduce restrictive or definitional terms. If we say that “all licensed drivers, includingintroduce restrictive or definitional terms. If we say that “all licensed drivers, including applicants
for driver’s licenses, shall take an eye exam,” the wordfor driver’s licenses, shall take an eye exam,” the word “including” means “and” or “in addition “including” means “and” or “in addition
to.” to.” ~~T hat~~That meaning is derived from the fact that a “licensed driver,” by definition, excludes an meaning is derived from the fact that a “licensed driver,” by definition, excludes an
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in some places in a statute but not others, a court could interpret “includes,” when used in in some places in a statute but not others, a court could interpret “includes,” when used in
isolation, as introducing an exhaustive list.isolation, as introducing an exhaustive list.~~412~~440 This result is because courts This result is because courts ~~general y~~generally presume that presume that
“when Congress includes particular language in one section of a statute but omits it in another . . . “when Congress includes particular language in one section of a statute but omits it in another . . .
Congress intended a difference in meaning.”Congress intended a difference in meaning.”~~413~~441 In addition, the object of “includes” in any given In addition, the object of “includes” in any given
definition can definition can ~~stil limit~~ still limit the scope of that definition. Because the terms in the list are the scope of that definition. Because the terms in the list are ~~il ustrative~~illustrative, ,
persons or things that do not share common traits with those terms may not be considered to persons or things that do not share common traits with those terms may not be considered to ~~fal~~
fall within the definition. For example, in 2010, the Supreme Court ruled that a statutory definition of within the definition. For example, in 2010, the Supreme Court ruled that a statutory definition of
“foreign state” that“foreign state” that expressly “include[d]” political subdivisions and agencies or expressly “include[d]” political subdivisions and agencies or
instrumentalities, did not also encompass foreign officials.instrumentalities, did not also encompass foreign officials.~~414~~442 While acknowledging that “the While acknowledging that “the
word ‘include’ can signal that the list that follows is meant to be word ‘include’ can signal that the list that follows is meant to be ~~il ustrative~~illustrative rather than rather than
exhaustive,” the Court reasoned that the definition “exhaustive,” the Court reasoned that the definition “~~stil ”~~ still” did not “encompass officials, because did not “encompass officials, because
the types of defendants listed are the types of defendants listed are al all entities.”entities.”~~415~~443
“Shall” Versus “May”
Congressional drafters Congressional drafters ~~typical y~~typically use the term “ use the term “~~shal~~ shall” to denote that an action is required and ” to denote that an action is required and
“may” to indicate that an action is permitted, but not required.“may” to indicate that an action is permitted, but not required.~~416 Usual y~~444 Usually, one can silently , one can silently
substitute the word “must” for “substitute the word “must” for “~~shal~~ shall” when reading a ” when reading a ~~bil~~ bill provision, but not always. For example, provision, but not always. For example,
~~a bil~~ a bill that reads, “no person that reads, “no person ~~shal~~ shall commit a crime”commit a crime”~~417~~445 cannot be translated cannot be translated ~~literal y~~literally as “no person as “no person
must commit a crime” without implying that a person commit a crime” without implying that a person may commit a crime.commit a crime.~~418~~446 In this example, In this example,
“no person “no person ~~shal~~ shall commit a crime” means “no person commit a crime” means “no person may commit a crime”—in other words, a commit a crime”—in other words, a
person person may not commit a crime; crimes are prohibited. commit a crime; crimes are prohibited. ~~Additional y~~Additionally, whether “, whether “~~shal~~ shall” denotes a ” denotes a
command depends on context.command depends on context.~~419 A bil~~ 447 A bill that reads, “the Secretary that reads, “the Secretary ~~shal~~ shall have the authority to adopt have the authority to adopt

“applicant,” and therefore if we intend to include applicants we “applicant,” and therefore if we intend to include applicants we must say so. must say so.
Adams Adams v. Dole, 927 F.2d 771, 776–77 (4th Cir. 1991). v. Dole, 927 F.2d 771, 776–77 (4th Cir. 1991).
~~412~~440 See HOLC Guide to Legislative Drafting, , supra note 18 (noting that the phrase “‘includes, but is not limited to’ is note 18 (noting that the phrase “‘includes, but is not limited to’ is
redundant,” but that “redundant,” but that “ using it in some places out of an abundance of caution could causeusing it in some places out of an abundance of caution could cause a limitation to be read into a limitation to be read into
places where it isplaces where it is ~~not~~ not used”); used”); cf. Williamson v. J.C.Williamson v. J.C. Penney Life Ins. Co., 226 F.3d 408, 410 (5th Cir. 2000) (finding Penney Life Ins. Co., 226 F.3d 408, 410 (5th Cir. 2000) (finding
that “[l]ittle meaning can be gleaned”that “[l]ittle meaning can be gleaned” from the word “includes” in the parties’ insurance contract because the contract from the word “includes” in the parties’ insurance contract because the contract
usedused the term “means” and the phrase “includes, but is not limited to” in other places); the term “means” and the phrase “includes, but is not limited to” in other places); id. at 411 (Barksdale, J., at 411 (Barksdale, J.,
concurring in the judgment) (reasoning that “the different uses, in [the same] provision, of ‘includes’ and of the concurring in the judgment) (reasoning that “the different uses, in [the same] provision, of ‘includes’ and of the
immediately followingimmediately following ‘includes, but‘includes, but is not limited to’” demonstrates that the former introduced “a complete, or is not limited to’” demonstrates that the former introduced “a complete, or
exhaustive, list” and the latter, “a partial, or illustrative, one”). exhaustive, list” and the latter, “a partial, or illustrative, one”).
~~413~~441 Loughrin v. United States, 134 S. Ct. 2384, 2390 (2014) (internal quotation marks and citation omitted); Loughrin v. United States, 134 S. Ct. 2384, 2390 (2014) (internal quotation marks and citation omitted); see also id.
(noting the “‘cardinal principle’ of interpretation that courts ‘must give effect, if possible, to every clause and word(noting the “‘cardinal principle’ of interpretation that courts ‘must give effect, if possible, to every clause and word of a of a
statute’” (quoting Williams v. statute’” (quoting Williams v. ~~T aylor~~Taylor, 529 U.S. 362, 404 (2000))). , 529 U.S. 362, 404 (2000))).
~~414~~442 Samantar v. Yousuf, Samantar v. Yousuf, 560 U.S.560 U.S. 305, 314, 317–19 (2010). 305, 314, 317–19 (2010).
~~415~~443 Id. at 317–18 (noting that other contextual clues in the act at 317–18 (noting that other contextual clues in the act ~~support ed~~supported this interpretation). this interpretation). But cf. S.D. Warren Co. v. S.D. Warren Co. v.
Me. Bd. of Envt’l Prot., 547 U.S. 370, 379 (2006) (reasoning that “giving one example does not convert express Me. Bd. of Envt’l Prot., 547 U.S. 370, 379 (2006) (reasoning that “giving one example does not convert express
inclusion into restrictive equation”). inclusion into restrictive equation”).
~~416~~444 HOLC Guide to Legislative Drafting, , supra note 18; note 18; see also KingdomwareKingdomware ~~T echs~~ Techs., Inc. v. United States, 136 S.., Inc. v. United States, 136 S. Ct. Ct.
1969, 1977 (2016) (“1969, 1977 (2016) (“ Unlike the word ‘may,’ which implies discretion, the word ‘shall’ usuallyUnlike the word ‘may,’ which implies discretion, the word ‘shall’ usually connotes a connotes a
requirement.”); requirement.”); see, e.g., NLRB, NLRB v. SW Gen.,v. SW Gen., Inc., 137 S. Ct. 929, 940 (2017) (describing statutory provision stating Inc., 137 S. Ct. 929, 940 (2017) (describing statutory provision stating
that the first assistant to a vacant office “shall perform” acting duties as “mandatory and selfthat the first assistant to a vacant office “shall perform” acting duties as “mandatory and self -executing”).-executing”).
~~417~~445 Cf. Spratt v. State, 41 A.3d 984, 986 n.1 (R.I. 2012). Spratt v. State, 41 A.3d 984, 986 n.1 (R.I. 2012).
~~418~~446 See Bryan A. Garner, Bryan A. Garner, Shall We Abandon Shall?, ABA JOURNAL (Aug. 1, 2012), , ABA JOURNAL (Aug. 1, 2012),
https://www.abajournal.com/magazine/article/shall_we_abandon_shallhttps://www.abajournal.com/magazine/article/shall_we_abandon_shall (“ (“What about laws stating that ‘No person What about laws stating that ‘No person
shall .shall .. . . ?’ If . ?’ If shall means ‘has a duty to’ or ‘is required means ‘has a duty to’ or ‘is required to,’ we have a problem. We’re negating a command to do to,’ we have a problem. We’re negating a command to do
something: You’re not requiredsomething: You’re not required to do it (but, by implication, you may if you like).”). to do it (but, by implication, you may if you like).”).
~~419~~447 See ~~T rumball~~Trumball Invs. Ltd. I v. Wachovia Bank, N.A., 436 F.3d 443, 447 (4th Cir. 2006) (“The word ‘shall’ cannot be Invs. Ltd. I v. Wachovia Bank, N.A., 436 F.3d 443, 447 (4th Cir. 2006) (“The word ‘shall’ cannot be
interpreted in a vacuum, . . . and the wordsinterpreted in a vacuum, . . . and the words around it help elucidatearound it help elucidate the overall meaning of the clause.”).the overall meaning of the clause.”).
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rules” does not mean that the Secretary rules” does not mean that the Secretary must adopt rules; it simply adopt rules; it simply authorizes her to adopt rules her to adopt rules
because of the inclusion of the words “have the authority to”because of the inclusion of the words “have the authority to” after “after “~~shal .”420~~
shall.”448 While “ While “~~shal~~ shall” and “may” ” and “may” ~~usual y~~usually have distinct meanings, the terms “ have distinct meanings, the terms “~~shal~~ shall not” and “may not” not” and “may not”
both prohibit conduct.both prohibit conduct.~~421~~449 Even so, HOLC recommends the latter phrasing to avoid “arcane” Even so, HOLC recommends the latter phrasing to avoid “arcane”
alternative interpretations alternative interpretations ~~potential y~~ potentially associated with “associated with “~~shal not.”422~~
shall not.”450 Singular and Plural
Unless the context suggests otherwise, a Unless the context suggests otherwise, a ~~bil~~ bill’s use of a term in its singular form includes the ’s use of a term in its singular form includes the
plural and vice versa.plural and vice versa.~~423~~451 For example, if a law prohibits “a pharmacist” from knowingly For example, if a law prohibits “a pharmacist” from knowingly ~~sel ing~~
selling “misbranded drugs,” it would also prohibit several pharmacists from knowingly “misbranded drugs,” it would also prohibit several pharmacists from knowingly ~~sel ing~~selling a single a single
misbranded drug. This rule of construction appears in the first chapter of the misbranded drug. This rule of construction appears in the first chapter of the U.S. Code (i.e., the (i.e., the
“Dictionary Act”) and applies to “any Act of Congress.”“Dictionary Act”) and applies to “any Act of Congress.”~~424~~452 HOLC nevertheless recommends the HOLC nevertheless recommends the
use of the singular for clarity when drafting federal legislation.use of the singular for clarity when drafting federal legislation.~~425~~453
Contextual clues can override the interchangeability of singular and plural meanings. In Contextual clues can override the interchangeability of singular and plural meanings. In Life
Technologies Corp. v. Promega Corp., the Supreme Court considered whether a party that ., the Supreme Court considered whether a party that
supplied a single component of a multicomponent invention for manufacture abroad violated a supplied a single component of a multicomponent invention for manufacture abroad violated a
statute prohibiting the supply of “‘statute prohibiting the supply of “‘al all or a substantial portion’ of the or a substantial portion’ of the components of a patented of a patented
invention for combination abroad.”invention for combination abroad.”~~426~~454 The Court held that the term “substantial portion” denoted The Court held that the term “substantial portion” denoted
a quantitative—rather than a qualitative—measure, and that a single component of an invention a quantitative—rather than a qualitative—measure, and that a single component of an invention
could never constitute a “substantial portion” of the inventioncould never constitute a “substantial portion” of the invention under the statute.under the statute.~~427~~455 The Court The Court
reasoned that “[t]ext specifying a substantial portion of ‘components,’ plural, indicates that reasoned that “[t]ext specifying a substantial portion of ‘components,’ plural, indicates that
multiple components constitute the substantial portion.”multiple components constitute the substantial portion.”~~428~~456 The Court acknowledged that “[t]aken The Court acknowledged that “[t]aken
alone, [the statute’s] reference to ‘components’ might plausibly be read to encompass alone, [the statute’s] reference to ‘components’ might plausibly be read to encompass
‘component’ in the singular” because of the Dictionary Act’s rule of construction about singular ‘component’ in the singular” because of the Dictionary Act’s rule of construction about singular
and plural terms.and plural terms.~~429~~457 However, the Court held that the statute’s “text, context, and structure” However, the Court held that the statute’s “text, context, and structure”

~~420~~ 448 See id. (“‘Shall in its discretion’ has an entirely different meaning than ‘shall’ standing (“‘Shall in its discretion’ has an entirely different meaning than ‘shall’ standing ~~alon e~~alone. Any other . Any other
interpretation would treat ‘in its discretion’ as mere surplusage,interpretation would treat ‘in its discretion’ as mere surplusage, which courts are disinclinedwhich courts are disinclined to do.”).to do.”).
~~421~~ 449 See Key Med. Supply,Key Med. Supply, Inc. v. Burwell,Inc. v. Burwell, 764 F.3d 955, 958 (8th Cir. 2014) (reasoning that “Congress granted 764 F.3d 955, 958 (8th Cir. 2014) (reasoning that “Congress granted
relatively unconstrained authority to the Agency as to many issues,relatively unconstrained authority to the Agency as to many issues, while narrowly defining and limiting authority as to while narrowly defining and limiting authority as to
other issues”other issues” through “the statute’s use of the terms ‘may’ to identify factors for the Agency’s discretionary through “the statute’s use of the terms ‘may’ to identify factors for the Agency’s discretionary
consideration; ‘shall’ to identify mandatory tasks; and ‘may not’ or ‘shall not’ to identify prohibited actions”). consideration; ‘shall’ to identify mandatory tasks; and ‘may not’ or ‘shall not’ to identify prohibited actions”).
~~422~~450 HOLC Guide to Legislative Drafting, , supra note 18; note 18; see also HOLC MANUAL ON DRAFTING STYLE, HOLC MANUAL ON DRAFTING STYLE, supra note 1, at note 1, at
62 (recommending use62 (recommending use of “may not” for denying a right, privilege, or power, and “shall not” for directing that an action of “may not” for denying a right, privilege, or power, and “shall not” for directing that an action
not be taken, but noting that a “not be taken, but noting that a “ distinction may be made that ‘shall not’ speaks to the person subject to the prohibition distinction may be made that ‘shall not’ speaks to the person subject to the prohibition
and is silent as to whether an act done by a person in violation of the prohibition is nevertheless valid (particularly as to and is silent as to whether an act done by a person in violation of the prohibition is nevertheless valid (particularly as to
an innocent 3rd party)”); FILSON & STROKOFF, an innocent 3rd party)”); FILSON & STROKOFF, supra note 37, at 286 (“One could also arguenote 37, at 286 (“One could also argue that ‘A person shall not’ that ‘A person shall not’
literally means that a person does not have a duty to act, but still has the discretion to act.” (footnote omitted)). literally means that a person does not have a duty to act, but still has the discretion to act.” (footnote omitted)).
~~423~~451 See 1 U.S.C.1 U.S.C. § 1 (setting out “[r]ules of construction” for the § 1 (setting out “[r]ules of construction” for the U.S. Code and stating that “[i]n determining the and stating that “[i]n determining the
meaning of any Act of Congress,meaning of any Act of Congress, unless the context indicates otherwise—words importing the singular includeunless the context indicates otherwise—words importing the singular include and and
apply to several persons, parties, or things” and “words importing the plural includeapply to several persons, parties, or things” and “words importing the plural include the singular”).the singular”).
~~424~~ 452 1 U.S.C. 1 U.S.C. § § 1.1. See supra notes 222–25 and accompanying text for a discussionnotes 222–25 and accompanying text for a discussion of the Dictionary Act. of the Dictionary Act.
~~425~~453 See HOLC Guide to Legislative Drafting, , supra note 18note 18 (noting the possibility that someone could interpret the (noting the possibility that someone could interpret the
provision “Drivers may not run red lights” to mean that a provision “Drivers may not run red lights” to mean that a ~~violat ion~~violation occurs only when multiple drivers run multiple red occurs only when multiple drivers run multiple red
lights). lights).
~~426~~454 Life Life ~~T echs~~Techs. Corp. v. Promega Corp., 137 S.. Corp. v. Promega Corp., 137 S. Ct. 734, 737 (2017) (emphasis added) (quoting 35 U.S.C.Ct. 734, 737 (2017) (emphasis added) (quoting 35 U.S.C. § 271(f)(1)). § 271(f)(1)).
~~427~~455 Id. at 739–41, 743. at 739–41, 743.
~~428~~456 Id. at 741. at 741.
~~429~~457 Id. at 742. at 742.
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demonstrate that “when Congress said ‘components,’ plural, it meant plural, and when it said demonstrate that “when Congress said ‘components,’ plural, it meant plural, and when it said
‘component,’ singular, it meant singular.”‘component,’ singular, it meant singular.”~~430~~458 In particular, the Court observed that a companion In particular, the Court observed that a companion
provision in the statute separately prohibited the supply of a single component “that is provision in the statute separately prohibited the supply of a single component “that is ~~especial y~~especially
made or made or ~~especial y~~especially adapted for use in the invention” under certain circumstances. adapted for use in the invention” under certain circumstances.~~431~~459 The Court The Court
reasoned that reading the “substantial portion” provision at issue to cover “reasoned that reading the “substantial portion” provision at issue to cover “any single component single component
would not only leave littlewould not only leave little room for [its companion provision], but would also undermine [the room for [its companion provision], but would also undermine [the
companion provision’s] express reference to a single component ‘companion provision’s] express reference to a single component ‘~~especial y~~especially made or made or ~~especial y~~
especially adapted for use in the invention.’”460 Reference Words Another common interpretive issue in federal bills is determining the object of words that refer to other items or concepts, whether within or outside of the bill. As with language generally, reference words such as “this Act” can take on different meanings depending on the context in which they are used. “This Act” or “This Section” (or Other Subdivision) Bills commonly refer to another provision of “this Act,” “this section,” or another referenced subdivision. The context of these references helps inform their meaning. If the reference occurs in a freestanding provision (i.e., “outside the quotes”), it is likely referring to the bill itself.461 If the reference occurs in a provision amending an existing statute (i.e., “inside the quotes”), it is likely referring to the underlying statute rather than to the bill.462 For example, a bill entitled the “Justice for Victims of Fraud Act of 2017” contains proposed amendments to the Truth in Lending Act in section 3, proposed amendments to the Electronic Fund Transfer Act in section 4, and a freestanding rule of construction in section 5.463 The reference to “this section” in section 3 of the bill (Figure 28) refers to the new § 140B that the bill would add to the Truth in Lending Act. The reference to “this section” in section 4 of the bill (Figure 29) refers to the new section 920A that the bill would add to the Electronic Fund Transfer Act. In contrast, the reference to “this Act” in section 5 of the bill (Figure 30) refers to the bill as a whole because it appears outside the quoted material in a freestanding section of the bill. 458 Id. 459 Id. at 741 (quoting 35 U.S.C. § 271(f)(2)). 460 Id. at 742. 461 See FILSON & STROKOFF, supra note 37, at 333 (noting that references to “this Act” or a subdivision thereof are unnecessary if one section of the bill is referring to another section of the same bill, but may be used in the interest of clarity if there are nearby references to other acts or subdivisions). 462 HOLC Guide to Legislative Drafting, supra note 18 (noting that “references inside the quotes to ‘this Act’ are to the statute being amended, not the new bill,” and, similarly, “references inside the quotes to ‘section 5’ are to section 5 of the statute being amended”). 463 Justice for Victims of Fraud Act of 2017, H.R. 1414, 115th Cong. (as introduced, Mar. 7, 2017), https://www.congress.gov/115/bills/hr1414/BILLS-115hr1414ih.pdf. Congressional Research Service 72 Understanding Federal Legislation Figure 28. “This Section” Referring to Underlying Statute: Example 1 Source: Justice for Victims of Fraud Act of 2017, H.R. 1414, 115th Cong. § 3 (as introduced, Mar. 7, 2017), https://www.congress.gov/115/bil s/hr1414/BILLS-115hr1414ih.pdf#page=3. Figure 29. “This Section” Referring to Underlying Statute: Example 2 Source: Justice for Victims of Fraud Act of 2017, H.R. 1414, 115th Cong. § 4 (as introduced, Mar. 7, 2017), https://www.congress.gov/115/bil s/hr1414/BILLS-115hr1414ih.pdf#page=4. Congressional Research Service 73 link to page 80 link to page 80 Understanding Federal Legislation Figure 30. “This Act” Referring to Bill as a Whole Source: Justice for Victims of Fraud Act of 2017, H.R. 1414, 115th Cong. § 5 (as introduced, Mar. 7, 2017), https://www.congress.gov/115/bil s/hr1414/BILLS-115hr1414ih.pdf#page=6. Along with understanding whether a reference to an act or a particular subdivision refers to the bill itself or a statute that the bill is amending or cross-referencing, one may need to decide whether the reference encompasses the whole act or subdivision or just a portion of it. Here again, context is critical. Although freestanding and otherwise unmodified references to “this Act” generally refer to the bill as a whole, many omnibus bills, such as the appropriations act in Figure 31, specify at the outset that references to “this Act” in a particular division refer only to the provisions of that division. Congressional Research Service 74 Understanding Federal Legislation Figure 31. “This Act” Referring to Division of Bill Source: Continuing Appropriations Act, 2018 and Supplemental Appropriations for Disaster Relief Requirements Act, 2017, Pub. L. No. 115-56, 131 Stat. 1129 (2017) (H.R. 601, 115th Cong.), https://www.congress.gov/115/plaws/publ56/PLAW-115publ56.pdf. Lastly, the Supreme Court has held that the language “this section,” when used in a subsection of a statute, refers to the entire statutory section where it is located rather than to a specific provision within that section.464 And when the bill is amending a section of the U.S. Code, a reference to 464 See, e.g., NLRB v. SW Gen., Inc., 137 S. Ct. 929, 938–39 (2017) (“Congress often drafts statutes with hierarchical schemes—section, subsection, paragraph, and on down the line. Congress used that structure in the [Federal Vacancies Reform Act of 1998] and relied on it to make precise cross-references. When Congress wanted to refer only to a particular subsection or paragraph, it said so. See, e.g., § 3346(a)(2) (‘subsection (b)’); § 3346(b)(2) (‘paragraph (1)’). But in (b)(1) Congress referred to the entire section—§ 3345—which subsumes all of the ways a person may become an acting officer.” (some internal citations omitted)). Congressional Research Service 75 Understanding Federal Legislation “this section” that is “inside the quotes”465 generally refers to the U.S. Code section rather than the separately numbered section of the bill that made that amendment.466 ~~adapted for use in the invention.’”432~~
~~Other Commonly Used Terms and Phrases~~
~~This section discusses examples of other terms and phrases commonly used in federal legislation~~
~~and their meanings as interpreted by federal courts.~~
“Any Other”
Congressional drafters regularly use the phrase “any other” to modify a noun to provide a Congressional drafters regularly use the phrase “any other” to modify a noun to provide a ~~catchal~~
catchall for certain persons, laws, or conduct not for certain persons, laws, or conduct not ~~specifical y~~specifically enumerated. For example, a requirement for enumerated. For example, a requirement for
new labeling on “apples, bananas, and any other fruit,” likely applies to the full range of produce new labeling on “apples, bananas, and any other fruit,” likely applies to the full range of produce
~~ordinarily~~ ordinarily seen as fruit.seen as fruit.
The Supreme Court has held that the phrase “any other” conveys a broad meaning, The Supreme Court has held that the phrase “any other” conveys a broad meaning,~~433~~467 but at times, but at times,
the placement of the phrase has produced divided interpretations. In the placement of the phrase has produced divided interpretations. In Ali v. Federal Bureau of
Prisons (BOP), the Supreme Court considered the scope of the federal government’s waiver of , the Supreme Court considered the scope of the federal government’s waiver of
sovereign immunity—that is, its consent to be sued—based on certain acts committed by federal sovereign immunity—that is, its consent to be sued—based on certain acts committed by federal
employees.employees.~~434~~468 Under the relevant statute, the waiver did not apply to certain claims arising from Under the relevant statute, the waiver did not apply to certain claims arising from
property detention by “any officer of customs or excise or property detention by “any officer of customs or excise or any other law enforcement officer.” law enforcement officer.”~~435~~469
The dispute concerned whether that exception applied to property detention by BOP officers, who The dispute concerned whether that exception applied to property detention by BOP officers, who
are not customs or excise officers.are not customs or excise officers.~~436~~470 Citing prior decisions interpreting the phrase “any other,” Citing prior decisions interpreting the phrase “any other,”
the Court held that the phrase “any other law enforcement officer” encompassed BOP officers the Court held that the phrase “any other law enforcement officer” encompassed BOP officers
because “Congress’ use of ‘any’ to modify ‘other law enforcement officer’ is most because “Congress’ use of ‘any’ to modify ‘other law enforcement officer’ is most ~~natural y~~naturally read read
to mean law enforcement officers of whatever kind.”to mean law enforcement officers of whatever kind.”~~437~~471 The Court rejected the petitioner’s The Court rejected the petitioner’s

430 Id.
~~431 Id. at 741 (quoting 35 U.S.C. § 271(f)(2)).~~
~~432 Id. at 742.~~
~~433 See United States v. Gonzales, 520 U.S. 1, 4–5, 11 (1997) (holding that statute prohibiting sentencing court from~~
~~allowing a mandatory term of imprisonment for firearm use during and in relation to a drug trafficking crime to run~~
concurrently with “ any other ~~term of imprisonment” applies to~~ argument that “any other law enforcement officer” should be read more narrowly, to refer only to “officers of the same nature” as customs or excise officers based on the linguistic canon of ejusdem generis, which provides that “‘when a general term follows a specific one, the general term should be understood as a reference to subjects akin to the one with specific enumeration.’”472 The Court reasoned that the structure of the provision—specifically its reference to “any officers of customs or excise” and then “any other law enforcement officer”— 465 See supra note 44 and accompanying text. 466 Rubin v. Islamic Republic of Iran, 138 S. Ct. 816, 826 (2018) (“[P]etitioners assert that ‘this section’ [in 28 U.S.C. § 1610(g)] could possibly reflect a drafting error that was intended to actually refer to § 1083 of the [National Defense Authorization Act for Fiscal Year 2008 (NDAA)], the Public Law in which § 1610(g) was enacted. This interpretation would require not only a stark deviation from the plain text of § 1610(g), but also a departure from the clear text of the NDAA. Section 1083(b)(3) of the NDAA provides that ‘Section 1610 of title 28, United States Code, is amended . . . by adding at the end’ the new subsection ‘(g).’ 122 Stat. 341. The language ‘this section’ within (g), then, clearly and expressly incorporates the NDAA’s reference to ‘Section 1610’ as a whole. There is no basis to conclude that Congress’ failure to change ‘this section’ in § 1610(g) was the result of a mere drafting error.”). 467 See United States v. Gonzales, 520 U.S. 1, 4–5, 11 (1997) (holding that a statute prohibiting a sentencing court from imposing a term of imprisonment for certain offenses concurrently with “any other term of imprisonment” applied to all terms of imprisonment, whether state or federal, because ~~all terms of imprisonment, whether state or federal,~~
~~because~~ “the word ‘any’ has an expansive meaning” and “Congress “the word ‘any’ has an expansive meaning” and “Congress ~~did~~ did not add any languagenot add any language limiting [its] limiting [its] ~~breadt h”~~
breadth” (emphasis added));(emphasis added)); Harrison v. PPG Indus., 446 U.S.Harrison v. PPG Indus., 446 U.S. 578, 579, 587578, 579, 587 –89 (1980) (interpreting–89 (1980) (interpreting a statute providing for direct statute providing for direct
appellate review of certain locally and regionally applicable EPA Administrator actions under specifiedappellate review of certain locally and regionally applicable EPA Administrator actions under specified statutory statutory
provisions and of “provisions and of “ any other final action of the Administrator under [the] Act . . . which isof the Administrator under [the] Act . . . which is locally or regionally locally or regionally
applicable,” and holding that statute “must be construed to mean exactly what it says, namely, applicable,” and holding that statute “must be construed to mean exactly what it says, namely, any other final action,” final action,”
not just “those similar to the actions under the specifically enumerated provisions that precede that catchall phrase” not just “those similar to the actions under the specifically enumerated provisions that precede that catchall phrase”
(internal quotation marks and citations omitted)). (internal quotation marks and citations omitted)).
~~434~~468 552 U.S. 214, 215 (2008). 552 U.S. 214, 215 (2008).
~~435~~469 Id. at 216 (emphasis added)at 216 (emphasis added) (quoting 28 U.S.C.(quoting 28 U.S.C. § § 2680). 2680).
~~436~~470 Id. at 218. at 218.
~~437~~471 Id. at 219–20 (citing United States v. Gonzales, 520 U.S.at 219–20 (citing United States v. Gonzales, 520 U.S. 1 (1997) and Harrison v. PPG Indus., Inc1 (1997) and Harrison v. PPG Indus., Inc., 446 U.S., 446 U.S. 578 (1980)). 472 Id. at 223–24 (quoting Norfolk & W. R. Co. v. Train Dispatchers, 499 U.S. 117, 129 (1991)). Congressional Research Service 76 Understanding Federal Legislation ~~578~~
~~(1980)).~~
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~~argument that “any other law enforcement officer” should be read more narrowly, to refer only to~~
~~“officers of the same nature” as customs or excise officers based on the linguistic canon of~~
ejusdem generis, which provides that “‘when a general term follows a specific one, the general
~~term should be understood as a reference to subjects akin to the one with specific~~
~~enumeration.’”438 The Court reasoned that the structure of the provision—specifical y its~~
~~reference to “any officers of customs or excise” and then “any other law enforcement officer”—~~
“does not lend itself to application of the canon” because the provision is “disjunctive, with one “does not lend itself to application of the canon” because the provision is “disjunctive, with one
specific and one general category.”specific and one general category.”~~439~~473 Moreover, the Court reasoned, “no relevant common Moreover, the Court reasoned, “no relevant common
attribute” clearly connected customs officers with excise officers to limit the meaning of “any attribute” clearly connected customs officers with excise officers to limit the meaning of “any
other law enforcement officer.”other law enforcement officer.”~~440~~
474 Four Justices dissented in Four Justices dissented in Ali, arguing that a proper reading of the exception required applying the , arguing that a proper reading of the exception required applying the
ejusdem generis canon and reference to statutory context and legislative history.canon and reference to statutory context and legislative history.~~441~~475 In the dissent’s In the dissent’s
view, these interpretive aids supported a construction of “any other law enforcement officer” that view, these interpretive aids supported a construction of “any other law enforcement officer” that
was limited to those law enforcement officers who perform functions was limited to those law enforcement officers who perform functions ~~traditional y~~traditionally assigned to assigned to
revenue officers such as enforcing federal revenue laws and conducting border searches.revenue officers such as enforcing federal revenue laws and conducting border searches.~~442~~476
According to the dissent, had Congress intended to According to the dissent, had Congress intended to ~~al ow~~allow the government to invoke sovereign the government to invoke sovereign
immunity in cases involving property detention by any type of law enforcement officer, “in immunity in cases involving property detention by any type of law enforcement officer, “in al
all likelihoodlikelihood it would have drafted the section to apply to ‘any law enforcement officer, including it would have drafted the section to apply to ‘any law enforcement officer, including
officers of customs and excise,’ rather than tacking ‘any other law enforcement officer’ on the end officers of customs and excise,’ rather than tacking ‘any other law enforcement officer’ on the end
of the enumerated categories as it did here.”of the enumerated categories as it did here.”~~443~~
~~“This Act” or “This Section” (or Other Subdivision)~~
~~Bil s commonly refer to another provision of “this Act,” “this section,” or another referenced~~
~~subdivision. The context of these references helps inform their meaning. If the reference occurs in~~
~~a freestanding provision (i.e., “outside the quotes”), it is likely referring to the bil itself.444 If the~~
~~reference occurs in a provision amending an existing statute (i.e., “inside the quotes”), it is likely~~
~~referring to the underlying statute rather than to the bil .445 For example, a bil entitled the “Justice~~
~~for Victims of Fraud Act of 2017” contains proposed amendments to the Truth in Lending Act in~~
~~section 3, proposed amendments to the Electronic Fund Transfer Act in section 4, and a~~
~~freestanding rule of construction in section 5.446 The reference to “this section” in section 3 of the~~
~~bil (Figure 28) refers to the new § 140B that the bil would add to the Truth in Lending Act. The~~
~~reference to “this section” in section 4 of the bil (Figure 29) refers to the new section 920A that~~

~~438 Id. at 223–24 (quoting Norfolk & W. R. Co. v. T rain Dispatchers, 499 U.S. 117, 129 (1991)).~~
~~439 Id. at 225.~~
~~440~~477 “Such” and “So” Legislative drafters often use the word “such” as an adjective or pronoun to refer to a previously described person, item, or action and thus avoid repeating a potentially lengthy phrase.478 When used as an adjective, “such” takes on a “qualifying” purpose, limiting the noun it modifies to a category of persons or things previously described.479 While it can be easy to miss a single word in a compound provision, it is important to pause and consider the object of a term of reference and whether there is any ambiguity as to that object.480 Another potential term of reference is the word “so.” “So” is sometimes used as a conjunction, meaning “with the result that” or “in order that” (e.g., “The purpose of this bill is to provide a cause of action so that persons affected by a violation may sue in court.”).481 As a reference word, however, it may take the form of a pronoun to replace someone or something previously indicated or suggested (e.g., “If the government seeks to intervene in the action, it should do so as soon as practicable.”).482 Alternatively, congressional drafters may use “so” as an adverb to refer to the 473 Id. at 225. 474 Id. Cf. Cleveland v. United States, 329 U.S. 14, 16–19 (1946) (applying the canon of Cleveland v. United States, 329 U.S. 14, 16–19 (1946) (applying the canon of ejusdem generis and holding and holding
that polygamy constituted “any other immoral purpose” in a statute prohibiting the interstate transportation of “any that polygamy constituted “any other immoral purpose” in a statute prohibiting the interstate transportation of “any
woman or girlwoman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose,” reasoning that for the purpose of prostitution or debauchery, or for any other immoral purpose,” reasoning that
polygamous practices “are in the same genuspolygamous practices “are in the same genus as the other immoral practices covered by the Act”).as the other immoral practices covered by the Act”).
~~441~~ 475 Ali, 552 U.S., 552 U.S. at 228–43 (Kennedy, J., dissenting). at 228–43 (Kennedy, J., dissenting).
~~442~~476 Id. at 232. at 232.
~~443~~477 Id. 478 See, e.g., Sullivan v. Finkelstein, 496 U.S. 617, 627 (1990) (tracing the objects of the word “such” through multiple statutory provisions). 479 United States v. Bowen, 100 U.S. 508, 511–12 (1879) (interpreting the phrase “all such pensioners” in a statute to refer not to “all pensioners” but only to those pensioners previously described in the “immediately preceding sentence,” which referred to pensioners who had not contributed to a specific fund). 480 See, e.g., Littlefield v. Mashpee Wampanoag Indian Tribe, 951 F.3d 30, 37 (1st Cir. 2020) (considering whether the word “such” in a statute referred to “the entire antecedent phrase” or only a portion of it). 481 So, MERRIAM-WEBSTER.COM, https://www.merriam-webster.com/dictionary/so (last visited Sept. 15, 2021). 482 Id. Congressional Research Service 77 Understanding Federal Legislation “manner or way” previously indicated or suggested,483 as the Supreme Court observed in its 2021 decision in Van Buren v. United States.484 Van Buren involved the prosecution of a police sergeant for violating the Computer Fraud and Abuse Act of 1986 (CFAA).485 The defendant had used his police credentials to obtain a license plate number from a law enforcement database for an informant in exchange for money.486 A jury convicted the defendant of “exceed[ing] authorized access” and obtaining information from a protected computer in violation of the CFAA.487 Under the CFAA, “exceeds authorized access” means “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.”488 Before the Supreme Court, the defendant and the government advanced two different interpretations of the phrase “not entitled so to obtain.”489 Van Buren argued that “so” in this provision “serves as a term of reference that recalls ‘the same manner as has been stated’ or ‘the way or manner described.’”490 In his view, the provision did not reach information that a person was entitled to obtain by “access[ing] a computer with authorization.”491 Because the defendant accessed a law enforcement database with valid police credentials, he argued that he had not “exceed[ed] authorized access” under the CFAA.492 In contrast, the government read “so” to refer to information that the defendant was not entitled to obtain “in the particular manner or circumstances” in which the defendant obtained it.493 Because the defendant obtained the license plate information for an improper purpose, the government argued, the defendant violated the CFAA.494 The Supreme Court held that Van Buren’s interpretation of “so” was “more plausible” than the government’s interpretation.495 Writing for the majority, Justice Barrett observed that under the government’s reading, “so” would reach “any circumstance-based limit appearing anywhere—in the United States Code, a state statute, a private agreement, or anywhere else.”496 The Court reasoned that “so” is “not a free-floating term that provides a hook for any limitation stated anywhere” but instead “refers to a stated, identifiable proposition from the ‘preceding’ text.”497 Accordingly, the Court concluded, “the phrase ‘is not entitled so to obtain’ is best read to refer to information that a person is not entitled to obtain by using a computer that he is authorized to 483 Id. Cf. Little Sisters of the Poor Saints Peter & Paul Home v. Pennsylvania, 140 S. Ct. 2367, 2380 (2020) (observing that the word “as” in the statutory phrase “as provided for” “functions as an adverb modifying ‘provided,’ indicating ‘the manner in which’ something is done” (citations omitted)). 484 Van Buren v. United States, 141 S. Ct. 1648 (2021). 485 Id. at 1653. 486 Id. 487 United States v. Van Buren, 940 F.3d 1192, 1205 (11th Cir. 2019) (quoting 18 U.S.C. § 1030(a)(2)(C)), rev’d, 141 S. Ct. 1648. 488 18 U.S.C. § 1030(e)(6). 489 Van Buren, 141 S. Ct. at 1654. 490 Id. (quoting BLACK’S LAW DICTIONARY 1246; 15 OXFORD ENGLISH DICTIONARY 887 (2d ed. 1989)). 491 Id. 492 Id. 493 Id. at 1654–55 (emphasis removed). 494 Id. 495 Id. at 1655. 496 Id. 497 Id. (quoting 15 OXFORD ENGLISH DICTIONARY, at 887). Congressional Research Service 78 link to page 8 Understanding Federal Legislation access.”498 Because Van Buren was authorized to access the database in question to obtain license plate information, the Court held that he did not violate the CFAA.499 Van Buren suggests that when legislative drafters use words in their “term of reference” sense, those words most naturally refer to a particular person, object, or manner of acting previously described within the statutory text. “Notwithstanding” Clauses If a new law conflicts with an existing law without explicitly repealing it, courts generally will heed Congress’s instructions in the law’s text on how to resolve the conflicting provisions.500 An example of such an instruction is a “notwithstanding clause.”501 A bill may state that a provision applies “notwithstanding” a specific law or even “any other” law. As the Supreme Court has noted, the “ordinary meaning of ‘notwithstanding’ is ‘in spite of,’ or ‘without prevention or obstruction from or by.’”502 Accordingly, when used in a bill, a notwithstanding clause “shows which provision prevails in the event of a clash.”503 A notwithstanding phrase does not change the scope of the requirement or prohibition to which it attaches; in other words, it does not expand upon or limit the general rule that it introduces.504 In National Labor Relations Board (NLRB) v. SW General, Inc., the Supreme Court gave the following simplified example: Suppose a radio station announces: “We play your favorite hits from the ’60s, ’70s, and ’80s. Notwithstanding the fact that we play hits from the ’60s, we do not play music by British bands.” You would not tune in expecting to hear the 1970s British band “The Clash” any more than the 1960s “Beatles.” The station, after all, has announced that “we do not play music by British bands.” The “notwithstanding” clause just establishes that this applies even to music from the ’60s, when British bands were prominently featured on the charts. No one, however, would think the station singled out the ’60s to convey implicitly that its categorical statement “we do not play music by British bands” actually did not apply to the ’70s and ’80s.505 The NLRB case concerned the complicated interplay between several provisions of the Federal Vacancies Reform Act of 1998.506 The act identified three classes of officials who could serve as 498 Id. 499 Id. at 1662. 500 See supra “How a New Act Affects Existing Law.” 501 Courts sometimes describe notwithstanding clauses as “repealing” conflicting laws, but a notwithstanding clause technically does not formally repeal the laws that it references or with which it conflicts. E.g., Miccosukee Tribe of Indians of Fla. v. U.S. Army Corps of Eng’rs, 619 F.3d 1289, 1299 (11th Cir. 2010) (referring to the phrase “notwithstanding any other provision of law” as a “general repealing clause”); see generally Repeal, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “repeal” as “[a]brogation of an existing law by express legislative act”). 502 NLRB v. SW Gen., Inc., 137 S. Ct. 929, 939 (2017) (quoting WEBSTER’S THIRD NEW INT’L DICTIONARY 1545 (1986); BLACK’S LAW DICTIONARY 1091 (7th ed. 1999) (“Despite; in spite of”)). 503 Id. (internal quotation marks omitted) (quoting ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 126–27 (2012)). 504 See Kucana v. Holder, 558 U.S. 233, 238 n.1 (2010) (noting that the introductory language “notwithstanding any other provision of law (statutory or nonstatutory),” did not define the scope of the accompanying jurisdictional bar; it “simply informs that once the scope of the bar is determined, jurisdiction is precluded regardless of what any other provision or source of law might say”). 505 NLRB, 137 S. Ct. at 940. 506 Id. at 934–35. Congressional Research Service 79 Understanding Federal Legislation an acting officer following a vacancy.507 Subsection (a)(1) set up a default rule requiring a certain official to serve in the position unless the President selected an acting official from the categories in subsections (a)(2) or (a)(3).508 Subsection (b) stated that “[n]otwithstanding subsection (a)(1),” a person could not serve as an acting officer once he was nominated by the President to fill the position.509 The Supreme Court held that even though the notwithstanding clause only referenced subsection (a)(1), the prohibition in the second half of the sentence also applied to an acting officer serving under subsection (a)(3).510 The notwithstanding phrase, the Court explained, “[did] not limit the [prohibition’s] reach” to persons serving under subsection (a)(1).511 Instead, the phrase “clarifie[d] that the prohibition applies even when it conflicts with the default rule” set out in subsection (a)(1).512 Notwithstanding Specified Sections or Laws When a requirement or prohibition applies “notwithstanding” another specified provision or law, that requirement or prohibition normally operates like a special rule that overrides the otherwise-applicable, specified rule in the event of a conflict. For example, in 1979, the Court considered a challenge by the Yakima Nation to a Washington statute that extended the state’s jurisdiction over certain “Indians and Indian territory within the State.”513 The Yakima Nation argued that the “Enabling Act under which Washington . . . gained entry into the Union” required a state constitutional amendment, rather than a legislative statute, before the state could assert such jurisdiction.514 The Supreme Court disagreed, because a federal law provided that “Notwithstanding the provisions of any Enabling Act for the admission of a State, the consent of the United States is hereby given to the people of any State to amend, where necessary, their State constitution or existing statutes, as the case may be, to remove any legal impediment to the assumption of civil and criminal jurisdiction . . . .”515 In the Court’s view, even assuming the Enabling Act required a constitutional amendment, the notwithstanding phrase was “broad enough to suggest” that “Congress meant to remove any federal impediments to state jurisdiction that may have been created by an Enabling Act.”516 Notwithstanding “Any Other Provision of Law” When a statutory provision applies “notwithstanding any other provision of law,” it generally means that the rule set out in that provision “trumps any contrary provision elsewhere in the law.”517 However, use of such broad notwithstanding language raises at least three interpretative 507 Id. at 936. 508 See 5 U.S.C. § 3345(a) (2017). 509 See id. § 3345(b)(1). 510 See NLRB, 137 S. Ct. at 943–44 (“Solomon was appointed as acting general counsel under subsection (a)(3). Once the President submitted his nomination to fill that position in a permanent capacity, subsection (b)(1) prohibited him from continuing his acting service.”). 511 Id. at 938. 512 Id. 513 Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 465 (1979). 514 Id. at 479–83. 515 Id. at 481 (emphasis added) (quoting Act of Aug. 15, 1953, Pub. L. No. 280, ch. 505, § 6, 67 Stat. 588, 590). 516 Id. at 487–88. 517 Andreiu v. Ashcroft, 253 F.3d 477, 482 (9th Cir. 2001); see also Kucana v. Holder, 558 U.S. 233, 238 n.1 (2010) (noting that the introductory phrase “notwithstanding any other provision of law (statutory or nonstatutory)” does not define the scope of the jurisdictional bar that follows, but “simply informs that once the scope of the bar is determined, Congressional Research Service 80 Understanding Federal Legislation issues. First, does “provision of law” refer to federal statutes alone or does it also extend to federal regulations, state statutes, or common law (i.e., non-statutory, judge-made law)? Second, should the phrase be construed literally to displace all other laws or only those relating to the same subject matter, or of the same type, as the provision it modifies? And third, does the notwithstanding phrase foreclose the application of later-enacted laws? Resolution of these issues largely depends on the context in which the language is used,518 but a few general principles have emerged from the case law. First, whether the phrase “notwithstanding any other provision of law” is meant to displace a particular law may depend on the area of law at issue because different presumptions about when federal law supersedes state law or common law apply in different legal fields. For example, in Ordlock v. Commissioner, the Ninth Circuit considered whether a federal tax statute that allowed certain credits or refunds “notwithstanding any other law or rule of law,” displaced a state property law.519 The state law did not relate to taxes specifically, but was a law generally instituting a “community property” regime in which spouses were liable for each other’s debts.520 Quoting from a Supreme Court decision, the court first observed that “[b]ecause domestic relations are preeminently matters of state law . . . Congress, when it passes general legislation, rarely intends to displace statutory authority in this area.”521 It then applied the Supreme Court’s rule that “federal law supplants community property law only where” Congress’s intent to do so is “clear and unequivocal.”522 The Ninth Circuit concluded that the notwithstanding clause did not clearly preempt the state’s community property law based on the provision’s context within the statute and the history of similar tax statutes.523 To take another example, the Second Circuit examined the preemptive effect of a statute establishing a “comprehensive remedial scheme” for the government to recoup costs for cleaning up oil spills.524 The court held that the prescribed remedies, which applied “notwithstanding any other provisions of law,” displaced the remedies traditionally available under federal maritime law.525 The Court reasoned that in the context of the statute and the presumption that congressional acts supersede federal common law, the language meant that the statutory remedies were “not to be modified by any preexisting law,” including non-statutory maritime law.526 jurisdiction is precluded regardless of what any other provision or source of law might say”). 518 See, e.g., United States v. Vasquez-Alvarez, 176 F.3d 1294, 1297–98 (10th Cir. 1999) (reasoning that it was “implausible” to read the phrase “notwithstanding any other provision of law” in a particular statute to include state law where the clause immediately following it was “to the extent permitted by relevant State and local law”). In certain cases, courts have also examined the legislative history of a statute in interpreting the import of a notwithstanding provision. In Golden Nugget, Inc. v. American Stock Exchange, Inc., for example, the Ninth Circuit considered whether, in enacting a provision granting the SEC authority to regulate the options market “notwithstanding any other provision of law,” Congress meant to give the SEC exclusive authority to regulate options and preempt state regulation in this area. 828 F.2d 586, 588–89 (9th Cir. 1987). The court held that the legislative history of the provision—which showed that Congress inserted the notwithstanding provision in reaction to an appellate decision that another federal agency had exclusive jurisdiction over the options market—demonstrated that the provision was meant “to insure that the SEC could regulate options, not to exclude all other possible regulation.” Id. at 589. 519 533 F.3d 1136, 1143 (9th Cir. 2008). 520 Id. at 1138–39. 521 Id. at 1140 (internal quotation marks omitted) (quoting Mansell v. Mansell, 490 U.S. 581, 587 (1989)). 522 Id. 523 Id. at 1144–45. 524 In re Complaint of Oswego Barge Corp., 664 F.2d 327, 339–40 (2d Cir. 1981). 525 Id. at 340. 526 Id. at 337–38, 340. Congressional Research Service 81 Understanding Federal Legislation Second, the context of the language “notwithstanding any other provision of law” may suggest that the statutory language that follows controls only in cases involving laws of a certain type.527 In other words, the intent may not be “to disregard every law on the books.”528 For example, in Oregon Natural Resources Council v. Thomas, the Ninth Circuit concluded that in the context of the statute at issue, a provision directing an agency to expedite the award of certain timber sale contracts “notwithstanding any other law” was “best interpreted as requiring the disregard only of environmental laws, not all laws otherwise applicable to [such] sales.”529 Specifically, the court concluded that the notwithstanding phrase, standing alone, did not foreclose review of the agency’s action under the Administrative Procedure Act.530 In the court’s view, such an interpretation would render “nugatory” a separate provision providing for judicial review of timber sales that did not accord with “applicable law” other than specified environmental laws.531 Third, whether the phrase “notwithstanding any other provision of law” forecloses the application of later-enacted laws will likely depend on the language and context of the two laws at issue.532 A court could reasonably conclude that at the time Congress adopted the earlier notwithstanding clause, Congress “could not have intended to disregard a provision of law that had not yet been enacted.”533 However, the Supreme Court has held that “[t]he fact that Congress may not have foreseen all of the consequences of a statutory enactment is not a sufficient reason for refusing to give effect to its plain meaning.”534 Moreover, because courts presume that Congress is aware of existing laws—including existing notwithstanding clauses—when it enacts new ones, a court may conclude that Congress considered and elected to retain the earlier notwithstanding language.535 527 See, e.g., Marsh v. Rosenbloom, 499 F.3d 165, 177 (2d Cir. 2007) (holding that state statute barring suits against dissolved corporations after a particular time period precluded recovery even though a federal statute established liability “notwithstanding any other provision or rule of law,” because the phrase “refers only to substantive liability and does not express congressional intent to preempt state rules on how litigation proceeds, including a party’s amenability to suit”); Mapoy v. Carroll, 185 F.3d 224, 228–29 (4th Cir. 1999) (interpreting a statute stating that “notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from [certain] decision[s] or action[s] by the Attorney General” to mean that “all other jurisdiction-granting statutes . . . shall be of no effect” (emphasis added) (internal quotation marks and citation omitted)). 528 FILSON & STROKOFF, supra note 37, at 233 (stating, as an example, that “a provision that gives an official the authority to enter into contracts ‘notwithstanding any other provision of law’ is probably saying that other requirements regarding competitive bidding do not apply, not that the official can accept bribes to award contracts”); see also Or. Nat. Res. Council, 92 F.3d at 796–97 (noting that the Ninth Circuit has “repeatedly held that the phrase ‘notwithstanding any other law’ is not always construed literally”). 529 92 F.3d 792, 796 (9th Cir. 1996). 530 Id. at 798 (holding that APA review was unavailable on other grounds). 531 Id. at 797. But cf. Mission Critical Sols. v. United States, 91 Fed. Cl. 386, 397 (Fed. Cl. 2010) (distinguishing Oregon Natural Resources Council because “the Ninth Circuit was presented with a statute that contained, in one subsection, the phrase ‘notwithstanding any other law’ and that, in another subsection, clearly excluded the application of a certain class of laws—all federal environmental and natural resource laws—to timber sales while still providing for judicial review of agency decisions not in accordance with applicable law”). 532 See, e.g., CRS Legal Sidebar LSB10526, PRWORA and the CARES Act: What’s the Prospective Power of a “Notwithstanding” Clause?, by Ben Harrington. 533 Thomas v. LeBlanc, No. 18-496-JWD-RLB, 2019 U.S. Dist. LEXIS 188704, at *27 (M.D. La. Oct. 30, 2019) (deciding that between two provisions in the same state statute beginning “notwithstanding any other law to the contrary,” the later-enacted provision controlled). 534 Lockhart v. United States, 546 U.S. 142, 146 (2005) (internal quotation marks omitted) (quoting Union Bank v. Wolas, 502 U.S. 151, 158 (1991)) (reasoning that no statute of limitations barred the government from recovering petitioner’s debt through offsets to Social Security benefits; even though offsets of that type were not permitted until 1996, Congress had repealed the statute of limitations for administrative offsets five years earlier, in 1991, and it did not matter that the 1991 Congress may not have foreseen the effect of that law on Social Security benefits). 535 See Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990) (“We assume that Congress is aware of existing law when Congressional Research Service 82 Understanding Federal Legislation Given these presumptions, unless the later-enacted statute clearly manifests Congress’s intent to repeal the earlier notwithstanding clause by implication,536 a court may harmonize the two laws by ruling that the notwithstanding clause displaces the new law to the extent of any conflict.537 Drafting Errors Errors in drafting are inevitable, and the courts do not expect Congress to translate its objectives with absolute precision.538 When an error is obvious or technical539—such as a cross-reference to a subdivision that is clearly inapplicable or does not exist—a court may construe the statute with the correction in mind,540 or it may defer to the relevant agency’s interpretation of the provision at issue.541 For example, the Supreme Court has concluded that it is appropriate for courts to correct (through their interpretations) “a simple scrivener’s error, a mistake made by someone unfamiliar with the law’s object and design,” when Congress’s intended meaning is “clear beyond question.”542 In the main, however, a court presumes that Congress “says what it means and means what it says,”543 and will not “rewrite” a statute through its interpretation simply because the law is imprecise, duplicative of another law, or contains a loophole.544 Sometimes it is not manifestly clear that a provision contains a drafting error,545 and a court has to decide whether the most natural reading of the provision accords with Congress’s intent.546 Some it passes legislation.”). 536 See supra notes 26–33 and accompanying text. 537 See, e.g., Mowbray v. Kozlowski, 914 F.2d 593, 594, 599 (4th Cir. 1990) (concluding that the phrase “‘notwithstanding any other provision’ of the Medicaid statute” applied to subsequently enacted provisions of the Medicaid statute, including one that appeared to conflict with the clause, based on the statutory scheme and the Secretary of Health and Human Services’s “reasonable interpretation of the two provisions in issue which harmonizes them”). 538 See Torres v. Lynch, 136 S. Ct. 1619, 1633 (2016) (“Rather than expecting (let alone demanding) perfection in drafting, we have routinely construed statutes to have a particular meaning even as we acknowledged that Congress could have expressed itself more clearly.”). 539 See, e.g., King v. Burwell, 135 S. Ct. 2480, 2492 (2015) (noting that “the Act creates three separate Section 1563s”). 540 See Chickasaw Nation v. United States, 534 U.S. 84, 91 (2001) (“[I]n context, common sense suggests that the cross-reference is simply a drafting mistake, a failure to delete an inappropriate cross-reference in the bill that Congress later enacted into law.”); cf. Michigan v. Bay Mills Indian Cmty., 695 F.3d 406, 416 n.1 (6th Cir. 2012) (construing an ordinance’s reference to “the power to sue and be sued provided in [s]ubsection 4.18(Z)” to be an “intended cross reference . . . to subsection 4.18(Y)” because “[s]ubsection 4.18(Z) does not provide the power to sue and be sued”). 541 Cf. Valero Energy Corp. v. EPA, 927 F.3d 532, 534–36 (D.C. Cir. 2019) (declining to review the EPA’s interpretation of a statute that required the agency to review the impact periodically of requirements “described in subsection (a)(2)” on certain entities when the statute contained no subsection (a)(2), holding that the EPA’s guidance did not constitute a final agency action). 542 U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., 508 U.S. 439, 462 (1993) (“Against the overwhelming evidence from the structure, language, and subject matter of the 1916 Act there stands only the evidence from the Act’s punctuation, too weak to trump the rest. . . . The true meaning of the 1916 Act is clear beyond question, and so we repunctuate.”). 543 Simmons v. Himmelreich, 136 S. Ct. 1843, 1848 (2016). 544 See Bottinelli v. Salazar, 929 F.3d 1196, 1201 (9th Cir. 2019) (“Generally, we hesitate to presume a statutory drafting error . . . .”); Shook v. D.C. Fin. Responsibility & Mgmt. Assistance Auth., 132 F.3d 775, 782 (D.C. Cir. 1998) (“Sometimes Congress drafts statutory provisions that appear preclusive of other unmentioned possibilities just as it sometimes drafts provisions that appear duplicative of others simply, in Macbeth’s words, ‘to make assurance double sure.’”). 545 See, e.g., CRS Legal Sidebar LSB10304, Waiver of Congressional Notification Period in the Arms Export Control Act, by Jennifer K. Elsea. 546 See, e.g., Rubin v. Islamic Republic of Iran, 138 S. Ct. 816, 826 (2018) (finding “no basis to conclude that Congressional Research Service 83 link to page 40 link to page 48 link to page 10 link to page 10 link to page 77 Understanding Federal Legislation judges adhere closely to the text of the statute if it reads clearly to them, even if extra-textual evidence suggests that Congress may have intended a different result.547 Others have demonstrated a willingness to expand the lens to take in evidence of congressional intent from the legislative history of the act or the regulatory scheme as a whole.548 Takeaways and Suggestions for Reading a Bill Understanding how a draft or pending bill would change the law if enacted requires familiarity with both its subject matter and the legal principles that are likely to govern each type of provision, which are the focus of this report. While there is no substitute for a thorough analysis of the bill’s unique text, context, purpose, and history, this section summarizes key takeaways from the report and suggestions for reading a bill to help Members and congressional staff flag potential interpretive issues to discuss ~~Id.~~
~~444 See FILSON & STROKOFF, supra note 37, at 333 (noting that references to “this Act” or a subdivision thereof are~~
~~unnecessary if one section of the bill is referring to another section of the same bill, but may be used in the interest of~~
~~clarity if there are nearby references to other acts or subdivisions).~~
~~445 HOLC Guide to Legislative Drafting, supra note 18 (noting that “references inside the quotes to ‘this Act’ are to the~~
~~statute being amended, not the new bill,” and, similarly, “references inside the quotes to ‘section 5’ are to section 5 of~~
~~the statute being amended”).~~
~~446 Justice for Victims of Fraud Act of 2017, H.R. 1414, 115th Cong. (as introduced, Mar. 7, 2017),~~
~~https://www.congress.gov/115/bills/hr1414/BILLS-115hr1414ih.pdf.~~
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~~link to page 78~~

~~Understanding Federal Legislation~~

~~the bil would add to the Electronic Fund Transfer Act. In contrast, the reference to “this Act” in~~
~~section 5 of the bil (Figure 30) refers to the bil as a whole because it appears outside the quoted~~
~~material in a freestanding section of the bil .~~
~~Figure 28. “This Section” Referring to Underlying Statute: Example 1~~

Source: Justice for Victims of Fraud Act of 2017, H.R. 1414, 115th Cong. § 3 (as introduced, Mar. 7, 2017),
~~https://www.congress.gov/115/bil s/hr1414/BILLS-115hr1414ih.pdf#page=3.~~
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~~Figure 29. “This Section” Referring to Underlying Statute: Example 2~~

Source: Justice for Victims of Fraud Act of 2017, H.R. 1414, 115th Cong. § 4 (as introduced, Mar. 7, 2017),
~~https://www.congress.gov/115/bil s/hr1414/BILLS-115hr1414ih.pdf#page=4.~~
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~~link to page 79 link to page 79~~

~~Understanding Federal Legislation~~

~~Figure 30. “This Act” Referring to Bill as a Whole~~

Source: Justice for Victims of Fraud Act of 2017, H.R. 1414, 115th Cong. § 5 (as introduced, Mar. 7, 2017),
~~https://www.congress.gov/115/bil s/hr1414/BILLS-115hr1414ih.pdf#page=6.~~
~~Along with understanding whether a reference to an act or a particular subdivision refers to the~~
~~bil itself or a statute that the bil is amending or cross-referencing, one may need to decide~~
~~whether the reference encompasses the whole act or subdivision or just a portion of it. Here again,~~
~~context is critical. Although freestanding and otherwise unmodified references to “this Act”~~
~~general y refer to the bil as a whole, many omnibus bil s, such as the appropriations act i~~n ~~Figure~~
31, ~~specify at the outset that references to “this Act” in a particular division refer only to the~~
~~provisions of that division.~~
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~~Figure 31. “This Act” Referring to Division of Bill~~

Source: Continuing Appropriations Act, 2018 and Supplemental Appropriations for Disaster Relief
~~Requirements Act, 2017, Pub. L. No. 115-56, 131 Stat. 1129 (2017) (H.R. 601, 115th Cong.),~~
~~https://www.congress.gov/115/plaws/publ56/PLAW-115publ56.pdf.~~
~~Lastly, the Supreme Court has held that the language “this section,” when used in a subsection of~~
~~a statute, refers to the entire statutory section where it is located rather than to a specific provision~~
~~within that section.447 And when the bil is amending a section of the U.S. Code, a reference to~~

~~447 See, e.g., NLRB v. SW Gen., Inc., 137 S. Ct. 929, 938–39 (2017) (“Congress often drafts statutes with hierarchical~~
~~schemes—section, subsection, paragraph, and on down the line. Congress used that structure in the [Federal Vacancies~~
~~Reform Act of 1998] and relied on it to make precise cross-references. When Congress wanted to refer only to a~~
~~particular subsection or paragraph, it said so. See, e.g., § 3346(a)(2) (‘subsection (b)’); § 3346(b)(2) (‘paragraph (1)’).~~
~~But in (b)(1) Congress referred to the entire section —§ 3345—which subsumes all of the ways a person may become~~
~~an acting officer.” (some internal citations omitted)).~~
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~~“this section” that is “inside the quotes”448 general y refers to the U.S. Code section rather than~~
~~the separately numbered section of the bil that made that amendment.449~~
~~“Notw ithstanding” Clauses~~
~~If a new law conflicts with an existing law without explicitly repealing it, courts general y wil~~
~~heed Congress’s instructions in the law’s text on how to resolve the conflicting provisions.450 An~~
~~example of such an instruction is a “notwithstanding clause.”451 A bil may state that a provision~~
~~applies “notwithstanding” a specific law or even “any other” law. As the Supreme Court has~~
~~noted, the “ordinary meaning of ‘notwithstanding’ is ‘in spite of,’ or ‘without prevention or~~
~~obstruction from or by.’”452 Accordingly, when used in a bil , a notwithstanding clause “shows~~
~~which provision prevails in the event of a clash.”453~~
~~A notwithstanding phrase does not change the scope of the requirement or prohibition to which it~~
~~attaches; in other words, it does not expand upon or limit the general rule that it introduces.454 In~~
National Labor Relations Board (NLRB) v. SW General, Inc., the Supreme Court gave the
~~following simplified example:~~
~~Suppose a radio station announces: “We play your favorite hits from the ’60s, ’70s, and~~
~~’80s. Notwithstanding the fact that we play hits from the ’60s, we do not play music by~~
~~British bands.” You would not tune in expecting to hear the 1970s British band “The Clash”~~
~~any more than the 1960s “Beatles.” The station, after all, has announced that “we do not~~
~~play music by British bands.” The “notwithstanding” clause just establishes that this~~
~~applies even to music from the ’60s, when British bands were prominently featured on the~~
~~charts. No one, however, would think the station singled out the ’60s to convey implicitly~~
~~that its categorical statement “we do not play music by British bands” actually did not apply~~
~~to the ’70s and ’80s.455~~

~~448 See supra note 44 and accompanying text.~~
~~449 Rubin v. Islamic Republic of Iran, 138 S. Ct. 816, 826 (2018) (“[P]etitioners assert that ‘this section’ [in 28 U.S.C.~~
~~§ 1610(g)] could possibly reflect a drafting error t hat was intended to actually refer to § 1083 of the [National Defense~~
~~Authorization Act for Fiscal Year 2008 (NDAA)], the Public Law in which § 1610(g) was enacted. T his interpretation~~
~~would require not only a stark deviation from the plain text of § 1610(g), but also a departure from the clear text of the~~
~~NDAA. Section 1083(b)(3) of the NDAA provides that ‘Section 1610 of title 28, United States Code, is amended . . .~~
~~by adding at the end’ the new subsection ‘(g).’ 122 Stat. 341. T he language ‘this section’ within (g), then, clearly and~~
~~expressly incorporates the NDAA’s reference to ‘Section 1610’ as a whole. T here is no basis to conclude that~~
~~Congress’ failure to change ‘this section’ in § 1610(g) was the result of a mere drafting error.”).~~
~~450 See supra “How a New Act Affects Existing Law.”~~
~~451 Courts sometimes describe notwithstanding clauses as “repealing” conflicting laws, but a notwithstanding clause~~
~~technically does not formally repeal the laws that it references or with which it conflicts. E.g., Miccosukee T ribe of~~
~~Indians of Fla. v. U.S. Army Corps of Eng’rs, 619 F.3d 1289, 1299 (11th Cir. 2010) (referring to the phrase~~
~~“notwithstanding any other provision of law” as a “general repealing clause”); see generally Repeal, BLACK’S LAW~~
~~DICTIONARY (11th ed. 2019) (defining “ repeal” as “ [a]brogation of an existing law by express legislative act”).~~
~~452 NLRB v. SW Gen., Inc., 137 S. Ct. 929, 939 (2017) (quoting WEBSTER’S THIRD NEW INT’L DICTIONARY 1545~~
~~(1986); BLACK’S LAW DICTIONARY 1091 (7th ed. 1999) (“ Despite; in spite of”)).~~
~~453 Id. (internal quotation marks omitted) (quoting ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE~~
~~INTERPRETATION OF LEGAL TEXTS 126–27 (2012)).~~
~~454 See Kucana v. Holder, 558 U.S. 233, 238 n.1 (2010) (noting that the introductory language “notwithstanding any~~
~~other provision of law (statutory or nonstatutory),” did not define the scope of the accompanying jurisdictional bar; it~~
~~“simply informs that once the scope of the bar is determined, jurisdiction is precluded regardless of what any other~~
~~provision or source of law might say”).~~
~~455 NLRB, 137 S. Ct. at 940.~~
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~~The NLRB case concerned the complicated interplay between several provisions of the Federal~~
~~Vacancies Reform Act of 1998.456 The act identified three classes of officials who could serve as~~
~~an acting officer following a vacancy.457 Subsection (a)(1) set up a default rule requiring a certain~~
~~official to serve in the position unless the President selected an acting official from the categories~~
~~in subsections (a)(2) or (a)(3).458 Subsection (b) stated that “[n]otwithstanding subsection (a)(1),”~~
~~a person could not serve as an acting officer once he was nominated by the President to fil the~~
~~position.459 The Supreme Court held that even though the notwithstanding clause only referenced~~
~~subsection (a)(1), the prohibition in the second half of the sentence also applied to an acting~~
~~officer serving under subsection (a)(3).460 The notwithstanding phrase, the Court explained, “[did]~~
~~not limit the [prohibition’s] reach” to persons serving under subsection (a)(1).461 Instead, the~~
~~phrase “clarifie[d] that the prohibition applies even when it conflicts with the default rule” set out~~
~~in subsection (a)(1).462~~
~~Notwithstanding Specified Sections or Laws~~
~~When a requirement or prohibition applies “notwithstanding” another specified provision or law,~~
~~that requirement or prohibition normal y operates like a special rule that overrides the otherwise-~~
~~applicable, specified rule in the event of a conflict. For example, in 1979, the Court considered a~~
~~chal enge by the Yakima Nation to a Washington statute that extended the state’s jurisdiction over~~
~~certain “Indians and Indian territory within the State.”463 The Yakima Nation argued that the~~
~~“Enabling Act under which Washington . . . gained entry into the Union” required a state~~
~~constitutional amendment, rather than a legislative statute, before the state could assert such~~
~~jurisdiction.464 The Supreme Court disagreed, because a federal law provided that~~
~~“Notwithstanding the provisions of any Enabling Act for the admission of a State, the consent of~~
the United States is hereby given to the people of any State to amend, where necessary, their State
constitution or existing statutes, as the case may be, to remove any legal impediment to the
~~assumption of civil and criminal jurisdiction . . . .”465 In the Court’s view, even assuming the~~
~~Enabling Act required a constitutional amendment, the notwithstanding phrase was “broad~~
~~enough to suggest” that “Congress meant to remove any federal impediments to state jurisdiction~~
~~that may have been created by an Enabling Act.”466~~
~~Notwithstanding “Any Other Provision of Law”~~
~~When a statutory provision applies “notwithstanding any other provision of law,” it general y~~
~~means that the rule set out in that provision “trumps any contrary provision elsewhere in the~~

~~456 Id. at 934–35.~~
~~457 Id. at 936.~~
~~458 See 5 U.S.C. § 3345(a) (2017).~~
~~459 See id. § 3345(b)(1).~~
~~460 See NLRB, 137 S. Ct. at 943–44 (“Solomon was appointed as acting general counsel under subsection (a)(3). Once~~
~~the President submitted his nomination to fill that position in a permanent capacity, subsection (b)(1) prohibited him~~
~~from continuing his acting service.”).~~
~~461 Id. at 938.~~
462 Id.
~~463 Washington v. Confederated Bands & T ribes of Yakima Indian Nation, 439 U.S. 463, 465 (1979) .~~
~~464 Id. at 479–83.~~
~~465 Id. at 481 (emphasis added) (quoting Act of Aug. 15, 1953, Pub. L. No. 280, ch. 505, § 6, 67 Stat. 588, 590).~~
~~466 Id. at 487–88.~~
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~~law.”467 However, use of such broad notwithstanding language raises at least three interpretative~~
~~issues. First, does “provision of law” refer to federal statutes alone or does it also extend to~~
~~federal regulations, state statutes, or common law (i.e., non-statutory, judge-made law)? Second,~~
~~should the phrase be construed literal y to displace al other laws or only those relating to the~~
~~same subject matter, or of the same type, as the provision it modifies? And third, does the~~
~~notwithstanding phrase foreclose the application of later-enacted laws? Resolution of these issues~~
~~largely depends on the context in which the language is used,468 but a few general principles have~~
~~emerged from the case law.~~
~~First, whether the phrase “notwithstanding any other provision of law” is meant to displace a~~
~~particular law may depend on the area of law at issue because different presumptions about when~~
~~federal law supersedes state law or common law apply in different legal fields. For example, in~~
Ordlock v. Commissioner, the Ninth Circuit considered whether a federal tax statute that al owed
~~certain credits or refunds “notwithstanding any other law or rule of law,” displaced a state~~
~~property law.469 The state law did not relate to taxes specifical y, but was a law general y~~
~~instituting a “community property” regime in which spouses were liable for each other’s debts.470~~
~~Quoting from a Supreme Court decision, the court first observed that “[b]ecause domestic~~
~~relations are preeminently matters of state law . . . Congress, when it passes general legislation,~~
~~rarely intends to displace statutory authority in this area.”471 It then applied the Supreme Court’s~~
~~rule that “federal law supplants community property law only where” Congress’s intent to do so~~
~~is “clear and unequivocal.”472 The Ninth Circuit concluded that the notwithstanding clause did not~~
~~clearly preempt the state’s community property law based on the provision’s context within the~~
~~statute and the history of similar tax statutes.473~~
~~To take another example, the Second Circuit examined the preemptive effect of a statute~~
~~establishing a “comprehensive remedial scheme” for the government to recoup costs for cleaning~~
~~up oil spil s.474 The court held that the prescribed remedies, which applied “notwithstanding any~~
~~other provisions of law,” displaced the remedies traditional y available under federal maritime~~
~~law.475 The Court reasoned that in the context of the statute and the presumption that~~

~~467 Andreiu v. Ashcroft, 253 F.3d 477, 482 (9th Cir. 2001); see also Kucana v. Holder, 558 U.S. 233, 238 n.1 (2010)~~
~~(noting that the introductory phrase “notwithstanding any other provision of law (statutory or nonstatutory)” does not~~
~~define the scope of the jurisdictional bar that follows, but “ simply informs that once the scope of the bar is determined,~~
~~jurisdiction is precluded regardless of what any other provision or source of law might say”).~~
~~468 See, e.g., United States v. Vasquez-Alvarez, 176 F.3d 1294, 1297–98 (10th Cir. 1999) (reasoning that it was~~
~~“implausible” to read the phrase “notwithstanding any other provision of law” in a particular statute to include state law~~
~~where the clause immediately following it was “to the extent permitted by relevant State and local law”). In certain~~
~~cases, courts have also examined the legislative history of a statute in interpreting the import of a notwithstanding~~
~~provision. In Golden Nugget, Inc. v. Am erican Stock Exchange, Inc., for example, the Ninth Circuit considered~~
~~whether, in enacting a provision granting the SEC authority to regulate the options market “notwithstanding any other~~
~~provision of law,” Congress meant to give the SEC exclusive authority to regulate options and preempt state regulation~~
~~in this area. 828 F.2d 586, 588–89 (9th Cir. 1987). T he court held that the legislative history of the provision —which~~
~~showed that Congress inserted the notwithstanding provision in reaction to an appellate decision that another federal~~
~~agency had exclusive jurisdiction over the options market —demonstrated that the provision was meant “ to insure that~~
~~the SEC could regulate options, not to exclude all other possible regulation.” Id. at 589.~~
~~469 533 F.3d 1136, 1143 (9th Cir. 2008).~~
~~470 Id. at 1138–39.~~
~~471 Id. at 1140 (internal quotation marks omitted) (quoting Mansell v. Mansell, 490 U.S. 581, 587 (1989)).~~
472 Id.
~~473 Id. at 1144–45.~~
~~474 In re Complaint of Oswego Barge Corp., 664 F.2d 327, 339–40 (2d Cir. 1981).~~
~~475 Id. at 340.~~
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~~congressional acts supersede federal common law, the language meant that the statutory remedies~~
~~were “not to be modified by any preexisting law,” including non-statutory maritime law.476~~
~~Second, the context of the language “notwithstanding any other provision of law” may suggest~~
~~that the statutory language that follows controls only in cases involving laws of a certain type.477~~
~~In other words, the intent may not be “to disregard every law on the books.”478 For example, in~~
Oregon Natural Resources Council v. Thomas, the Ninth Circuit concluded that in the context of
~~the statute at issue, a provision directing an agency to expedite the award of certain timber sale~~
~~contracts “notwithstanding any other law” was “best interpreted as requiring the disregard only of~~
~~environmental laws, not al laws otherwise applicable to [such] sales.”479 Specifical y, the court~~
~~concluded that the notwithstanding phrase, standing alone, did not foreclose review of the~~
~~agency’s action under the Administrative Procedure Act.480 In the court’s view, such an~~
~~interpretation would render “nugatory” a separate provision providing for judicial review of~~
~~timber sales that did not accord with “applicable law” other than specified environmental laws.481~~
~~Third, whether the phrase “notwithstanding any other provision of law” forecloses the application~~
~~of later-enacted laws wil likely depend on the language and context of the two laws at issue.482 A~~
~~court could reasonably conclude that at the time Congress adopted the earlier notwithstanding~~
~~clause, Congress “could not have intended to disregard a provision of law that had not yet been~~
~~enacted.”483 However, the Supreme Court has held that “[t]he fact that Congress may not have~~
~~foreseen al of the consequences of a statutory enactment is not a sufficient reason for refusing to~~
~~give effect to its plain meaning.”484 Moreover, because courts presume that Congress is aware of~~

~~476 Id. at 337–38, 340.~~
~~477 See, e.g., Marsh v. Rosenbloom, 499 F.3d 165, 177 (2d Cir. 2007) (holding that state statute barring suits against~~
~~dissolved corporations after a particular time period precluded recovery even though a federal statute established~~
~~liability “notwithstanding any other provision or rule of law,” because the phrase “ refers only to substantive liability~~
~~and does not express congressional intent to preempt state rules on how litigat ion proceeds, including a party’s~~
~~amenability to suit ”); Mapoy v. Carroll, 185 F.3d 224, 228–29 (4th Cir. 1999) (interpreting a statute stating that~~
~~“notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf~~
~~of any alien arising from [certain] decision[s] or action[s] by the Attorney General” to mean that “ all other~~ ~~jurisdiction-~~
~~granting statutes~~ ~~. . . shall be of no effect” (emphasis added) (internal quotation marks and citation omitted)).~~
~~478 FILSON & STROKOFF, supra note 37, at 233 (stating, as an example, that “a provision that gives an official the~~
~~authority to enter into contracts ‘notwithstanding any other provision of law’ is probably saying that other requirements~~
~~regarding competitive bidding do not apply, not that the official can accept bribes to award contracts”);~~ ~~see also Or.~~
~~Nat. Res. Council, 92 F.3d at 796–97 (noting that the Ninth Circuit has “ repeatedly held that the phrase~~
~~‘notwithstanding any other law’ is not always construed literally”).~~
~~479 92 F.3d 792, 796 (9th Cir. 1996).~~
~~480 Id. at 798 (holding that APA review was unavailable on other grounds).~~
~~481 Id. at 797. But cf. Mission Critical Sols. v. United States, 91 Fed. Cl. 386, 397 (Fed. Cl. 2010) (distinguishing~~
Oregon Natural Resources Council because “ the Ninth Circuit was presented with a statute that contained, in one
~~subsection, the phrase ‘notwithstanding any other law’ and that, in another subsection, clearly excluded the applicat ion~~
~~of a certain class of laws—all federal environmental and natural resource laws—to timber sales while still providing for~~
~~judicial review of agency decisions not in accordance with applicable law”).~~
~~482 See, e.g., CRS Legal Sidebar LSB10526,~~ ~~PRWORA and the CARES Act: What’s the Prospective Power of a~~
~~“Notwithstanding” Clause?, by Ben Harrington.~~
~~483 T homas v. LeBlanc, No. 18-496-JWD-RLB, 2019 U.S. Dist. LEXIS 188704, at *27 (M.D. La. Oct. 30, 2019)~~
~~(deciding that between two provisions in the same state statute beginning “ notwithstanding any other law to the~~
~~contrary,” the later-enacted provision controlled).~~
~~484 Lockhart v. United States, 546 U.S. 142, 146 (2005) (internal quotation marks omitted) (quoting Union Bank v.~~
~~Wolas, 502 U.S. 151, 158 (1991)) (reasoning that no statute of limitations barred the government from recovering~~
~~petitioner’s debt through offsets to Social Security benefits; even though offsets of that type were not permitted until~~
~~1996, Congress had repealed the statute of limitations for administrative offsets five years earlier, in 1991, and it did~~
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~~existing laws—including existing notwithstanding clauses—when it enacts new ones, a court may~~
~~conclude that Congress considered and elected to retain the earlier notwithstanding language.485~~
~~Given these presumptions, unless the later-enacted statute clearly manifests Congress’s intent to~~
~~repeal the earlier notwithstanding clause by implication,486 a court may harmonize the two laws~~
~~by ruling that the notwithstanding clause displaces the new law to the extent of any conflict.487~~
~~Drafting Errors~~
~~Errors in drafting are inevitable, and the courts do not expect Congress to translate its objectives~~
~~with absolute precision.488 When an error is obvious or technical489—such as a cross-reference to~~
~~a subdivision that is clearly inapplicable or does not exist—a court may construe the statute with~~
~~the correction in mind,490 or it may defer to the relevant agency’s interpretation of the provision at~~
~~issue.491 For example, the Supreme Court has concluded that it is appropriate for courts to correct~~
~~(through their interpretations) “a simple scrivener’s error, a mistake made by someone unfamiliar~~
~~with the law’s object and design,” when Congress’s intended meaning is “clear beyond~~
~~question.”492 In the main, however, a court presumes that Congress “says what it means and~~
~~means what it says,”493 and wil not “rewrite” a statute through its interpretation simply because~~
~~the law is imprecise, duplicative of another law, or contains a loophole.494~~

~~not matter that the 1991 Congress may not have foreseen the effect of that law on Social Security benefits).~~
~~485 See Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990) (“We assume that Congress is awar e of existing law when~~
~~it passes legislation.”).~~
~~486 See supra notes 26–33 and accompanying text.~~
~~487 See, e.g., Mowbray v. Kozlowski, 914 F.2d 593, 594, 599 (4th Cir. 1990) (concluding that the phrase~~
~~“‘notwithstanding any other provision’ of the Medicaid statute” applied to subsequently enacted provisions of the~~
~~Medicaid statute, including one that appeared to conflict with the clause, based on the statutory scheme and the~~
~~Secretary of Health and Human Services’s “reasonable interpretation of the two provisions in issue which harmonizes~~
~~them”).~~
~~488 See T orres v. Lynch, 136 S. Ct. 1619, 1633 (2016) (“Rather than expecting (let alone demanding) perfection in~~
~~drafting, we have routinely construed statutes to have a particular meaning even as we acknowledged that Congress~~
~~could have expressed itself more clearly.”).~~
~~489 See, e.g., King v. Burwell, 135 S. Ct. 2480, 2492 (2015) (noting that “the Act creates three separate Section 1563s”).~~
~~490 See Chickasaw Nation v. United States, 534 U.S. 84, 91 (2001) (“[I]n context, common sense suggests that the~~
~~cross-reference is simply a drafting mistake, a failure to delete an inappropriate cross-reference in the bill that Congress~~
~~later enacted into law.”); cf. Michigan v. Bay Mills Indian Cmty., 695 F.3d 406, 416 n.1 (6th Cir. 2012) (construing an~~
~~ordinance’s reference to “ the power to sue and be sued provided in [s]ubsection 4.18(Z)” to be an “intended cross~~
~~reference . . . to subsection 4.18(Y)” because “ [s]ubsection 4.18(Z) does not provide the power to sue and be sue d”).~~
~~491 Cf. Valero Energy Corp. v. EPA, 927 F.3d 532, 534–36 (D.C. Cir. 2019) (declining to review the EPA’s~~
~~interpretation of a statute that required the agency to review the impact periodically of requirements “ described in~~
~~subsection (a)(2)” on certain entities when the statute contained no subsection (a)(2), holding that the EPA’s guidance~~
~~did not constitute a final agency action).~~
~~492 U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., 508 U.S. 439, 462 (1993) (“Against the overwhelming~~
~~evidence from t he structure, language, and subject matter of the 1916 Act there stands only the evidence from the Act’s~~
~~punctuation, too weak to trump the rest. . . . T he true meaning of the 1916 Act is clear beyond question, and so we~~
~~repunctuate.”).~~
~~493 Simmons v. Himmelreich, 136 S. Ct. 1843, 1848 (2016).~~
~~494 See Bottinelli v. Salazar, 929 F.3d 1196, 1201 (9th Cir. 2019) (“Generally, we hesitate to presume a statutory~~
~~drafting error . . . .”); Shook v. D.C. Fin. Responsibility & Mgmt. Assistance Auth., 132 F.3d 775, 782 ( D.C. Cir. 1998)~~
~~(“Sometimes Congress drafts statutory provisions that appear preclusive of other unmentioned possibilities just as it~~
~~sometimes drafts provisions that appear duplicative of others simply, in Macbeth’s words, ‘to make assurance double~~
~~sure.’”).~~
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~~Sometimes it is not manifestly clear that a provision contains a drafting error,495 and a court has to~~
~~decide whether the most natural reading of the provision accords with Congress’s intent.496 Some~~
~~judges adhere closely to the text of the statute if it reads clearly to them, even if extra-textual~~
~~evidence suggests that Congress may have intended a different result.497 Others have~~
~~demonstrated a wil ingness to expand the lens to take in evidence of congressional intent from the~~
~~legislative history of the act or the regulatory scheme as a whole.498~~
~~Takeaways and Suggestions for Reading a Bill~~
~~Understanding how a draft or pending bil would change the law if enacted requires a familiarity~~
~~with both its subject matter and the legal principles that are likely to govern each type of~~
~~provision, which are the focus of this report. While there is no substitute for a thorough analysis~~
~~of the bil ’s unique text, context, purpose, and history, this section summarizes key takeaways~~
~~from the report and suggestions for reading a bil to help Members and congressional staff flag~~
~~potential interpretive issues for discussion with legislative attorneys in their offices and within~~
~~CRS.~~
with legislative attorneys in their offices and within CRS. 1. 1.
Scan the whole Scan the whole ~~bil before diving into~~bill before reviewing any given section. Key definitions or any given section. Key definitions or
limitations on the limitations on the ~~bil~~ bill’s scope may be ’s scope may be ~~set out~~placed at the end of the at the end of the ~~bil~~ bill or within a or within a
particular division.particular division.~~499~~549 If the If the ~~bil~~ bill is amending an existing law, consult the statute to is amending an existing law, consult the statute to
be amended to be amended to ~~get the full picture of~~understand fully the changes the the changes the ~~bil~~ bill would make. The would make. The
statute’s table of contents in the statute’s table of contents in the U.S. Code may may ~~help to orient you~~serve as a guide to the to the
amendment’s place in the amendment’s place in the ~~overal~~ overall statutory scheme and statutory scheme and ~~to identify any~~indicate general general
rules or definitions that might apply to the rules or definitions that might apply to the ~~bil .500~~bill.550
2. 2.
Pay attention to whether language in a Pay attention to whether language in a ~~bil~~ bill is “inside the quotes”—signifying is “inside the quotes”—signifying
language that would be added to, or removed from, an existing law—or “outside language that would be added to, or removed from, an existing law—or “outside
the quotes”—indicating a stand-alone provision.the quotes”—indicating a stand-alone provision.~~501~~551 If a reference to “this act” or a If a reference to “this act” or a
particular subdivision (i.e., “this section”) is “outside the quotes,” it likelyparticular subdivision (i.e., “this section”) is “outside the quotes,” it likely ~~refers~~

~~495 See, e.g., CRS Legal Sidebar LSB10304,~~ ~~Waiver of Congressional Notification Period in the Arms Export Control~~
~~Act, by Jennifer K. Elsea.~~
~~496 See, e.g., Rubin v. Islamic Republic of Iran, 138 S. Ct. 816, 826 (2018) (finding “ no basis to conclude that~~
~~Congress’ failure~~ refers to the bill itself. The same reference “inside the quotes” likely refers to the underlying statute instead of the bill.552 3. If a provision’s text is unclear, do not assume that its caption or the bill’s title will clarify the provision. A court may not put much weight on such organizational elements. Similarly, clarifications in bill summaries, committee Congress’ failure to change ‘this section,’” which appeared in amendatory language, to a reference to a section of the to change ‘this section,’” which appeared in amendatory language, to a reference to a section of the
underlyingunderlying public lawpublic law “ “was the result of a mere drafting error”).was the result of a mere drafting error”).
~~497~~ 547 See, e.g., King v. Burwell,, King v. Burwell, 135 S.135 S. Ct. 2480, 2496, 2505 (2015) (Scalia, J., dissenting) (rejecting the majority’s Ct. 2480, 2496, 2505 (2015) (Scalia, J., dissenting) (rejecting the majority’s
interpretation of the phrase “established by the State” as “established by the State or the Federal Government,” interpretation of the phrase “established by the State” as “established by the State or the Federal Government,”
reasoning that unless the phrase producedreasoning that unless the phrase produced ~~an “ absurd~~ an “absurd result,” the Court had “result,” the Court had “ no authority to dismiss the terms of the no authority to dismiss the terms of the
lawlaw as a drafting fumble”).as a drafting fumble”).
~~498~~ 548 See, e.g., , King, 135 S., 135 S. Ct. at 2490 (majority opinion) (reasoning that although “it might seem that a Federal Ct. at 2490 (majority opinion) (reasoning that although “it might seem that a Federal
Exchange cannot” be “established by the State,” the phrase, “when read in context, ‘with a view to [its] place in the Exchange cannot” be “established by the State,” the phrase, “when read in context, ‘with a view to [its] place in the
overall statutory scheme,’ . . . isoverall statutory scheme,’ . . . is not so clear.” (internal citation omitted)); Koons Buick Pontiac GMC, Inc. v. Nigh, not so clear.” (internal citation omitted)); Koons Buick Pontiac GMC, Inc. v. Nigh,
543 U.S.543 U.S. 50, 65 (2004) (Stevens, J., concurring) (“[W50, 65 (2004) (Stevens, J., concurring) (“[W ]e cannot escape this unambiguous]e cannot escape this unambiguous statutory command by statutory command by
proclaiming that it wouldproclaiming that it would produce an absurdproduce an absurd result. We can, however, escape by usingresult. We can, however, escape by using common sense. common sense. ~~T he~~The history of history of
the provision makes it perfectly clear that Congress did not intend its 1995 amendment adding (iii) to repeal the pre-the provision makes it perfectly clear that Congress did not intend its 1995 amendment adding (iii) to repeal the pre-
existing interpretation of (i) as being limited by the ceiling contained in (ii). existing interpretation of (i) as being limited by the ceiling contained in (ii). ~~T hus~~Thus, the Court unquestionably decides , the Court unquestionably decides
this case correctly. It has demonstrated that a busy Congressthis case correctly. It has demonstrated that a busy Congress is fully capableis fully capable of enacting a scrivener’s error into law.”). of enacting a scrivener’s error into law.”).
~~499~~549 See supra “Definitions~~” and~~ ” and “General Rules and Exceptions.”
~~500~~.” 550 See supra “Freestanding Versus Amendatory Bills.” ”
~~501~~551 See supra “Freestanding Versus Amendatory Bills.” ”
552 See supra ““This Act” or “This Section” (or Other Subdivision).” Congressional Research Service Congressional Research Service
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~~to the bil itself. The same reference “inside the quotes” likely refers to the~~
~~underlying statute instead of the bil .502~~
3.
~~If a provision’s text is unclear, do not assume that its caption or the bil ’s title~~
~~wil clarify the provision. A court may not put much weight on those types of~~
~~organizational elements. Similarly, clarifications in bil summaries, committee~~
reports, and other unenacted statements may not persuade an agency or court as reports, and other unenacted statements may not persuade an agency or court as
to the meaning of a disputed provision.to the meaning of a disputed provision.~~503~~
553 4. 4.
Remember that statements of purpose and findings Remember that statements of purpose and findings ~~general y~~generally do not create legal do not create legal
rights or duties but could be used as evidence of Congress’s intended meaning.rights or duties but could be used as evidence of Congress’s intended meaning.~~504~~
554 5. 5.
In deciding what a term means, check for applicable definitions in the In deciding what a term means, check for applicable definitions in the ~~bil~~ bill and and
any statutes that the any statutes that the ~~bil would amend.505 Remember that a court wil likely~~ bill would amend.555 A court will likely give give
defined terms the meaning that Congress has chosen while defined terms the meaning that Congress has chosen while often according undefined terms undefined terms
~~usual y (but not always) have~~ their ordinary meaning. Observe whether a their ordinary meaning. Observe whether a
definition is prefaced by “means,” suggesting that what follows is an exhaustive definition is prefaced by “means,” suggesting that what follows is an exhaustive
definition, or “includes,” suggesting that what follows is definition, or “includes,” suggesting that what follows is ~~il ustrative~~illustrative but not but not
exhaustive.exhaustive.~~506~~556
6. 6.
Consider whether a provision is framed in mandatory (e.g., “ Consider whether a provision is framed in mandatory (e.g., “~~shal~~ shall”, “may not”) or ”, “may not”) or
discretionary (e.g., “may”) terms.discretionary (e.g., “may”) terms.~~507~~557 Note any exceptions, exemptions, or other Note any exceptions, exemptions, or other
special rules. Language that qualifies a provision special rules. Language that qualifies a provision ~~usual y~~usually signals an important signals an important
limitationlimitation on the provision’s scope (e.g., “Except as provided in paragraph (2),” on the provision’s scope (e.g., “Except as provided in paragraph (2),”
“for purposes of this section”). Captions may also indicate a default rule followed “for purposes of this section”). Captions may also indicate a default rule followed
by an exception (e.g., an “In General” in paragraph (1) may precede exceptions by an exception (e.g., an “In General” in paragraph (1) may precede exceptions
in paragraph (2)).in paragraph (2)).~~508~~558
7. 7.
In reviewing the substantive provisions in a In reviewing the substantive provisions in a ~~bil~~ bill, remember that a requirement , remember that a requirement
may not compel, and a prohibition may not deter, the specified conduct without may not compel, and a prohibition may not deter, the specified conduct without
an enforcement mechanism to promote compliance. Similarly, an enforcement mechanism to promote compliance. Similarly, ~~a benefit or~~
~~protection conferred on~~ private individuals or entities private individuals or entities ~~usual y cannot be enforced~~
~~by them~~usually cannot enforce a benefit or protection without an explicitly authorized private right of action. without an explicitly authorized private right of action.~~509~~
559 8. 8.
If a provision If a provision ~~potential y~~potentially conflicts with an existing law, consider whether it conflicts with an existing law, consider whether it
clearly addresses what rule should prevail through an exception, a clearly addresses what rule should prevail through an exception, a
notwithstanding clause, or a preemption clause.notwithstanding clause, or a preemption clause.~~510~~560
9. 9.
Check cross-references to other provisions or statutes. Not only Check cross-references to other provisions or statutes. Not only ~~wil~~ will this help to this help to
understand the effect of the amendments, but it can also help to identify technical understand the effect of the amendments, but it can also help to identify technical
drafting errors (e.g., a cross-reference to a subparagraph that no longer exists as a drafting errors (e.g., a cross-reference to a subparagraph that no longer exists as a
result of another amendment).result of another amendment).~~511~~

~~502 See supra “‘“This Act” or “This Section” (or Other Subdivision).”~~
~~503~~561 10. Note any delayed effective dates, sunset provisions, or other special timing rules. The more specific rules will likely override the default presumptions regarding the provisions’ immediate and continuing effect once enacted.562 553 See supra “Introductory and Organizational Elements of a Bill” and and “~~T he~~The Role of Statutory Interpretation.”
~~504~~.” 554 See supra “Prefatory Statements.”
~~505~~.” 555 See supra “Definitions.”
~~506~~.” 556 See supra ““Means” Versus “Includes”.’”
~~507~~” 557 See supra “‘“Shall” Versus “May”.” 558
~~508~~ See supra “General Rules and Exceptions.”
~~509~~.” 559 See supra “Rights, Remedies, and Enforcement .”
~~510~~.” 560 See supra “How a New Act Affects Existing Law,” ” ““Notwithstanding” Clauses,”” and and “Preemption Clauses.”
~~511~~561 See supra “~~T echnical~~Technical and Conforming Amendments”” and and “Drafting Errors..” 562 See supra “Timing Rules.” ”
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~~link to page 58~~ 85 Understanding Federal Legislation ~~Federal Legislation~~

~~10. Note any delayed effective dates, sunset provisions, or other special timing rules.~~
~~The more specific rules wil likely override the default presumptions regarding~~
~~the provisions’ immediate and continuing effect once enacted.512~~

Author Information

Victoria L. Killion Victoria L. Killion

Legislative Attorney Legislative Attorney

Acknowledgments
Colleagues in the American Law Division and the Government and Finance Division of CRS provided Colleagues in the American Law Division and the Government and Finance Division of CRS provided
valuable feedback, especially Valerie Brannon, Valerie Heitshusen, Bill Heniff Jr., Andrew Nolan, and valuable feedback, especially Valerie Brannon, Valerie Heitshusen, Bill Heniff Jr., Andrew Nolan, and
Nicole Vanatko. Sandra Edwards and Jonathan Kardashian in CRS’s Office of Publishing provided Nicole Vanatko. Sandra Edwards and Jonathan Kardashian in CRS’s Office of Publishing provided
essential support on the figures and general formatting.essential support on the figures and general formatting.

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
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under the direction of Congress. Information in a CRS Report should under the direction of Congress. Information in a CRS Report should ~~n ot~~not be relied upon for purposes other be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in than public understanding of information that has been provided by CRS to Members of Congress in
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~~512 See supra “T iming Rules.”~~
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