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

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Understanding Federal Legislation: A Section-
~~September 27, 2021~~May 19, 2022
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 to be the reader and the seasoned practitioner alike. What a congressional drafter understands to 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’s intent, judges may draw on to resolve the law’s meaning. Although the court’s ultimate goal is to effectuate Congress’s intent, judges may draw on
different philosophies or use different tools to arrive at their conclusions about what the law means. different philosophies or use different 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 curtail it without an enforcement mechanism. just as prohibiting conduct may not curtail it 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” clause. existing law or otherwise address the potential conflict through an exception or a “notwithstanding” 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.
 The phrase “notwithstanding any other provision of law” is susceptible to different interpretations  The 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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Understanding Federal Legislation

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drafting manual for the U.S. House of Representatives cautions that legislation “should drafting manual for the U.S. House of Representatives cautions that legislation “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 will increase readability and understandability.”2 Even when these lessons are heeded, the they will increase readability and understandability.”2 Even when these lessons are heeded, the
length and complexity of federal legislation can make it difficult for the average reader to length and complexity of federal legislation can make it difficult for the average reader to
understand what changes a given bill would make to the law.3 Oftenunderstand what changes a given bill would make to the law.3 Often, the picture is further the picture is further
obscured when the bill is viewed against the vast backdrop of legal principles on how to interpret obscured when the bill is viewed against the vast backdrop of legal principles on how to interpret
legislative language.4 legislative language.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 bill and modern judicial approaches to interpreting legal significance of each component of a bill 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 bills for those who may not have extensive experience in this area.6 In addition, although federal bills 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 challenges if a bill is enacted. lead to interpretive confusion or even legal challenges if a bill 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 bills, such as findings and of legislation. The report then sets out the major components of federal bills, 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 bill. legislation. The report concludes with general takeaways and suggestions for reading a 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 (“In 1948 the average length of bills that made it https://www.economist.com/united-states/2013/11/23/outrageous-bills (“In 1948 the average length of bills that made it
through Congress was two and a half pages. Now it is 20. That may not sound too much, but the mean is brought down through Congress was two and a half pages. Now it is 20. That may not sound too much, but the mean is brought down
by short, uncontroversial laws. . . . The most consequential laws, by contrast, go on for thousands of pages.”). by short, uncontroversial laws. . . . The most consequential laws, 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
legal systems, there are linguistic usages and conventions distinctive to private legal documents in various fields and to legal systems, there are linguistic usages and conventions distinctive to private legal documents in various fields and to
governmental legislation. And there are jurisprudential conventions that make legal interpretation more than just a governmental legislation. And there are jurisprudential conventions that make legal interpretation more than just a
linguistic exercise . . . .”). linguistic exercise . . . .”).
5 This report cites Supreme Court decisions wherever possible because their holdings are binding on lower courts. 5 This report cites Supreme Court decisions wherever possible because their holdings are binding on lower courts.
Some legal scholars have observed that statutory interpretation methods vary at different levels of the federal judiciary, Some legal 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 “The Role of Statutory Interpretation.”
6 For an introduction to the legislative process, see CRS Report R42843, 6 For an introduction to the legislative process, see CRS Report R42843, Introduction to the Legislative Process in the
U.S. Congress, by Valerie Heitshusen. , by Valerie Heitshusen.
7 References to “congressional drafters” in this report primarily refer to the legislative branch employees who draft or 7 References to “congressional drafters” in this report primarily refer to the legislative branch employees who draft or
assist in drafting legislation, including individual Members of Congress, legislative staff, and attorneys within the assist in drafting legislation, including individual Members of Congress, legislative staff, and attorneys within the
House and Senate Offices of the Legislative Counsel. Entities outside of Congress, such as representatives of the House and Senate Offices of the Legislative Counsel. Entities outside of Congress, such as representatives of the
executive branch or interest groups, may also supply legislative language throughout the life cycle of a bill. executive branch or interest groups, may also supply legislative language 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 bill at issue, the subject matter involved, and agency and judicial interpretations in the the bill at issue, the subject matter involved, and agency and judicial interpretations in the
relevant area.8 relevant area.8

Report Terminology on Types of Federal Legislation
This report focuses on federal legislation9 in the form of This report focuses on federal legislation9 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, the terms “houses of Congress and presented to the President for consideration.10 For simplicity, the terms “bill” and ” and
““legislation” are used interchangeably. Bil s become law upon ” are used interchangeably. Bil s become 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 overrides a presidential veto.11 session; or (3) when Congress overrides a presidential veto.11
The report also references elements characteristic of The report also references elements characteristic of joint resolutions—the other vehicle that Congress may —the other vehicle that Congress may
use to pass laws—where applicable. Like bil s, joint resolutions require passage by both houses and presentment use to pass laws—where applicable. Like bil s, joint resolutions require passage by both houses and presentment
to the President.12 Simple and concurrent resolutions, which do not require the President’s signature and do not to the President.12 Simple and concurrent resolutions, which do not require the President’s 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 decisions involving questions of statutory interpretation typically concern enacted legislation rather than Judicial decisions involving questions of statutory interpretation typically concern enacted legislation rather than
pending legislation.14 Accordingly, the report generally refers to pending legislation.14 Accordingly, the report generally refers 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 terms “statutory interpretation, and to that end uses the terms “public law,”15 “,”15 “act,” and “,” and “statute” interchangeably ” interchangeably
unless otherwise noted. unless otherwise noted.
A Bill in Context
A key step in understanding the potential effects of a given bill is to place the bill in the larger A key step in understanding the potential effects of a given bill is to place the bill 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 bill and why drafters might addresses the differences between a freestanding and an amendatory bill 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 “The Role of Statutory Interpretation.”
9 This report is not intended to provide guidance in reviewing legislation at the state or local levels, where drafting rules 9 This report is not intended to provide guidance in reviewing legislation at the state or local levels, where drafting rules
and practices may vary depending on the jurisdiction. and practices may vary depending on the jurisdiction. See, e.g., MD. DEP’T OF LEGISLATIVE SERVS., LEGISLATIVE , MD. DEP’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 Infographic IG10005, CRS Infographic IG10005, From Bill to Law: Stages of the Legislative Process, by Valerie Heitshusen , by Valerie 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. 12 A different process exists for joint resolutions proposing a constitutional amendment. See generally CRS Report CRS Report
R46603, R46603, Bills, Resolutions, Nominations, and Treaties: Characteristics and Examples of Use, by Jane A. Hudiburg. , 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.htmleg_laws_acts.htm#3 (last visited (last visited ~~July 26, 2020~~May 19, 2022) (explaining how bills and the three forms of resolutions differ). ) (explaining how bills 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 regulations are ripe United States, 304 F.3d 1349, 1358 (Fed. Cir. 2002) (reasoning that “facial challenges to statutes or regulations 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 was “far from ripe” because, among other contingencies, Congress had not prospective congressional pay adjustment was “far from ripe” because, among other contingencies, Congress had not
yet passed a law approving the pay adjustment, as required by statute). yet passed a law approving the pay adjustment, as required by statute).
15 “Most laws passed by Congress are public laws 15 “Most laws passed by Congress are public laws,” ”—laws that “affect society as a wholelaws that “affect society as a whole,” rather than “an individual, ” rather than “an individual,
family, or small group.” U.S. Gov’t Publishing Office, family, or small group.” U.S. Gov’t Publishing Office, About Public and Private Laws, GOVINFO, , GOVINFO,
https://www.govinfo.gov/help/plaw (last visited https://www.govinfo.gov/help/plaw (last visited ~~July 26, 2020~~May 19, 2022). ).
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part refers primarily to legislation outside of appropriations bills, which are not presumed to make part refers primarily to legislation outside of appropriations bills, which are not presumed to make
permanent, substantive changes to existing law.16 permanent, substantive changes to existing law.16
How a New Act Affects Existing Law
A bill has no legal effect on existing law until it is enacted—that is, until it passes both houses of A bill 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 bill within ten days Congress and is signed by the President (or the President does not act on the bill 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 bill becomes an act of Congress, and its content, the law.18 That law takes effect enacted, the bill 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 Unless the act itself specifies either upon enactment or at a later time as specified by Congress.19 Unless the act itself specifies
otherwise,20 the act remains in force until Congress otherwise,20 the act remains in force until Congress amends (i.e., changes) or (i.e., changes) or repeals (i.e., (i.e.,
revokes) it.21 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 generally will heed Congress’s existence,” and the statutes’ order of enactment.23 Courts generally will 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~~

16 16 See Tenn. Valley Auth. v. Hill, 437 U.S. 153, 190–91 (1978) (“We recognize that both substantive enactments and Tenn. Valley Auth. v. Hill, 437 U.S. 153, 190–91 (1978) (“We recognize that both substantive enactments and
appropriations measures are ‘Acts of Congress,’ but the latter have the limited and specific purpose of providing funds appropriations measures are ‘Acts of Congress,’ 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. 200, 222 (1980) (“Indeed, the rules of both Houses United States v. Will, 449 U.S. 200, 222 (1980) (“Indeed, the rules of both Houses
limit the ability to change substantive law through appropriations measures. Nevertheless, when Congress desires to limit the ability to change substantive law through appropriations measures. Nevertheless, when Congress desires to
suspend or repeal a statute in force, ‘[there] can be no doubt that . . . it could accomplish its purpose by an amendment suspend or repeal a statute in force, ‘[there] can be no doubt that . . . it could accomplish its purpose by an amendment
to an appropriation bill, or otherwise.’ ‘The whole question depends on the intention of Congress as expressed in the to an appropriation bill, or otherwise.’ ‘The whole question depends on the intention of Congress as expressed in the
statutes.’ (internal citations omitted)). For more information on interpreting appropriations bills, see CRS Report statutes.’ (internal citations omitted)). For more information on interpreting appropriations bills, see CRS Report
R46899, R46899, Regular Appropriations Acts: Selected Statutory Interpretation Issues, by Sean M. Stiff. , by Sean M. Stiff.
17 U.S. CONST. art. I, § 7, cl. 2 17 U.S. CONST. art. I, § 7, cl. 2.
; see generally Enactment of Legislation, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artI-S7-C2-1/ALDE_00001052/. 18 Although a bill is 18 Although a bill is styled as “An Act” once it passes one house of Congress, it does not become law until it is enacted. as “An Act” once it passes one house of Congress, it does not become law until it is 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 drafting (last visited ~~July 27, 2020~~May 19, 2022) [hereinafter ) [hereinafter HOLC Guide to Legislative Drafting] (“When a bill passes one house ] (“When a bill passes one house
of Congress, its designation changes from “A Bill” to “An Act”, even though it has not yet become law.”). of Congress, its designation changes from “A Bill” to “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. & Constr. Trades Dep’t v. Martin, 961 F.2d 269, 273–74 (D.C. Cir. 1992) (“While Bldg. & Constr. Trades Dep’t v. Martin, 961 F.2d 269, 273–74 (D.C. Cir. 1992) (“While
appropriation acts are ‘Acts of Congress’ which can substantively change existing law, there is a very strong appropriation acts are ‘Acts of Congress’ which can substantively change existing law, 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 States, 40 U.S.(15 Pet.) 423 (1841); Nat’l Treasury Emps. Union v. , 437 U.S. at 190; Minis v. United States, 40 U.S.(15 Pet.) 423 (1841); Nat’l Treasury 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, unless it expressly 274 (“In fact, a federal appropriations act applies only for the fiscal year in which it is passed, unless it expressly
provides otherwise.” (citing 31 U.S.C. § 1301(c)(2) (1991)). provides otherwise.” (citing 31 U.S.C. § 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 Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018 (1984) (internal quotation marks omitted) (quoting Reg’l Rail 23 Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1018 (1984) (internal quotation marks omitted) (quoting Reg’l Rail
Reorganization Act Cases, 419 U.S. 102, 133–34 (1974)). Reorganization Act Cases, 419 U.S. 102, 133–34 (1974)).
24 24 See Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1624 (2018)Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1624 (2018) (observing the presumption that “‘Congress will (observing the presumption that “‘Congress will
specifically address’ preexisting law when it wishes to suspend its normal operations in a later statute.” (quoting United specifically address’ preexisting law when it wishes to suspend its normal operations in a later statute.” (quoting United
States v. Fausto, 484 U.S. 439, 452, 453 (1988))). States v. Fausto, 484 U.S. 439, 452, 453 (1988))).
25 See, e.g., 28 U.S.C. § 1334(b) (“Except as provided in subsection (e)(2), and notwithstanding any Act of Congress
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exception or a notwithstanding clause.25 If, however, the new act is silent on the interplay between the two laws, a court will not assume that Congress intended to repeal the old law—in between the two laws, a court will 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. More than that, respect for the separation of powers counsels restraint. in its work. More than that, respect for the separation of powers counsels restraint.
Allowing judges to pick and choose between statutes risks transforming them from Allowing judges to pick and choose between statutes risks transforming them from
expounders of what the lawexpounders of what the law is into policymakers choosing what the law into policymakers choosing what 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 implicitly repeals the earlier one “to the extent of the conflict.”30 An irreconcilable new law implicitly 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 mutually coexist.”31 Second, a court may recognize an implied repeal “if the later act cannot mutually 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 Congressional intent to ~~wholly~~ replace the old law replace the old law in its entirety is key because the Supreme Court “has is key because the Supreme Court “has ~~not~~

25 See, e.g., 28 U.S.C. § 1334(b) (“Except as provided in subsection (e)(2), 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 , the district courts shall have
original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases
under title 11.” (emphasis added)); 29 U.S.C. § 3174(c)(3)(B)(i) (“under title 11.” (emphasis added)); 29 U.S.C. § 3174(c)(3)(B)(i) (“Notwithstanding section 479B of the Higher
Education Act of 1965 (20 U.S.C. § 1087uu) and (20 U.S.C. § 1087uu) and except as provided in clause (ii), provision of such training services , provision of such training services
shall be limited to individuals who. . . .” (emphasis added)). shall be limited to individuals who. . . .” (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, 419 , 467 U.S. at 1017 (internal quotation marks omitted) (quoting Reg’l Rail Reorganization Act Cases, 419
U.S. 102, 133 (1974)). U.S. 102, 133 (1974)).
27 27 Id.; ; see, e.g., POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102, 115, 118 (2014) (holding that the Food, Drug, , POM Wonderful LLC v. Coca-Cola Co., 573 U.S. 102, 115, 118 (2014) (holding that the Food, Drug,
and Cosmetic Act (FDCA) did not preclude the petitioner’s Lanham Act false labeling suit, reasoning that the statutes and Cosmetic Act (FDCA) did not preclude the petitioner’s Lanham Act false labeling suit, reasoning that the statutes
were “complementary” because “[a]lthough both statutes touch on food and beverage labeling, the Lanham Act were “complementary” because “[a]lthough both statutes touch on food and beverage labeling, the Lanham Act
protects commercial interests against unfair competition, while the FDCA protects public health and safety”); protects commercial interests against unfair competition, while the FDCA protects public health and safety”);
Morton v. Mancari, 417 U.S. 535, 550–51 (1974) (“Where there is no clear intention otherwise, a specific statute will Morton v. Mancari, 417 U.S. 535, 550–51 (1974) (“Where there is no clear intention otherwise, a specific statute will
not be controlled or nullified by a general one, regardless of the priority of enactment.”). not be controlled or nullified by a general one, regardless of the priority of enactment.”).
28 28 Epic Sys. Corp., 138 S. Ct. at 1624 (“When confronted with two Acts of Congress allegedly touching on the same , 138 S. Ct. at 1624 (“When confronted with two Acts of Congress allegedly 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 Radzanower v. Touche Ross & Co., 426 U.S. 148, 155 (1976) (“It is not enough to show that the two statutes 31 Radzanower v. Touche Ross & Co., 426 U.S. 148, 155 (1976) (“It is not enough to show that the two statutes
produce differing results when applied to the same factual situation, for that no more than states the problem.”); produce differing results when applied to the same factual situation, for that no more than states the problem.”); see
also J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 142 (2001) (“The rarity with which [the Court J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 142 (2001) (“The rarity with which [the Court
has] discovered implied repeals is due to the relatively stringent standard for such findings, namely, that there be has] discovered implied repeals is due to the relatively stringent standard for such findings, namely, that there be
an irreconcilable conflict between the two federal statutes at issue.” (internal quotation marks and citation omitted)); an irreconcilable conflict between the two federal statutes at issue.” (internal quotation marks and citation omitted));
see, e.g., EC Term of Years Tr. v. United States, 550 U.S. 429, 435 (2007) (“We simply cannot reconcile the 9-month , EC Term of Years Tr. v. United States, 550 U.S. 429, 435 (2007) (“We simply cannot reconcile the 9-month
limitations period for a wrongful levy claim under § 7426(a)(1) with the notion that the same challenge would be open limitations period for a wrongful levy claim under § 7426(a)(1) with the notion that the same challenge would be open
under § 1346(a)(1) for up to four years.”). under § 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).
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not hesitated to give effect to two statutes that overlap, so long as each [statute] reaches some distinct hesitated to give effect to two statutes that overlap, so long as each [statute] reaches some distinct
cases.”33 cases.”33
Freestanding Versus Amendatory Bills
Bills, once enacted, amend the law, but they can do so in one of two ways.34 They can create new Bills, 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 bill text itself generally informs the reader of the type of change the bill, or a given statutes.35 The bill text itself generally informs the reader of the type of change the bill, or a given
section of a bill, would make. section of a bill, would make.
In a freestanding bill, the legal requirements or prohibitions are set out under sections of the bill In a freestanding bill, the legal requirements or prohibitions are set out under sections of the bill
without reference to an existing public law. For example, in the bill excerpt shown iwithout reference to an existing public law. For example, in the bill excerpt 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 bill. section 3 of the bill.

33 33 J.E.M. Ag. Supply, Inc., 534 U.S. at 144. , 534 U.S. at 144.
34 34 See generally CRS Report R45190, CRS Report R45190, From Slip Law to United States Code: A Guide to Federal Statutes for
Congressional Staff, by Eva M. Tarnay. , by Eva M. 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, but that this statute does not expressly amend existing mean that it “has not been the subject matter of prior law, but that this statute does not expressly amend existing
statutes”). statutes”).
36 Excerpts from actual bills are provided throughout this report for illustration, and their inclusion does not imply the 36 Excerpts from actual bills are provided throughout this report for illustration, and their inclusion does not imply the
endorsement of any particular language or drafting style. endorsement of any particular language or drafting style.
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Figure 1. Freestanding Bill with Requirements Under Separate Bill Sections

Source: VA Health Center Management Stability and Improvement Act, H.R. 3956, 114th Cong. (as referred in VA Health Center Management Stability and Improvement Act, H.R. 3956, 114th Cong. (as referred 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 bill or section may be written in the form of a new statutory title.37 For example, A freestanding bill or section may be written in the form of a new statutory title.37 For example,
the 114th Congress considered and enacted a bill “to implement the Convention on the the 114th Congress considered and enacted a bill “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 inand for other purposes.”38 As shown in Figure 2, the first (and only)39 section of the bill contains he first (and only)39 section of the bill 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 bill sets forth the six titles that comprise the Ensuring Act’.” Directly below the short title, the bill 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 bill, while the reference example, “SECTION 1. SHORT TITLE” refers to the first section of the bill, 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 used in various federal drafting styles, with each beginning with “title”). ed. 2008) (comparing the superior headings used in various federal drafting styles, with each beginning with “title”).
38 38 See Ensuring Access to Pacific Fisheries Act, H.R. 6452, 114th Cong. (as introduced, Dec. 7, 2016), Ensuring 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 Fisheries Act, Pub. L. https://www.congress.gov/114/bills/hr6452/BILLS-114hr6452ih.pdf; Ensuring Access to Pacific Fisheries 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, but freestanding bills can have more than one section a 39 Section 1 happens to be the only section of this bill, but freestanding bills can 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 Fisheries Act, H.R. 6452, 114th Congress (2016) (as enrol ed), Ensuring Access to Pacific Fisheries Act, H.R. 6452, 114th Congress (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 freestanding bills, amendatory bills or amendatory sections in a bill typically include a Unlike freestanding bills, amendatory bills or amendatory sections in a bill typically include a
clause referencing a specific section of the existing law (e.g., “section # of title X”) and signaling clause referencing a specific section of the existing law (e.g., “section # of title X”) and signaling
that an amendment will follow (e.g., “is amended by . . .”).40 For example, another bill considered that an amendment will follow (e.g., “is amended by . . .”).40 For example, another bill 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 is amended by striking ‘XX’ and inserting ‘YY’.’.”); mood. Example: ‘Section 12 of the ABC Act is amended by striking ‘XX’ and inserting ‘YY’.’.”); see generally
FILSON & STROKOFF, FILSON & STROKOFF, supra note 37, at 191 (distinguishing between the “vehicular language” that introduces the note 37, at 191 (distinguishing between 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. 114-250, 130 Stat. 1001, https://www.congress.gov/114/plaws/114hr4902ih.pdf; Act of Dec. 8, 2016, Pub. L. No. 114-250, 130 Stat. 1001, https://www.congress.gov/114/plaws/
publ250/PLAW-114publ250.pdf. publ250/PLAW-114publ250.pdf.
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bill, an excerpt of which appears at bill, an excerpt of which appears at 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 availability pay to employees of U.S. Customs and Border Code, to expand law enforcement availability pay to employees of U.S. Customs and Border
Protection’s Air and Marine Operations.” Section 1 of the bill states that “Section 5545a(i) of title Protection’s Air and Marine Operations.” Section 1 of the bill 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), https://www.congress.gov/114/bil s/hr4902/BILLS-H.R. 4902, 114th Cong. (2016) (as enrol ed), https://www.congress.gov/114/bil s/hr4902/BILLS-~~114~~
~~hr4902enr~~114hr4902enr.pdf. .pdf.
As shown i As shown in Figure 3, when a bill would amend an existing statute, the text to be added or hen a bill would amend an existing statute, the text to be added or
deleted is placed in quotation marks. Amendatory bills can also have freestanding provisions, deleted is placed in quotation marks. Amendatory bills can also have freestanding provisions,
such as the “Applicability” provision in section 1(b).43 Congressional drafters sometimes refer to such as the “Applicability” provision in section 1(b).43 Congressional drafters sometimes refer to
amendments in a bill as “inside the quotes” and freestanding provisions as “outside the quotes.”44 amendments in a bill 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 overall statutory scheme and any general rules or definitions that might apply to the place in the overall statutory scheme and any general rules or definitions that might apply to the
bill.45 To understand the bill.45 To understand the specific amendments the bill is proposing, it is sometimes necessary to amendments the bill is proposing, it is sometimes necessary to
annotate a copy of the statute that the bill is amending to see what language would be added or annotate a copy of the statute that the bill is amending to see what language would be added or
deleted.46 deleted.46

42 42 See supra note 18 (explaining that a bill is styled as “An Act” once it passes one house of Congress). note 18 (explaining that a bill is styled as “An Act” once it passes one house of Congress).
43 43 See HOLC Guide to Legislative Drafting, , supra note 18 (“Even if all of the substantive provisions of a bill are inside note 18 (“Even if all of the substantive provisions of a bill are inside
the quotes, it will still have technical provisions that are freestanding, most notably amendatory instructions that the quotes, it will still have technical provisions that are freestanding, most notably amendatory instructions that
indicate where in the existing statute the new material is to be placed.”). indicate where in the existing statute the new material is to be placed.”).
44 44 See id.
45 45 See, e.g., Off. of Law Revision Counsel, , Off. of Law 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 subpartD/chapter55/subchapter5&edition=prelim (last visited ~~July 27, 2020~~May 19, 2022) (displaying the table of contents for ) (displaying the table of contents for
5 U.S.C. § 5545a referenced in5 U.S.C. § 5545a referenced in Figure 3).
46 When a bill is reported out of committee, a comparative print or “Ramseyer” is prepared to indicate changes to the 46 When a bill 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 bill is enacted into law, it may then be added to the Once a bill 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.51 or chapters that contain multiple sections.51
Figure 4. Divisions Within a Section of the Code

Source: Excerpt of 10 U.S.C. § 7104 (2019) from Excerpt of 10 U.S.C. § 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 26.12), https://www.govinfo.gov/content/pkg/SMAN-113/pdf/SMAN-113.pdf#page=58. (Senate Standing Rule 26.12), https://www.govinfo.gov/content/pkg/SMAN-113/pdf/SMAN-113.pdf#page=58.
47 1 U.S.C. § 204(a). 47 1 U.S.C. § 204(a).
48 2 U.S.C. §§ 285, 285b. 48 2 U.S.C. §§ 285, 285b.
49 Off. of Law Revision Counsel, 49 Off. of Law Revision Counsel, United States Code: About the United States Code and This Website, ,
http://uscode.house.gov/about_code.xhtml (last visited http://uscode.house.gov/about_code.xhtml (last visited ~~July 27, 2020~~May 19, 2022). ).
50 Off. of Law Revision Counsel, 50 Off. of Law Revision Counsel, United States Code: Detailed Guide to the United States Code Content and Features, ,
https://uscode.house.gov/detailed_guide.xhtml (last visited https://uscode.house.gov/detailed_guide.xhtml (last visited ~~July 27, 2020~~May 19, 2022) [hereinafter ) [hereinafter Detailed Guide to the U.S.
Code]. A subparagraph may be further broken down into “clauses, subclauses, and items.” ]. A subparagraph may be further broken down into “clauses, subclauses, and items.” Id.
51 51 Id.; ; see, e.g., 11 U.S.C. §§ 101 et seq. (Bankruptcy). , 11 U.S.C. §§ 101 et seq. (Bankruptcy).
52 Off. of Law Revision Counsel, 52 Off. of Law Revision Counsel, United States Code: Frequently Asked Questions and Glossary, ,
http://uscode.house.gov/faq.xhtml (last visited http://uscode.house.gov/faq.xhtml (last visited ~~July 27, 2020~~May 19, 2022). ).
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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.53 section’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 diminish its status as federal law.54 In other words, it has does not diminish its status as federal law.54 In other words, it has
the same legal effect regardless of where it is classified in (i.e., added to) the the same legal effect regardless of where it is classified in (i.e., added to) the Code. .
The The Code also contains also contains editorial notes.55 Like statutory notes, these notes fol ow the text of a .55 Like statutory notes, these notes fol ow the text of a Code section. section.
However, unlike statutory notes, editorial notes are not provisions of law enacted by Congress. Instead, editorial However, unlike statutory notes, editorial notes are not provisions of law enacted by Congress. 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, derivation, history, references, translations, effectiveness and applicability, codification, defined terms, source, derivation, history, references, translations, effectiveness and applicability, codification, defined terms,
prospective amendments, and related matters.”56 prospective amendments, 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
basically one law enacted by Congress in the form of a title of the Code,” which does not then basically 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
called positive law codification, OLRC is tasked with organizing statutes enacted at different called positive law codification, OLRC is tasked with organizing statutes enacted at different
times into a codification bill so that Congress can reenact the law as a single restatement of the times into a codification bill so that Congress can reenact the law as a single restatement of the
law on that subject.60 law 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
or dispute about the wording of a non-positive law, the controlling wording appears not in the Code, but in the United States Statutes at Large (the Statutes at Large), the official compilation of
53 53 See generally Off. of Law Revision Counsel, Off. of Law Revision Counsel, United States Code: About Classification of Laws to the United States
Code, http://uscode.house.gov/about_classification.xhtml (last visited , http://uscode.house.gov/about_classification.xhtml (last visited ~~July 27, 2020~~May 19, 2022); ); Detailed Guide to the U.S. Code, ,
supra note 50. note 50.
54 54 See Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1251 (11th Cir. 2005) (per curiam) (“That the Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1251 (11th Cir. 2005) (per curiam) (“That the
[Torture Victim Protection Act of 1991 (TVPA)], which was published in the Statutes at Large, appears in the United [Torture Victim Protection Act of 1991 (TVPA)], which was published in the Statutes at Large, appears in the United
States Code as a historical and statutory note to the Alien Tort Act does not make the TVPA any less the law of the States Code as a historical and statutory note to the Alien Tort Act does not make the TVPA any less the law of the
land.”); Conyers v. MSPB, 388 F.3d 1380, 1382 n.2 (Fed. Cir. 2004) (“[T]he fact that this provision [of the Aviation land.”); Conyers v. MSPB, 388 F.3d 1380, 1382 n.2 (Fed. Cir. 2004) (“[T]he fact that this provision [of the Aviation
and Transportation Security Act] was codified as a statutory note is of no moment. The Statutes at Large provide the and Transportation Security Act] was codified as a statutory note is of no moment. The Statutes at Large provide the
evidence of the laws of the United States.”). evidence of the laws 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 Report R45190, CRS Report R45190, From Slip Law to United States Code: A Guide to Federal Statutes for Congressional Staff, ,
supra note 34, at 6–8. note 34, at 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/, https://uscode.house.gov/
codification/legislation.shtml (last visited codification/legislation.shtml (last visited ~~July 27, 2020~~May 19, 2022) [hereinafter ) [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.,, THE BLUEBOOK: A UNIFORM SYSTEM OF CITATION R. 12.2.1(a), 12.3 (Columbia L. Rev. Ass’n et al. eds., THE 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 “cite statutes currently in force” to the 21st ed. 2020) (directing legal professionals to “cite statutes currently in force” to the U.S. Code “[i]f available”). “[i]f available”).
62 1 U.S.C. § 204(a) (“The matter set forth in the edition of the Code of Laws of the United States current at any time 62 1 U.S.C. § 204(a) (“The 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 laws of the United States, general and shall, together with the then current supplement, if any, establish prima facie the laws 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, That whenever titles of such Code shall have been enacted into That whenever titles of such Code shall have been enacted into
positive law the text thereof shall be legal evidence of the laws therein contained, in all the courts of the United States, positive law the text thereof shall be legal evidence of the laws therein contained, in all the courts of the United States,
the several States, and the Territories and insular possessions of the United States.”). the several States, and the Territories 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~~
Code, but in the United States Statutes at Large (the Statutes at Large), 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.65 meaning when interpreting a statute.65
When it comes to understanding a bill, it also helps to know that amendments to positive and non- When it comes to understanding a bill, 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 parenthetically (e.g reference parenthetically (e.g., 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 showing that the wording in the underlying statute is different. Typically, statutory text appearing in the Statutes at by showing that the wording in the underlying statute is different. Typically, statutory text appearing in the Statutes at
Large is presented as proof of the words in the underlying statute. The text of the law appearing in the Statutes at Large Large is presented as proof of the words in the underlying statute. The text of the law appearing in the Statutes at Large
prevails over the text of the law appearing in a non-positive law title.”); Gov’t Publ’g Off., prevails over the text of the law appearing in a non-positive law title.”); Gov’t Publ’g Off., United States Statutes at
Large, https://www.govinfo.gov/app/collection/STATUTE (last visited , https://www.govinfo.gov/app/collection/STATUTE (last visited ~~July 27, 2020~~May 19, 2022) (noting that the ) (noting that the Statutes at Large
is the “permanent collection of all laws . . . enacted during each session of Congress”) (citing 1 U.S.C. § 112 (stating is the “permanent collection of all laws . . . enacted during each session of Congress”) (citing 1 U.S.C. § 112 (stating
that the that the Statutes at Large “shall be legal evidence of laws . . . therein contained, in all the courts of the United States”)). “shall be legal evidence of laws . . . 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 by Congress, and note 58 (“Because a positive law title is enacted as a whole by Congress, and
the original enactments are repealed, statutory text appearing in a positive law title has Congress’s ‘authoritative the original enactments are repealed, statutory text appearing in a positive law title has Congress’s ‘authoritative
imprimatur’ with respect to the wording of the statute.” (quoting Wash.-Dulles Transp., Ltd. v. Metro. Wash. Airports imprimatur’ with respect to the wording of the statute.” (quoting Wash.-Dulles Transp., 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. district court rejected an agency’s conclusion , a U.S. district court rejected an agency’s conclusion
that a statute providing payments to the Seneca Nation of Indians to resolve inequities relating to past leases concerned that a statute providing payments to the Seneca Nation of Indians to resolve inequities relating to past leases concerned
“a settlement of a land claim” for purposes of another law prohibiting gaming on certain lands acquired in trust for the “a settlement of a land claim” for purposes of another law prohibiting gaming on certain lands acquired in trust for the
benefit 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, benefit 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,
2008). Among other reasons, the court noted that the agency relied on the wrong title in support of its interpretation. 2008). Among other reasons, the court noted that the agency relied on the wrong 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 “Seneca Nation (New York) Land Claims , was “Seneca Nation (New York) Land Claims
Settlement,” Congress had actually assigned the act the short title “Seneca Nation Settlement Act of 1990,” which Settlement,” Congress had actually assigned 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. The court held that it was unreasonable for the agency to . at 178–79. The 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 Congress had not yet enacted the applicable because 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 unless it is in a positive-law title of the designation unless 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 bill—whether it, for example, creates a The prospective legal effect of any given provision in a bill—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 bill as a whole.67 Because federal bills often follow a similar format, it helps to context of the bill as a whole.67 Because federal bills often follow a similar format, it helps to
think about the various parts of a bill and the legal rules generally associated with those types of think about the various parts of a bill and the legal rules generally 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 legislative power resides in Congress,68 other elected officials, entities in the public and While the legislative power resides in Congress,68 other elected officials, entities in the public and
private sectors, and individuals all have an interest in what acts of Congress say and mean. private sectors, and individuals all have an interest in what acts of Congress say and mean.
Consider the basic life cycle of a law. It starts out as a bill subject to interpretation by its drafters, Consider the basic life cycle of a law. It starts out as a bill 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, 566 U.S. 399, 412 (2012) (construing “two statutory , Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S, 566 U.S. 399, 412 (2012) (construing “two statutory
phrases” “against the backdrop of yet a third statutory phrase,” and “in the context of the entire statute”); Hawaii v. phrases” “against the backdrop of yet a third statutory phrase,” and “in the context of the entire statute”); Hawaii v.
Office of Hawaiian Affairs, 556 U.S. 163, 173 (2009) (observing that the “first substantive provision” in a joint Office of Hawaiian Affairs, 556 U.S. 163, 173 (2009) (observing that the “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 uses to create substantive rights”). kind that Congress uses 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 bill to the President, who may sign the bill into law, sometimes body.69 Congress then presents the bill to the President, who may sign the bill 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.74 are 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 Congress’s meaning.76 ~~But it~~It is not a simple formula. While, for the Supreme Court and many 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 approachesfederal courts, statutory interpretation begins with the law’s text,77 there are different approaches to

69 69 See generally CRS Infographic IG10005, CRS Infographic IG10005, From Bill to Law: Stages of the Legislative Process, by Valerie Heitshusen , by Valerie Heitshusen
and Jennifer E. Manning.and Jennifer E. Manning.
70 70 See, e.g., Presidential Statement on Signing the CARES Act, 2020 DAILY COMP. PRES. DOC. 194 (Mar. 27, 2020), , Presidential Statement on Signing the CARES Act, 2020 DAILY COMP. PRES. DOC. 194 (Mar. 27, 2020),
https://www.govinfo.gov/content/pkg/DCPD-202000194/pdf/DCPD-202000194.pdf (“Today, I have signed into law https://www.govinfo.gov/content/pkg/DCPD-202000194/pdf/DCPD-202000194.pdf (“Today, I have signed into law
H.R. 748, the ‘Coronavirus Aid, Relief, and Economic Security Act’ or the ‘CARES’ Act (the ‘Act’). The Act makes H.R. 748, the ‘Coronavirus Aid, Relief, and Economic Security Act’ or the ‘CARES’ Act (the ‘Act’). The Act makes
emergency supplemental appropriations and other changes to law to help the Nation respond to the coronavirus emergency supplemental appropriations and other changes to law to help the Nation respond 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 Smiley v. Citibank, N.A, 517 U.S. 735, 740–41 (1996) (“We accord deference to agencies under Smiley v. Citibank, N.A, 517 U.S. 735, 740–41 (1996) (“We accord deference to agencies under Chevron . . . . . .
because of a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency, because of a presumption that Congress, when it left ambiguity in a statute meant for implementation by an agency,
understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than understood that the ambiguity would be resolved, first and foremost, by the agency, and desired the agency (rather than
the courts) to possess whatever degree of discretion the ambiguity allows.”). the courts) to possess whatever degree of discretion the ambiguity allows.”). See generally CRS In Focus IF10003, CRS In Focus IF10003, An
Overview of Federal Regulations and the 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. Those who apply the rule to particular cases, must of necessity expound and interpret department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret
that rule. If two laws conflict with each other, the courts must decide on the operation of each.”); that rule. If two laws conflict with each other, the courts must decide on the operation of each.”); see also Chevron, Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984) (“The judiciary is the final authority on issues U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984) (“The judiciary is the final authority on issues
of statutory construction and must reject administrative constructions which are contrary to clear congressional of statutory construction and must reject administrative constructions which are contrary to clear congressional
intent.”). intent.”).
73 73 See Kimble v. Marvel Entm’t, LLC, 576 U.S. 446, 456 (2015) (“[U]nlike in a constitutional case, critics of our ruling Kimble 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 Congress can correct any mistake it sees. That is true . . . regardless can take their objections across the street, and Congress can correct any mistake it sees. That is true . . . regardless
whether our decision focused only on statutory text or also relied . . . on the policies and purposes animating the law.” whether our decision focused 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
hedged in by rules. . . .”). hedged in by rules. . . .”).
75 75 See id. at xxvii (preface by Justice Antonin Scalia & Bryan A. Garner) (professing that “meaning” must be at xxvii (preface by Justice Antonin Scalia & Bryan A. Garner) (professing that “meaning” must be
determined by “convention” because “[n]either written words nor the sounds that the written words represent have any determined by “convention” because “[n]either written words nor the sounds 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 “the federal courts do not currently treat statutory , 120 YALE L.J. 1898, 1997 (2011) (contending that “the federal courts do not currently treat statutory
interpretation methodology as law but that it would be permissible, maybe even preferable, for them to do so”). The interpretation methodology as law but that it would be permissible, maybe even preferable, for them to do so”). The
process and methods of statutory interpretation are discussed in more detail in CRS Report R45153, process and methods of statutory interpretation are discussed in more detail in CRS Report R45153, Statutory
Interpretation: Theories, Tools, and Trends, by Valerie C. Brannon. , by Valerie 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 Middlesex Cty. Sewerage Auth. v. Nat’l Sea Middlesex Cty. Sewerage Auth. v. Nat’l Sea
Clammers Ass’n, 453 U.S. 1, 13 (1981) (“We look first, of course, to the statutory language . . . . Then we review the Clammers Ass’n, 453 U.S. 1, 13 (1981) (“We look first, of course, to the statutory language . . . . Then 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 York, 551 U.S. 193, 197 (2007) (“We begin, , Permanent Mission of India to the UN v. City of New York, 551 U.S. 193, 197 (2007) (“We begin,
as always, with the text of the statute.”); IRS v. WorldCom, Inc., 723 F.3d 346, 352 (2013) (“In interpreting any statute, as always, with the text of the statute.”); IRS v. WorldCom, Inc., 723 F.3d 346, 352 (2013) (“In interpreting any statute,
we start with its text, giving the language its ordinary meaning.” (internal citations omitted)). we start with its text, giving the language 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 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 generally expresses meaning, but are not ‘rules’ in the sense that they about the way Congress generally 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 & Lawrence Baum, , James J. Brudney & Lawrence Baum, Protean Statutory Interpretation in the Courts of Appeals, 58 WM. & , 58 WM. &
MARY L. REV. 681, 686 (2017) (examining “empirically whether circuit court judges embrace, or clash over, MARY L. REV. 681, 686 (2017) (examining “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
textualist and purposive resources in ways that are more pragmatic, and less dogmatic, than their Supreme Court textualist and purposive resources in ways that are more pragmatic, and less dogmatic, than their 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) (“Although certain interpretive tools and doctrines are fairly well established, CORNELL L. REV. 433, 435 (2012) (“Although certain interpretive tools and doctrines are fairly well established,
interpretive methodology displays significant diversity from judge to judge and from case to case, both in the Supreme interpretive methodology displays significant diversity from judge to judge 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. Corp. v. Lewis, 138 S. Ct. 1612, 1630 (2018) (“[T]he canon against reading conflicts into statutes , Epic Sys. Corp. v. Lewis, 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 more is a traditional tool of statutory construction and it, along with the other traditional canons we have discussed, 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 argued that the framers of the U.S. Constitution were well courts still recognize to the founding era, and some have argued that the framers of the U.S. Constitution were well
aware of these principles. aware of these principles. See, e.g., William N. Eskridge, Jr., , William N. Eskridge, 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 of the , 101 COLUM. L. REV. 990, 1057 (concluding, from his review 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, whose canons of statutory construction were libertarian and protective of common law rights”). Blackstone and Bacon, whose canons of statutory construction were libertarian and protective of common law rights”).
But legal scholars have also observed significant changes in the field of statutory interpretation since the founding. But legal scholars have also observed significant changes in the field of statutory interpretation since the founding. See,
e.g., Gluck, , Gluck, supra note 75, at 1988 (asserting that “the canons of interpretation as understood by the Founders . . . have note 75, at 1988 (asserting that “the canons of interpretation as understood by the Founders . . . have
not been frozen in time” and that the “Supreme Court continues . . . to generate new interpretive rules”). not been frozen in time” and that the “Supreme Court continues . . . to generate new interpretive rules”).
80 80 See, e.g., City of Chicago v. Fulton, 141 S. Ct. 585, 591 (2021) (rejecting a reading that would “render the central , 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. command” of a statutory section “largely superfluous”); Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S.
644, 669 (2007) (“[W]e have cautioned against reading a text in a way that makes part of it redundant.”). 644, 669 (2007) (“[W]e have cautioned against reading a text in a way that makes part of it redundant.”).
81 81 See CRS Report R45153, CRS Report R45153, Statutory Interpretation: Theories, Tools, and Trends, , supra note 75, at note 75, at 2528 (footnotes (footnotes
omitted). omitted).
82 82 See Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001) (“Specific canons ‘are often countered . . . by some Chickasaw Nation v. United States, 534 U.S. 84, 94 (2001) (“Specific canons ‘are often countered . . . by some
maxim pointing in a different direction.’” (citation omitted)); Landgraf v. Usi Film Prods., 511 U.S. 244, 263 (1994) maxim pointing in a different direction.’” (citation omitted)); Landgraf v. Usi Film 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”
because “many of the traditional canons have equal opposites”). because “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
include a list of terms or phrases followed by a limiting clause, we have typically applied an interpretive strategy called include a list of terms or phrases followed by a limiting clause, we have typically applied an interpretive strategy called
the ‘rule of the last antecedent.’ The rule provides that ‘a limiting clause or phrase . . . should ordinarily be read as the ‘rule of the last antecedent.’ The rule provides that ‘a limiting clause or phrase . . . should ordinarily be 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) (“[T]his Court has made clear that the last-antecedent rule does not generally apply to the and Breyer, JJ., dissenting) (“[T]his Court has made clear that the last-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.’ Then, the exact opposite is usually true: . . . the modifying phrase refers alike to each of the list’s terms.” (internal list.’ Then, the exact opposite is usually 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. 528, 546 (2015) (plurality opinion) (“Having used traditional tools of Yates v. United States, 574 U.S. 528, 546 (2015) (plurality opinion) (“Having used traditional tools of
statutory interpretation to examine markers of congressional intent within the Sarbanes-Oxley Act and § 1519 itself, we statutory interpretation to examine markers of congressional intent within the Sarbanes-Oxley Act and § 1519 itself, we
are persuaded that an aggressive interpretation of ‘tangible object’ must be rejected.”), are persuaded that an aggressive interpretation of ‘tangible object’ must be rejected.”), with id. at 563–64 (Kagan, at 563–64 (Kagan,
Scalia, Kennedy, and Thomas, JJ., dissenting) (“Getting nowhere with [the] surplusage [canon], the plurality switches Scalia, Kennedy, and Thomas, JJ., dissenting) (“Getting nowhere with [the] surplusage [canon], the plurality switches
canons, hoping that canons, hoping that noscitur a sociis and and ejusdem generis will save it. . . . According to the plurality, those Latin will save it. . . . According to the plurality, those Latin
maxims change the English meaning of ‘tangible object’ to only things, like records and documents, ‘used to record or maxims change the English meaning of ‘tangible object’ to only things, like records and documents, ‘used to record or
preserve information.’ But understood as this Court always has, the canons have no such transformative effect on the preserve information.’ But understood as this Court always has, the canons have no such transformative effect on the
workaday language Congress chose.” (internal citation omitted)). workaday language 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 well as the sources , as well 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” generally eschew looking beyond a law’s interpretive philosophy.85 For example, “textualists” generally 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 normally used—or how statute a “fair reading” based on how language and punctuation are normally 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 bill, such as publications,91 may affect how closely an agency or court examines certain parts of a bill, 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 bill sections and other organizing features of legislation This part of the report describes common bill 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 bill will include all the sections listed below, and some bills may present decisions.92 Not every bill will include all the sections listed below, and some bills may present
these sections in a different order.93 these sections in a different order.93

85 85 Compare Dig. Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 782 (2018) (Sotomayor & Breyer, JJ., concurring) (“I write Dig. Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 782 (2018) (Sotomayor & Breyer, JJ., concurring) (“I write
separately only to note my disagreement with the suggestion in my colleague’s concurrence that a Senate Report is not separately only to note my disagreement with the suggestion in my colleague’s 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 (Thomas, Alito, & at 783 (Thomas, Alito, &
Gorsuch, JJ., concurring in part and concurring in the judgment) (“Even assuming a majority of Congress read the Gorsuch, JJ., concurring in part and concurring in the judgment) (“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 Congress enacted rather than by what it intended.’” (citation omitted)). men, and are governed by what Congress 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 and ends with what the text says note 4, at 16 (“Textualism, in its purest form, begins and ends with what the text says
and fairly implies.”); CRS Report R45153, and fairly implies.”); CRS Report R45153, Statutory Interpretation: Theories, Tools, and Trends, , supra note 75, at note 75, at ~~13–~~
1514–16. .
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) (“This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the 1738 (2020) (“This Court normally interprets a statute in accord with the ordinary public meaning of its 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. Ct. 2191, 2196 (2019) (stating that the Court “normally read[s] the President.”); Rehaif v. United States, 139 S. Ct. 2191, 2196 (2019) (stating that the Court “normally read[s] the
statutory term ‘knowingly’ as applying to all the subsequently listed elements” of a crime as “a matter of ordinary statutory term ‘knowingly’ as applying to all the subsequently listed elements” of a crime as “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. Ct. 1843, 1848 (2016). 88 Simmons v. Himmelreich, 136 S. Ct. 1843, 1848 (2016).
89 89 See CRS Report R45153, CRS Report R45153, Statutory Interpretation: Theories, Tools, and Trends, , supra note 75, at note 75, at ~~11–13~~12–14. .
90 90 But see id. at at ~~16–18~~17–19 (discussing a possible “convergence of theories”). (discussing a possible “convergence of theories”).
91 See, e.g., id. at 10–20~~91 See, e.g., id. at 10–18; CRS Legal Sidebar LSB10305,~~ ~~The Feres Doctrine: Congress, the Courts, and Military~~
~~Servicemember Lawsuits Against the United States, by Kevin M. Lewis~~; CRS Legal Sidebar LSB10122, ; CRS Legal Sidebar LSB10122, No Overtime
for Auto Service Advisors after Court’s “Fair Reading” of the FLSA, by Jon O. Shimabukuro. , by Jon O. Shimabukuro.
92 The following resources informed the selection and ordering of bill sections in this report: (1) the “[g]eneral template 92 The following resources informed the selection and ordering of bill sections in this report: (1) 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 L. Strokoff, by Lawrence E. Filson and Sandra 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 manuals can be moderately helpful, but . . . the organization of a provisions recommended by some legislative drafting manuals can be moderately helpful, but . . . the organization of a
bill in real life is never quite that straightforward.” (internal cross-reference omitted)).bill 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 bill contains many elements to help identify the legislation and organize its substantive A typical bill contains many elements to help identify the legislation and organize its substantive
provisions. Some of these provisions, like the enacting clause, are required in every bill. Others, provisions. Some of these provisions, like the enacting clause, are required in every bill. 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
generally do not contain the bill’s legally operative language—that is, they do not, by themselves, generally do not contain the bill’s legally 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 for the resolution of a doubt” about a statute’s meaning.94 There are several “tools available for the resolution of a doubt” about a statute’s meaning.94 There are several
distinct introductory and organizational elements of a bill, discussed below. distinct introductory and organizational elements of a bill, discussed below.
Preliminary Identifiers
As shown i As shown in Figure 6, a typical bill introduced in the House or Senate begins by identifying: typical bill introduced in the House or Senate begins by identifying:
 the then-current session of Congress,  the then-current session of Congress,
 the bill number,95  the bill number,95
 the long title of the bill,96  the long title of the bill,96
 the house in which the bill was introduced,  the house in which the bill was introduced,
 the date of introduction,  the date of introduction,
 the bill’s sponsor and any cosponsors, and  the bill’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 bill progresses through This information helps to identify and track the legislation.97 If the bill 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 bill may be updated to reflect the houses (i.e., is enrolled), subsequent versions of the bill 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-Torres v. United States, 523 U.S. 224, 234 (1998) (noting that “the title of a statute and the heading Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998) (noting that “the title of a statute and the heading
of a section’ are ‘tools available for the resolution of a doubt’ about the meaning of a statute” (quoting Bd. of R.R. of a section’ are ‘tools available for the resolution of a doubt’ about the meaning of a statute” (quoting Bd. of R.R.
Trainmen v. Balt. & Ohio R.R., 331 U.S. 519, 528–29 (1947))); Trainmen v. Balt. & Ohio R.R., 331 U.S. 519, 528–29 (1947))); Bd. of R.R. Trainmen, 331 U.S. at 529 (“For , 331 U.S. at 529 (“For
interpretative purposes, [titles and headings] are of use only when they shed light on some ambiguous word or interpretative purposes, [titles and headings] are of use only when they shed light on some ambiguous word or
phrase. . . . [T]hey cannot undo or limit that which the text makes plain.”). phrase. . . . [T]hey cannot undo or limit that which the text makes plain.”).
95 The bill number is “typically the next number available in sequence during that two-year Congress.” CRS Report 95 The bill number is “typically the next number available in sequence during that two-year Congress.” CRS 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 “The Long Title.”
97 97 See, e.g., CONGRESS.GOV, https://www.congress.gov/ (last visited , CONGRESS.GOV, https://www.congress.gov/ (last visited ~~Sept. 27, 2021~~May 19, 2022) (allowing viewers to search for ) (allowing viewers to search for
legislation by session of Congress, bill number, sponsor, and committee). legislation by session of Congress, bill number, sponsor, and committee).
98 98 See, e.g., Correcting Miscalculations in Veterans’ Pensions Act, H.R. 4431, 115th Cong., https://www.congress.gov/, Correcting Miscalculations in Veterans’ Pensions Act, H.R. 4431, 115th Cong., https://www.congress.gov/
bill/115th-congress/house-bill/4431/text (allowing viewers to access 6 versions of the bill: the bill text as introduced, as bill/115th-congress/house-bill/4431/text (allowing viewers to access 6 versions of the bill: the bill text as introduced, as
reported in the House, as engrossed in the House, as referred in the Senate, as enrolled, and finally, as a public law). reported in the House, as engrossed in the House, as referred in the Senate, as enrolled, and finally, as a public 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 introduced, Apr. 19, 2018), Notification of Your Eldercare Rights Act, H.R. 5577, 115th Cong. (as introduced, 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 bill appears after the bill number and also immediately following The official or “long” title of a bill appears after the bill number and also immediately following
the prefatory words “A BILL” as shown inthe prefatory words “A BILL” as shown in Figure 7. The long title generally summarizes or The long title generally summarizes or
describes the purpose of the bill. However, as veteran legislative drafters have noted, describes the purpose of the bill. However, as veteran legislative drafters have noted,
“parliamentary maneuvering sometimes results in bills whose long titles bear little or no “parliamentary maneuvering sometimes results in bills 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 generally assign little weight to a federal law’s long title in interpreting a disputed Courts generally 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 bill is enacted.102 Another in the next section) and thus does not become part of the law even if the bill 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 bill contains the enacting clause, “Be it enacted by the Senate and House of Representatives Each bill 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.106 placement 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. Tarsadia Hotels, 816 F.3d 1170, 1187 (9th Cir. 2016) (“Defendants’ heavy reliance on the title , Beaver v. Tarsadia 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 Sales Full Disclosure Act to clarify how the Act applies of the 2014 Amendment, ‘An act to amend the Interstate Land Sales Full 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), coupled with the bill’s silence on the issue of retroactivity, enactment of the bill and the bill’s effective date (180 days), coupled with the bill’s silence on the issue of retroactivity,
suggests that this was actually a change in the law.”). suggests 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. 3d 536, 541 (S.D. Miss. 2018), 104 349 F. Supp. 3d 536, 541 (S.D. Miss. 2018), aff’d sub. nom. Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265, Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265,
277 (2019), 277 (2019), cert. granted, No. 19-1392 (May 17, 2021). , No. 19-1392 (May 17, 2021).
105 105 Id. (internal quotation marks omitted). (internal quotation marks omitted).
106 106 See 1 U.S.C. § 101 (“The enacting clause of all Acts of Congress shall be in the following form: ‘Be it enacted by 1 U.S.C. § 101 (“The enacting clause of all Acts of Congress shall be in the following form: ‘Be it enacted by
the Senate and House of Representatives of the United States of America in Congress assembled.’”); the Senate and House of Representatives of the United States of America in Congress assembled.’”); id. § 103 § 103
(prohibiting “enacting or resolving words” after the first section of the bill). (prohibiting “enacting or resolving words” after the first section of the bill).
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The enacting clause introduces the text that will become law and serves to identify the document The enacting clause introduces the text that will 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
legislation is a bill rather than a joint resolution, which contains a “resolving clause.”108 While the legislation is a bill 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.109 clause.109
Short Titles
Congressional drafters often include short titles for their bills, as in the example in Congressional drafters often include short titles for their bills, as in the example in Figure 9. If f
the bill is enacted, OLRC may assign the specified short title to a section in the the bill is enacted, OLRC may assign the specified short title to a section in the U.S. Code110 or 110 or
place it in the statutory notes following the text of a place it in the statutory notes following the text of a Code section.111 section.111
Figure 9. Short Title

Source: Fairness to Teaching Hospitals Act of 2016, H.R. 6515, 114th Cong. (as introduced, Dec. 8, 2016), Fairness to Teaching Hospitals Act of 2016, H.R. 6515, 114th Cong. (as introduced, Dec. 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.2d 8, 10 (Ga. 1967) Joiner v. State, 155 S.E.2d 8, 10 (Ga. 1967)
(“The purpose of an enacting clause is to establish the act; to give it permanence, uniformity and certainty; to afford (“The 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 inadvertence, evidence of its legislative, statutory nature, and to secure uniformity of identification, and thus prevent inadvertence,
possible mistake, and fraud.” (internal quotation marks omitted) (quoting 82 C.J.S. 104, § 65 (c 2))). possible mistake, and fraud.” (internal quotation marks omitted) (quoting 82 C.J.S. 104, § 65 (c 2))).
108 108 See 1 U.S.C. § 102 (prescribing a “resolving clause” for “all joint resolutions”). 1 U.S.C. § 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 laws contain an enacting clause”); United States v. Laroche, 170 F. App’x 124, 126 (11th does not require that federal laws contain an enacting clause”); United States v. Laroche, 170 F. App’x 124, 126 (11th
Cir. 2006) (per curiam) (stating that “[t]here is no federal authority to support [the petitioner’s] argument that a lack of Cir. 2006) (per curiam) (stating that “[t]here is no federal authority to support [the petitioner’s] argument that a lack of
an enacting clause renders a statute invalid”). an enacting clause renders a statute invalid”). But cf. Joiner, 155 S.E.2d at 10 (holding that a state legislative act was “a , 155 S.E.2d at 10 (holding that a state legislative act was “a
nullity and of no force and effect as law” because it did not contain an enacting clause and rejecting the view that an nullity and of no force and effect as law” because it did not contain an enacting clause and rejecting the view that an
enacting clause “is a mere matter of form, a relic of antiquity, and serves no useful purpose”). enacting clause “is a mere matter of form, a relic of antiquity, and serves no useful purpose”).
110 110 See, e.g., 15 U.S.C. § 78a (stating that the Act of June 6, 1934, Pub. L. No. 73-291, ch. 404, 48 Stat. 881, may be , 15 U.S.C. § 78a (stating that the Act of June 6, 1934, Pub. L. No. 73-291, ch. 404, 48 Stat. 881, may be
cited as the “Securities Exchange Act of 1934”). cited as the “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) is indicated in the statutory notes following 29 U.S.C. § 1001, the section containing the congressional ERISA) is indicated in the statutory notes following 29 U.S.C. § 1001, the section containing the congressional
findings and declaration of policy within the chapter on the Employee Retirement Income Security Program. findings and declaration of policy within the chapter on the Employee Retirement Income Security Program.
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Unlike a bill’s long title, a designated short title Unlike a bill’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 unlikely to describe all of the bill’s purposes. Drafters often select words long title, a short title is unlikely to describe all of the bill’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 alluded to Congress’s penchant for acronyms, referring to a law with “the unlikely title of Scalia alluded to Congress’s penchant for acronyms, referring to a law with “the unlikely title of
the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of the Prosecutorial Remedies and Other Tools to end the Exploitation 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 shall refer to it as the Act.”113 statute itself, Justice Scalia quipped, “We shall refer 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. Occasionally, however, a short supply the answer to a disputed issue of statutory interpretation. Occasionally, 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 called “captions”) to particular Congressional drafters may assign headings or subheadings (also called “captions”) to particular
divisions of a bill. Idivisions of a bill. In Figure 10, section 2 of the bill is entitled “Disclosure of Personal ection 2 of the bill is entitled “Disclosure of Personal
Information with the Intent to Cause Harm.” The new offense that the bill would add to Information with the Intent to Cause Harm.” The new offense that the bill would add to
chapter 41 of title 18 of the chapter 41 of title 18 of the U.S. Code is separately entitled “Publication of personally identifiable is separately entitled “Publication of personally 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. 285, 289 (2008). 112 United States v. Williams, 553 U.S. 285, 289 (2008).
113 113 Id.
114 Doe v. Boy Scouts of America, 224 P.3d 494, 498 (Idaho 2009). 114 Doe v. Boy Scouts 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 Because the heading assigned to § 881 is “inside the quotes,” this heading would likely become the section heading 116 Because the heading assigned to § 881 is “inside the quotes,” this heading would likely become the section heading
in the in the U.S. Code if the bill were enacted. if the bill were enacted. See Detailed Guide to the U.S. Code, , supra note 50 (noting that the “basic note 50 (noting that the “basic
unit of every Code title is the section,” that in positive law titles, unit of every Code title is the section,” that in positive law titles, Code sections have “the exact same text as in the sections have “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 on an act section that section “is based on an act section that
has headings, the Code will usually retain the original headings”). has headings, the Code will usually 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. 8, 2016), Interstate Doxxing Prevention Act, H.R. 6478, 114th Cong. § 2 (as introduced, Dec. 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 bill is enacted, headings and subheadings operate in the same way as titles: while Once a bill 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 dangerous to judge a book by its cover, it is dangerous to judge a statute by its title”). and stating that “[j]ust as it is dangerous to judge a book by its cover, it is dangerous to judge 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 did not apply to “preconfirmation transfers,” finding it “informative that Congress section of the Bankruptcy Code did not apply to “preconfirmation transfers,” finding it “informative that Congress
placed [that section] in a subchapter entitled, ‘POSTCONFIRMATION MATTERS’”). placed [that section] in a subchapter 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 § 2252(b)(2)’s recidivist Among the chapters of the Federal Criminal Code that can trigger § 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-abuse crimes under headings that use language nearly identical to the language sexual-abuse crimes under headings that use language nearly identical to the language
§ 2252(b)(2) uses to enumerate the three categories of state sexual-abuse predicates. The § 2252(b)(2) 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. The first section in Chapter 109A is titled “Aggravated sexual abuse.” 18 U.S.C. § 2241. 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, precisely the divisions, and nearly precisely the words used to describe the three 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 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 parallel, particularly because the headings in Chapter 109A were in place when “ignore the parallel, 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 bill’s substantive provisions with prefatory Congressional drafters sometimes introduce a bill’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
However, because these statements tend to describe the legislation’s general purposes, they may However, 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. § 2252(b)(2)). Lockhart v. United States, 136 S. Ct. 958, 961, 964 (2016) (quoting 18 U.S.C. § 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) (“The Court today, relying on what is called the ‘rule of at 969 (Kagan, J., dissenting) (“The Court today, relying on what is called the ‘rule of
the last antecedent,’ reads the phrase ‘involving a minor or ward’ as modifying only the final term in that three-item the last antecedent,’ reads the phrase ‘involving a minor or ward’ as modifying only the final term in that three-item
list. But properly read, the modifier applies to each of the terms . . . . That normal construction finds support in list. But properly read, the modifier applies to each of the terms . . . . That normal construction finds support in
uncommonly clear-cut legislative history, which states in so many words that the three predicate crimes all involve uncommonly clear-cut legislative history, which states in so many words that the three predicate crimes all involve
abuse of children. And if any doubt remained, the rule of lenity would command the same result. . . .”). abuse of children. And if any doubt remained, the rule of lenity would command 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 was not acting within its enumerated Commerce Clause power). of the Court’s holding that Congress was not acting within its enumerated Commerce Clause power). Cf. District of District of
Columbia v. Heller, 554 U.S.Columbia v. Heller, 554 U.S. 570,577 (2008) (noting that a “prefatory clause” in a constitutional provision may 570,577 (2008) (noting that a “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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not be persuasive evidence of another provision’s meaning to a textualist judge who prefers to 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 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 bill declaring Congress’s findings or goals for the legislation.126 Whereas clauses beginning of a bill 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
bill’s long title, or a bill’s findings and purposes section (discussed bill’s long title, or a bill’s findings and purposes section (discussed infra), as a preamble.128 ), as a preamble.128

125 125 See supra “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
clauses introduced by the conjunction clauses introduced by the conjunction whereas,” and that “[s]uch a preamble is sometimes called the ,” and that “[s]uch a preamble is sometimes called the whereas
clauses”). ”). See also, e.g., Bituminous Coal Conservation Act of 1935, Pub. L. No. 74-402, ch. 824, 49 Stat. 991, , Bituminous Coal Conservation Act of 1935, Pub. L. No. 74-402, 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 Based on a search of CONGRESS.GOV for bill text containing the word “whereas,” less than ten bills from the 112th to 127 Based 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 bills would have amended an existing preamble. the 116th Congress contained prefatory whereas clauses. Four related bills would have amended an existing preamble.
E.g., Lumbee Recognition Act, H.R. 184, 114th Cong. § 2 (as introduced, Jan. 7, 2015), https://www.congress.gov/114/, 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 included in a “Findings” or “Sense bills/hr184/BILLS-114hr184ih.pdf. Most of the remaining whereas statements were included in a “Findings” or “Sense
of Congress” section rather than a stand-alone preamble. of Congress” section rather than a stand-alone preamble. See, e.g.,, Black History is American History Act, H.R. 6902, Black History is American History Act, H.R. 6902,
116th Cong. § 2 (introduced May 15, 2020), https://www.congress.gov/116/bills/hr6902/BILLS-116hr6902ih.pdf.116th Cong. § 2 (introduced May 15, 2020), https://www.congress.gov/116/bills/hr6902/BILLS-116hr6902ih.pdf.
128 128 See, e.g., Cyan, Inc. v. Beaver Cnty. Empls. Ret. Fund, 138 S. Ct. 1061, 1064 (2018) (noting that the “preamble” to , Cyan, Inc. v. Beaver Cnty. Empls. Ret. Fund, 138 S. Ct. 1061, 1064 (2018) (noting that the “preamble” to
the Securities Litigation Uniform Standards Act of 1998 “states that the statute is designed ‘to limit the conduct of the Securities Litigation Uniform Standards Act of 1998 “states that the statute is designed ‘to limit the conduct of
securities class actions under State law, and for other purposes.’” (quoting Pub. L. No. 105-353, 112 Stat. 3227 securities class actions under State law, and for other purposes.’” (quoting Pub. L. No. 105-353, 112 Stat. 3227
(1998))); Tennessee v. Lane, 541 U.S. 509, 516 (2004) (referring to the findings and purposes section of the Americans (1998))); Tennessee v. Lane, 541 U.S. 509, 516 (2004) (referring to the findings and purposes section of the Americans
with Disabilities Act of 1990, 42 U.S.C. § 12101, as the statute’s “preamble”). with Disabilities Act of 1990, 42 U.S.C. § 12101, as the statute’s “preamble”).
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Figure 11. Preamble

Source: S.J.S.J. Res. 49, 115th Cong. (2017) (as enrol ed), https://www.congress.gov/115/bil s/sjres49/BILLS-Res. 49, 115th Cong. (2017) (as enrol ed), https://www.congress.gov/115/bil s/sjres49/BILLS-~~115~~
~~sjres49enr~~115sjres49enr.pdf. .pdf.
Preambles typically express nonbinding legislative findings and “value judgments.”129 As such, Preambles typically express nonbinding legislative 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., 492 U.S. 490, 504, 506 (1989) (reasoning that a state abortion statute’s Webster v. Reprod. Health Servs., 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 illegal overthrow of the Kingdom of Hawaii, to express its deep regret to the significance of the illegal overthrow of the Kingdom of Hawaii, to express its deep regret to the
Native Hawaiian people, and to support the reconciliation efforts of the State of Hawaii and the Native Hawaiian people, and to support the reconciliation efforts of the State of Hawaii and the
United Church of Christ with Native Hawaiians”—which the Court referred to as the “Apology United Church of Christ with Native Hawaiians”—which the Court referred to as the “Apology
Resolution.”131 The case involved a dispute over a parcel of land in Maui that Hawaii ceded to the Resolution.”131 The case involved a dispute over a parcel of land in Maui that Hawaii ceded to the
United States following the United States’s overthrow of the Hawaiian monarchy in 1893.132 United States following the United States’s overthrow of the Hawaiian monarchy in 1893.132
Upon Hawaii’s admission as a state in 1959, the federal government transferred title to the ceded Upon Hawaii’s admission as a state in 1959, the federal government transferred title to the ceded
lands back to Hawaii to be “held by [the] State as a public trust.”133 Hawaii state law lands back to Hawaii to be “held by [the] State as a public trust.”133 Hawaii state law
“authorize[d] the State to use or sell the ceded lands, provided that the proceeds [were] held in “authorize[d] the State to use or sell the ceded lands, provided that the proceeds [were] held in
trust for the benefit of the citizens of Hawaii.”134 Relying on the Apology Resolution, the Office trust for the benefit of the citizens of Hawaii.”134 Relying on the Apology Resolution, the Office
of Hawaiian Affairs sued in state court to prevent Hawaii from selling the disputed tract to a state of Hawaiian Affairs sued in state court to prevent Hawaii from selling the disputed tract to a state
agency for redevelopment.135 The Hawaii Supreme Court enjoined the sale, citing a series of agency for redevelopment.135 The Hawaii 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 Hawaiian people have unrelinquished claims over the ceded clearly recognized that the native Hawaiian 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 Hawaii’s history,” such as the clauses in which “Congress made various observations about Hawaii’s history,” such as the
statement that “‘the indigenous Hawaiian people never directly relinquished their claims . . . over statement that “‘the indigenous Hawaiian 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 being begins at conception,’ and that ‘[u]nborn children have preamble stating that “‘[t]he life of each human being begins at conception,’ and that ‘[u]nborn children have
protectable interests in life, health, and well-being’” did not “by its terms regulate abortion” and merely expressed the protectable interests in life, health, and well-being’” did not “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 used to interpret other state statutes or regulations” to the state courts to decide in the first instance (internal might be used 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 v. Office of Haw. Affairs, 556 U.S. 163, 175 (2009); 130 Hawaii v. Office of Haw. Affairs, 556 U.S. 163, 175 (2009); see also District of Columbia v. Heller, 554 U.S. 570, District of Columbia 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’ clauses in federal legislation or the Constitution’s indicates that it does not have operative effect, such as ‘whereas’ clauses in federal legislation or the Constitution’s
preamble, a court has no license to make it do what it was not designed to do”). preamble, a court has no license to make it do what it was not designed 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, Pub. L. No. 103-150, 107 Stat. 1513 Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, 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 the Court’s presumption against implied repeals). (discussing the Court’s presumption against implied repeals).
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Sense of Congress Provisions
Some bills contain a provision stating the “sense of Congress” about a particular topic addressed Some bills contain a provision stating the “sense of Congress” about a particular topic addressed
by the legislation (e.gby the legislation (e.g., Figure 12).140 140
Figure 12. Sense of Congress

Source: Developing Innovation and Growing the Internet of Things Act, S. 88, 115th Cong. § 2(b) (as referred in Developing Innovation and Growing the Internet of Things Act, S. 88, 115th Cong. § 2(b) (as referred 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 generally regard these provisions as “precatory” and “not amounting to positive, Courts generally 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 bills or nonbinding resolutions to Congress sometimes uses sense of Congress provisions in bills 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 or concurrent resolutions, which do not have the force of law, are often used to express the “sense of 140 Simple or concurrent resolutions, which do not have the force of law, are often used to express the “sense of
Congress” on a topic. Congress” on a topic. See, e.g., H. Res. 895, 116th Cong. (as introduced, Mar. 10, 2020), https://www.congress.gov/, H. Res. 895, 116th Cong. (as introduced, Mar. 10, 2020), https://www.congress.gov/
bill/116th-congress/house-resolution/895/ (“Recognizing National School Breakfast Week from March 2nd through bill/116th-congress/house-resolution/895/ (“Recognizing National School Breakfast Week from March 2nd through
March 6th, 2020, and expressing the sense of Congress that providing breakfast in schools through the National School 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.”). Breakfast Program has a positive impact on classroom performance.”). See supra “Report Terminology on Types of “Report Terminology on Types of
Federal Legislation.” Federal Legislation.”
141 Chong Yia Yang v. Cal. Dep’t of Soc. Servs., 183 F.3d 953, 955, 958–61 (9th Cir. 1999) (holding that sense of 141 Chong Yia Yang v. Cal. Dep’t of Soc. Servs., 183 F.3d 953, 955, 958–61 (9th Cir. 1999) (holding that sense of
Congress provision did not create an entitlement to welfare benefits for certain noncitizen veterans even though the Congress provision did not create an entitlement to welfare benefits for certain noncitizen veterans even though the
provision expressed Congress’s sense that such residents “provision expressed Congress’s sense that such residents “should be considered veterans for purposes of continuing be considered veterans for purposes of continuing
certain welfare benefits” because the act did not list such residents among its exceptions to the act’s welfare benefit certain welfare benefits” because the act did not list such residents among its exceptions to the act’s welfare benefit
restrictions and Congress later amended the act to reinstate benefits for certain refugees in this population at a later restrictions and Congress later amended the act to 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. 1992). 143 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 topic on which Zivotofsky v. Kerry, 576 U.S. 1, 14 (2015) (“Recognition [of a foreign sovereign] is a topic on which
the Nation must ‘speak . . . with one voice.’ That voice must be the President’s.” (internal citations omitted)); the Nation must ‘speak . . . with one voice.’ That 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 decisions that may determine (“It remains true, of course, that many decisions affecting foreign relations—including 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 allows Congress to speak with a unified voice,147 to bring attention to an course of action,146 it allows 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 For courts willing to look beyond the that the court does see as positive, enforceable law.149 For courts willing 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
legislation declaring the intent of an earlier statute is entitled to great weight in statutory legislation 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 totally unrelated to the highway program,” the court explained apportioned funds “for purposes totally 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 bills contain a “Declaration of Policy” or “Statement of Policy” section. This section may Some bills 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 Congress provision is usually framed in precatory terms, to the extent it uses mandatory 146 Although a sense of Congress provision is usually framed in precatory terms, to the extent it uses mandatory
language seeking to bind the President, the provision could raise separation-of-powers issues. language seeking to bind the President, the provision could raise separation-of-powers issues. Cf. Zivotofsky, 576 U.S. , 576 U.S.
at 30 (“If Congress may not pass a law, speaking in its own voice, that effects formal recognition [of a foreign at 30 (“If Congress may not pass a law, 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. at 80 (Scalia, J., dissenting) (arguing that the majority’s “perception that the Nation ‘must , 576 U.S. at 80 (Scalia, J., dissenting) (arguing 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
Congress in disputes involving foreign affairs”). Congress in disputes involving foreign affairs”).
148 148 See Thomas M. Franck & Clifford A. Bob, Thomas 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, “enable[s] the , 79 A.J.I.L. 912, 935 (1985) (stating that a sense of Congress resolution, though nonbinding, “enable[s] the
legislative branch to communicate its collective thinking on a particular subject” and to raise awareness of Congress’s legislative branch to communicate its collective thinking on a particular subject” and to raise awareness 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 guide to the discretion of the court in imposing the increased sentences for those offenses for which an increased a guide to the discretion of the court in imposing the increased sentences for those offenses for which an increased
penalty [was] authorized by the Act”). penalty [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 not , Doe v. Risch, 398 F. Supp. 3d 647, 657 (N.D. Cal. 2019) (reasoning that although Congress did not
mandate a particular timetable for processing the asylum application at issue, a sense of Congress provision that the mandate a particular timetable for processing the asylum application at issue, a sense of Congress provision that the
agency should adjudicate the application within 180 days cut in plaintiff’s favor on one factor in the court’s analysis of agency should adjudicate the application within 180 days cut in plaintiff’s favor on one factor in the court’s analysis of
whether the agency’s delay was reasonable). whether the agency’s delay was 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 language as a response to “what Congress believed to be an erroneous Cir. 2006) (interpreting sense of Congress language as a response to “what Congress believed to be an erroneous
judicial interpretation of a treaty,” and reasoning that it did “not in any way alter the plain text of the [statute’s] other judicial 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 Red Lion Broad. Co. v. FCC, 395 U.S. 367, 380–81 (1969). 151 Red Lion Broad. Co. v. FCC, 395 U.S. 367, 380–81 (1969).
152 State Highway Comm’n v. Volpe, 479 F.2d 1099, 1115 (8th Cir. 1973) (quoting 23 U.S.C. § 101(c)). 152 State Highway 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 Serv., Inc. v. Kreps, 566 F.2d 763, 765–66 (D.C. Cir. 1977) (referring to the declaration of , Sea-Land 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. Warren Co. v. Me. Bd. of Envt’l Prot., 547 U.S. 370, 386 (2006), S.D. Warren Co. v. Me. Bd. 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 Court’s interpretation of a certain statutory term); Citizens Against Casino Gambling Clean Water Act in support of the Court’s interpretation of a certain statutory term); Citizens Against Casino Gambling
v. Chaudhuri, 802 F.3d 267, 287–88 (2d Cir. 2015) (reasoning that the court’s narrow interpretation of an exception in v. Chaudhuri, 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 on a question of foreign policy, an example of which appears with legislation 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 will not, in and of itself, create third-as noted above, even an expressly stated policy position will 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 especially relevant in two, specific contexts. The first context involves statements may be especially 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 partial waiver of sovereign immunity to—that is, the United States has not does not extend its partial 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 Gaming Regulatory Act comported with “Congress’s intent to promote tribal interests through gaming” as the Indian Gaming Regulatory Act comported with “Congress’s intent to promote tribal interests through gaming” as
expressed through the act’s declaration of policy); Bd. of Educ. v. Leininger, 822 F. Supp. 516, 527 (N.D. Ill. 1992) expressed through the act’s declaration of policy); Bd. of Educ. v. Leininger, 822 F. Supp. 516, 527 (N.D. Ill. 1992)
(holding that the declaration of policy in the National School Lunch Act—“to safeguard the health and well-being of (holding that the declaration of policy in the National School Lunch Act—“to safeguard the health and well-being 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 assisting the States, through grants-in-aid and other means”—did not create enforceable rights for school food, by assisting 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 Aqua Harvesters, Inc. v. N.Y. State Dep’t of Aqua Harvesters, Inc. v. N.Y. State Dep’t of
Envtl. Conservation, 399 F. Supp. 3d 15, 40 (E.D.N.Y. 2019) (rejecting the plaintiffs’ dormant commerce clause Envtl. Conservation, 399 F. Supp. 3d 15, 40 (E.D.N.Y. 2019) (rejecting the plaintiffs’ dormant commerce clause
challenges to state commercial fishing laws because a federal law provided that “It is the policy of Congress that it is in challenges to state commercial fishing laws because a federal law 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 wildlife within its the public interest for each State to continue to regulate the taking for any purpose of fish and wildlife within its
boundaries” and that congressional silence “shall not be construed to impose any barrier” under the Commerce Clause boundaries” 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. Indian Cemetery Protective Ass’n, 485 U.S. 439, 454–55 (1988) (stating, with regard to a policy Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 454–55 (1988) (stating, with regard to a policy
statement in the American Indian Religious Freedom Act, that “[n]owhere in the law is there so much as a hint of any statement in the American Indian Religious Freedom Act, that “[n]owhere in the law is there so much as a hint of any
intent to create a cause of action or any judicially enforceable individual rights”); Greenberg v. Bush, 150 F. Supp. 2d intent to create a cause of action or any judicially enforceable individual rights”); Greenberg v. Bush, 150 F. Supp. 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 “favors , that the United States “favors
the establishment in Palestine of a national home for the Jewish people” did not “set forth a legislative scheme” from the establishment in Palestine of a national home for the Jewish people” did not “set forth a legislative scheme” from
which to infer a private right of action).which to infer a private right of action).
157 157 See generally CRS Report R45732, CRS 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 all modes of transportation subject of the Congress to provide for fair and impartial regulation of all 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:
“All of the provisions of this Act shall be administered and enforced with a view to carrying out “All of the provisions of this Act shall 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 will be measured.”165 The Court reasoned that although the Commission Commission’s actions will 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 “shall be administered and enforced” in that policy statement.167 A to the mandatory language “shall 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 normally a prefatory statement about the goals or purpose of the legislation—policy—which is normally 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 allocation amendments to the declaration of policy section of the Federal Aviation Act altered the 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). 158 28 U.S.C. § 2680(a).
159 159 See CRS Report R45732, CRS Report R45732, The Federal Tort Claims Act (FTCA): A Legal Overview, , supra note 157, at 19. note 157, at 19.
160 160 See Wiggins v. United States, 799 F.2d 962, 964 (5th Cir. 1986) (explaining that although the “Suits in Admiralty Wiggins v. United States, 799 F.2d 962, 964 (5th Cir. 1986) (explaining that although the “Suits in Admiralty
Act, passed in 1920, does not contain a specific exception of the discretionary acts of government employees from Act, passed in 1920, does not contain a specific exception of the discretionary acts of government employees from
coverage as does the later enacted Federal Tort Claims Act,” all but one federal circuit to consider the question had coverage as does the later enacted Federal Tort Claims Act,” all but one federal circuit to consider the question had
“implied a discretionary exception comparable to the exception in the [FTCA]”). “implied a discretionary exception comparable to the exception in the [FTCA]”).
161 161 See Baldassaro v. United States, 64 F.3d 206, 211–12 (5th Cir. 1995)Baldassaro 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 adequate merchant marine composed of the best-equipped, safest, and most suitable vessels” was necessary for and adequate merchant marine composed of the best-equipped, safest, and most suitable vessels” was necessary for
national security demonstrated that even discrete design decisions for vessels covered by the act “involve the weighing national security demonstrated that even discrete design decisions for vessels covered by the act “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 Act of 1940, Pub. L. No. 76-785, 54 Stat. 898, 899. 162 Transportation 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 Act” (footnote that it is to govern the Commission in the administration and enforcement of all provisions of the Act” (footnote
omitted)). omitted)). See also infra ““Shall” Versus “May”.”
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. 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.
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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
allocation of responsibility” between the FAA and the CAB, the framing of the declaration made allocation 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 more significant than its label as a “declaration.” likely more significant than its label as a “declaration.”
Statements of Purpose
Congressional drafters may indicate the purpose of a particular bill in a separate section of the bill Congressional drafters may indicate the purpose of a particular bill in a separate section of the 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 legislation follows a subsection on findings. the legislation follows a subsection on findings.
Figure 14. Purpose

Source: Economic Freedom and Financial Security for Working People Act of 2018, H.R. 5630, 115th Cong. Economic Freedom and Financial Security for Working 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 bill should be read expansively or narrowly.171 For determine whether other language in the bill 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/STATUTE-92/pdf/STATUTE-92-Pg1705.pdf (emphasis added). content/pkg/STATUTE-92/pdf/STATUTE-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) “so broadly” as to “defeat the purposes statutory term in § 230(f) of the Communications Decency Act of 1996 (CDA) “so broadly” as to “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, 660 F.2d 23, legislation broadly “so as to effectuate the state[d] purposes of [those laws]”); United States v. Angelilli, 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, 551 U.S. 47, 61–63 (2007) (internal quotation marks omitted) (quoting 15 U.S.C. 172 Safeco Ins. Co. of Am. v. Burr, 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 legislative record such as a conference or committee report on may document these findings in a legislative record such as a conference or committee report on
the bill, or it may include its findings in the bill text itself.174 When included in a bill, the findings the bill, or it may include its findings in the bill text itself.174 When included in a bill, the findings
may appear in a separate bill section (e.gmay appear in a separate bill section (e.g.,., Figure 15) or alongside statements of purpose. or alongside statements of purpose.
Figure 15. Findings

Source: Innocent Sellers Fairness Act, H.R. 1118, 115th Cong. § 2 (as introduced, Feb. 16, 2017), Innocent Sellers Fairness 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 generally do not have independent legal effect or Like other prefatory text, congressional findings generally do not have independent legal effect or
“override the plain meaning of specific provisions”“override the plain meaning of specific provisions”~~175~~—regardless of whether they are included in —regardless of whether they are included in
the bill itself or in the legislative record.175 Nevertheless, two considerations may weigh in favor
173 173 Id. at 62; at 62; see also Sturgeon v. Frost, 139 S. Ct. 1066, 1083 (2019) (declining to adopt an agency’s construction of an Sturgeon v. Frost, 139 S. Ct. 1066, 1083 (2019) (declining to adopt an agency’s construction of an
act’s provision that, in the Court’s view, was not only unsupported by the statutory text but also “would undermine [the act’s provision that, in the Court’s view, was not only unsupported by the statutory text but also “would undermine [the
act’s] grand bargain” as reflected in “its statement of purpose”). act’s] grand bargain” 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. Surface Mining & to identify Congress’s purpose in enacting the Federal Advisory Committee Act); Hodel v. Va. Surface Mining &
Reclamation Ass’n, 452 U.S. 264, 277 (1981) (referring to “Congress’ express findings, set out in the [Surface Mining Reclamation Ass’n, 452 U.S. 264, 277 (1981) (referring to “Congress’ express findings, set out in the [Surface 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’s general 175 Reeves v. Astrue, 526 F.3d 732, 737 (11th Cir. 2008) (stating that the court “cannot use Congress’s 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 in Reeves
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~~the bill itself or in the legislative record.176 But legislative~~ Congressional Research Service 32 Understanding Federal Legislation of including findings in the bill itself in some circumstances. First, when Congress includes findings in the bill text itself, they become part of the statute once the bill is enacted and may be codified in the U.S. Code or included in the statutory notes.176 Second, if a court is willing 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 that appear in the legislative history, because both houses of Congress passed them.177 Whether included in the statutory text or as part of the legislative record, congressional findings can influence a court’s findings can influence a court’s
perception of Congress’s intended meaning when weighing competing interpretations of perception of Congress’s intended meaning when weighing competing interpretations of ~~other~~
~~provisions.177~~a disputed provision.178 Detailed findings may also spell out Congress’s reasons for intervening in an area Detailed findings may also spell 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.discussed below.~~178~~179 In such situations, judicial deference to formal congressional findings may 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 challenged law.determinations in scrutinizing the challenged law.~~179~~180
A court may look to congressional findings to evaluate whether a law falls within Congress’s A court may look to congressional findings to evaluate whether a law falls 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.Commerce Clause.~~180~~181 The Supreme Court has interpreted that Clause to empower Congress to 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.state commerce.~~181~~182 On occasion, the Court has concluded that Congress exceeded its 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.”“based solely on [the activity’s] aggregate effect on interstate commerce.”~~182~~183 In one such Ratliff, 560 U.S. 586, 589–91 (2010) (resolving a circuit split involving the same statutory question at issue in Reeves consistently with the Eleventh Circuit’s interpretation). 176 E.g., 29 U.S.C. § 701(a); 16 U.S.C. § 668dd note. 177 ~~In one such~~
~~decision, United States v. Morrison, the Supreme Court made two observations about~~
~~congressional findings that demonstrate their relevance in “substantial effect[s]” cases.183 First,~~
~~the Court noted that “[w]hile Congress normally is not required to make formal findings as to the~~
~~substantial burdens that an activity has on interstate commerce, the existence of such findings~~
~~may enable [the Court] to evaluate the legislative judgment that the activity in question~~
~~substantially affects interstate commerce, even though no such substantial effect [is] visible to the~~

~~consistently with the Eleventh Circuit’s interpretation).~~
~~176 Two considerations may weigh in favor of including findings in the bill itself in some circumstances. First, when~~
~~Congress includes findings in the bill text itself, they become part of the statute once the bill is enacted and may be~~
~~codified in the U.S. Code or included in the statutory notes. Second, if a court is willing 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~~
~~that appear in the legislative history because both houses of Congress passed them.~~ See City of Columbus v. Ours City of Columbus v. Ours
Garage & Wrecker Serv., 536 U.S. 424, 440 (2002) (describing a finding that Congress included “in the Act itself” as Garage & Wrecker Serv., 536 U.S. 424, 440 (2002) (describing a finding that Congress included “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~~; Jarrod Shobe, Enacted Legislative Findings and Purpose, 86 U. CHI. L. REV. 669, 677 (2019) (positing that “[e]nacted findings and purposes should be places where textualism and purposivism have common ground”). 178 For example, in 2002, the Supreme Court unanimously interpreted the definition of “disability” in the Americans For example, in 2002, the Supreme Court unanimously interpreted the definition of “disability” in the Americans
with Disabilities Act (ADA) to “create a demanding standard for qualifying as disabled.” Toyota Motor Mfg., Ky. v. with Disabilities Act (ADA) to “create a demanding standard for qualifying as disabled.” Toyota Motor Mfg., Ky. v.
Williams, 534 U.S. 184, 197 (2002). Beyond “the words of the disability definition itself,” the Court found support for Williams, 534 U.S. 184, 197 (2002). Beyond “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’” that Congress cited “would surely have been much higher” had Congress intended “everyone with a disabilities’” that Congress cited “would surely have been much higher” had Congress intended “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~~ 179 See Gonzales v. Raich, 545 U.S. 1, 20 (2005) (“Findings in the introductory sections of the [Controlled Substances Gonzales v. Raich, 545 U.S. 1, 20 (2005) (“Findings in the introductory sections of the [Controlled Substances
Act (CSA)] explain why Congress deemed it appropriate to encompass local activities within the scope of the CSA.”). Act (CSA)] explain why Congress deemed it appropriate to encompass local activities within the scope of the CSA.”).
~~179~~180 See Hodel, 452 U.S. at 276–77 (“Judicial review in this area is influenced above all by the fact that the Commerce , 452 U.S. at 276–77 (“Judicial review in this area is influenced above all by the fact that the Commerce
Clause is a grant of plenary authority to Congress. . . . Here, the District Court properly deferred to Congress’ Clause is 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 interstate commerce.”). express findings, set out in the Act itself, about the effects of surface coal mining on interstate commerce.”).
~~180~~181 U.S. CONST. art. I, sec. 8, cl. 3 U.S. CONST. art. I, sec. 8, cl. 3.
~~181~~; see generally Power to Regulate Commerce, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/article-1/section-8/clause-3/. 182 United States v. Darby, 312 U.S. 100, 119–20 (1941). 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 “three broad categories of activity that Congress may regulate under its commerce power”: (1995) (setting forth the “three broad categories of activity that Congress may regulate under its commerce power”:
(1) “the use of the channels of interstate commerce”; (2) “the instrumentalities of interstate commerce, or persons or (1) “the use of the channels of interstate commerce”; (2) “the instrumentalities of interstate commerce, or persons or
things in interstate commerce”; and (3) “those activities that substantially affect interstate commerce”). things in interstate commerce”; and (3) “those activities that substantially affect interstate commerce”).
~~182~~183 United States v. Morrison, 529 U.S. 598, 617 (2000); 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
distinguish “between what is truly national and what is truly local”). distinguish “between what is truly national and what is truly local”).
~~183 Morrison, 529 U.S. at 612–14.~~
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decision, United States v. Morrison, the Supreme Court made two observations about congressional findings that demonstrate their relevance in “substantial effect[s]” cases.184 First, the Court noted that “[w]hile Congress normally is not required to make formal findings as to the substantial burdens that an activity has on interstate commerce, the existence of such findings may enable [the Court] to evaluate the legislative judgment that the activity in question substantially affects interstate commerce, even though no such substantial effect [is] visible to the naked eye.”185~~naked eye.”184~~ Second, the Court cautioned that “the existence of congressional findings is not Second, the Court cautioned that “the existence of congressional findings is not
sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation.”sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation.”~~185~~186
Morrison involved a provision in the Violence Against Women Act of 1994 (VAWA) that created involved a provision in the Violence Against Women Act of 1994 (VAWA) that created
a cause of action for victims of gender-motivated violence.a cause of action for victims of gender-motivated violence.~~186~~187 The Court observed that VAWA was 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.”on victims and their families.”~~187~~188 However, the Court found the relationship between gender- However, the Court found the relationship between gender-
motivated violence—itself “noneconomic” conduct—and interstate commerce too attenuated, motivated violence—itself “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 allow such regulation would “completely obliterate the interstate commerce because to allow such regulation would “completely obliterate the
Constitution’s distinction between national and local authority.”Constitution’s distinction between national and local authority.”~~188~~189
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 challenges. The first area involves Congress’s findings may come into play in constitutional challenges. 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.”“appropriate legislation.”~~189~~190 For example, Section 5 of the Fourteenth Amendment grants For example, Section 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,the states,~~190~~191 but that legislation must be appropriately limited to remedy or deter state violations but that legislation must be appropriately limited to remedy or deter state violations
of these constitutional rights.of these constitutional rights.~~191~~192 The Supreme Court has said that “[s]trong measures appropriate The Supreme Court has said that “[s]trong measures appropriate
to address one harm may be an unwarranted response to another, lesser one.”to address one harm may be an unwarranted response to another, lesser one.”~~192~~193 While courts While courts
generally defer to Congress’s judgment about what types of measures are required, they may generally defer to Congress’s judgment about what types of measures are required, they may
examine legislative findings to determine whether Congress has, in fact, found a “pattern or examine legislative findings to determine whether Congress has, in fact, found a “pattern or
practice of unconstitutional [state] conduct” to support the legislation.practice of unconstitutional [state] conduct” to support the legislation.~~193 Second, in a First~~
~~Amendment free speech challenge, a court may examine legislative findings to determine~~

~~184~~194 Second, in a First 184 Morrison, 529 U.S. at 612–14. 185 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. 241, 252 (1964) (“While the Act as adopted carried no congressional findings[,] the record of its passage through U.S. 241, 252 (1964) (“While the Act as adopted carried no congressional findings[,] the record of its passage through
each house is replete with evidence of the burdens that discrimination by race or color places upon interstate each house is replete with evidence of the burdens that discrimination by race or color places upon interstate
commerce. . . . [T]he voluminous testimony presents overwhelming evidence that discrimination by hotels and motels commerce. . . . [T]he voluminous testimony presents overwhelming evidence that discrimination by hotels and motels
impedes interstate travel.”). impedes interstate travel.”).
~~185~~186 Morrison, 529 U.S. at 614; , 529 U.S. at 614; see also Charles Tiefer,Charles Tiefer, After MorrisonMorrison, Can Congress Preserve Environmental Laws
from Commerce Clause Challenge?, 30 ENVTL. L. REP. 10888, 10888 (2000) (positing that after the , 30 ENVTL. L. REP. 10888, 10888 (2000) (positing that after the Morrison decision decision
“congressional findings are no longer a magical panacea” for attenuated links to interstate commerce, but offering “congressional findings are no longer a magical panacea” for attenuated links to interstate commerce, but offering
reasons why congressional findings can still play a role in justifying environmental regulations). reasons why congressional findings can still play a role in justifying environmental regulations).
~~186~~187 Morrison, 529 U.S. at 605. , 529 U.S. at 605.
~~187~~188 Id. at 614. at 614.
~~188~~189 Id. at 615–17. at 615–17.
~~189~~190 See U.S. CONST. amend. XIII, § 2; U.S. CONST. amend. XIII, § 2; id. amend. XIV, § 5; amend. XIV, § 5; id. amend. XV, § 2; amend. XV, § 2; see generally CRS Report R45323, CRS Report R45323,
Federalism-Based Limitations on Congressional Power: An Overview 14–20, coordinated by Andrew Nolan and Kevin 14–20, coordinated by Andrew Nolan and Kevin
M. Lewis. M. Lewis.
~~190~~191 U.S. CONST. amend. XIV, § 5 U.S. CONST. amend. XIV, § 5.
~~191~~; see generally Fourteenth Amendment: Enforcement, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/amendment-14/section-5/. 192 City of Boerne v. Flores, 521 U.S. 507, 530 (1997). City of Boerne v. Flores, 521 U.S. 507, 530 (1997).
~~192~~193 Id.
~~193~~194 Id. at 534; at 534; see also Shelby Cty. v. Holder, 570 U.S. 529, 553–54 (2013) (holding that Congress exceeded its powers Shelby Cty. v. Holder, 570 U.S. 529, 553–54 (2013) (holding that Congress exceeded its powers
under the Fifteenth Amendment in reauthorizing the coverage formula in the Voting Rights Act in 2006, reasoning that under the Fifteenth Amendment in reauthorizing the coverage formula in the Voting Rights Act in 2006, reasoning that
~~“Congress did not use the record it compiled to shape a coverage formula grounded in current conditions,” but “instead~~
~~reenacted a formula based on 40-year-old facts having no logical relation to the present day”); Bd. of Trs. v. Garrett,~~
~~531 U.S. 356, 372 (2001) (stating that “Congress’ failure to mention States in its legislative findings addressing~~
~~discrimination in employment” in the Americans with Disabilities Act (ADA) “reflects that body’s judgment that no~~
~~pattern of unconstitutional state action had been documented”); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000)~~
~~(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”).~~
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Amendment free speech challenge, a court may examine legislative findings to determine 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.regulation of protected speech may not be based on speculative harms.~~194 And third~~195 Third, in a due , in a due
process challenge to an abortion regulation, a court may independently review legislative findings process challenge to an abortion regulation, a court may independently review legislative findings
to assess whether the law runs afoul of the Court’s undue burden standard.to assess whether the law runs afoul of the Court’s undue burden standard.~~195~~196
In sum, while formal legislative findings are not required, a court may refer to congressional In sum, while formal legislative findings are not required, a court may refer to congressional
findings in a bill or in the legislative history in evaluating the constitutionality of a law but may findings in a bill or in the legislative history in evaluating the constitutionality of a law but may
reach a different conclusion than the enacting Congress about whether the findings actually reach a different conclusion than the enacting Congress about whether the findings actually
support the law’s constitutionality. support the law’s constitutionality.
Definitions
Among the most important features of a bill are the terms that it defines or does not define.Among the most important features of a bill are the terms that it defines or does not define.~~196~~197
Congressional drafters generally organize defined terms in a section or subsection of the bill Congressional drafters generally organize defined terms in a section or subsection of the bill
called “Definitions,” as icalled “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.first appear, or each time that they appear, in the proposed law.~~197~~198 For bills that contain For bills that contain
freestanding provisions as opposed to amendments to existing law, definitions sections typically freestanding provisions as opposed to amendments to existing law, definitions sections typically
appear in the first few sections of the bill (e.g., following short titles or general statements of appear in the first few sections of the bill (e.g., following short titles or general statements of
purpose or intent) or toward the end of the bill (e.g., before any effective date).purpose or intent) or toward the end of the bill (e.g., before any effective date).~~198~~199 Language Language
preceding the definitions typically shows where those definitions apply: for example, stating if preceding the definitions typically 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 bill is not defined in defined terms appear in the act. Importantly, if a term used in an amendatory bill is not defined in
that bill, it may still be defined in the statute that the bill is amending.that bill, it may still be defined in the statute that the bill is amending.~~199~~200

~~194~~“Congress did not use the record it compiled to shape a coverage formula grounded in current conditions,” but “instead reenacted a formula based on 40-year-old facts having no logical relation to the present day”); Bd. of Trs. v. Garrett, 531 U.S. 356, 372 (2001) (stating that “Congress’ failure to mention States in its legislative findings addressing discrimination in employment” in the Americans with Disabilities Act (ADA) “reflects that body’s judgment that no pattern of unconstitutional state action had been documented”); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91 (2000) (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”). 195 See, e.g., Ashcroft v. Free Speech Coal., 535 U.S. 234, 257 (2002) (“While the legislative findings address at length , Ashcroft v. Free Speech Coal., 535 U.S. 234, 257 (2002) (“While the legislative findings address 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. Gonzales v. Raich, 545 U.S. 1, 21 (2005) (“[W]e have never required Congress to make Gonzales v. Raich, 545 U.S. 1, 21 (2005) (“[W]e have never required Congress to make
particularized findings in order to legislate, absent a special concern such as the protection of free speech.” (citing particularized findings in order to legislate, absent a special concern such as the protection of free speech.” (citing
Turner Broad. Sys. v. FCC, 512 U.S. 622, 664–68 (1994) (plurality opinion)) (other internal citations omitted); Turner Broad. Sys. v. FCC, 512 U.S. 622, 664–68 (1994) (plurality opinion)) (other internal citations omitted); Turner
Broad. Sys., 512 U.S. at 664 (stating that “[w]hen the Government defends a regulation on speech as a means to redress , 512 U.S. at 664 (stating that “[w]hen the Government defends a regulation on speech as a means to redress
past harms or prevent anticipated harms,” it must “demonstrate that the recited harms are real, not merely conjectural, past harms or prevent anticipated harms,” it must “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~~196 See June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2112 (2020) (plurality opinion) (stating that courts must June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2112 (2020) (plurality opinion) (stating that courts must
“independently . . . review the legislative findings upon which an abortion-related statute rests”) (citing Whole “independently . . . review the legislative findings upon which 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~~197 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~~198 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
should be listed in a single section). should be listed in a single section).
~~198~~199 Compare HOLC Guide to Legislative Drafting, , supra note 18 (placing definitions after general and special rules but note 18 (placing definitions after general and special rules 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’s 1997 manual to place definitions after the findings and purposes section in single-subject legislation). Counsel’s 1997 manual to place definitions after the findings and purposes section in single-subject legislation).
~~199~~200 See, e.g., 5 U.S.C. § 105 (defining “executive agency” for purposes of the entire title, 5 U.S.C. §§ 101 et seq.). , 5 U.S.C. § 105 (defining “executive agency” for purposes of the entire title, 5 U.S.C. §§ 101 et seq.).
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Figure 16. Definitions Subsection

Source: Financial Services Industry Stability Act of 2010, H.R. 4516, 111th Cong., § 1(b) (as introduced, Jan. 26, Financial Services 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 bill has a definitions section, the terms defined in the bill carry that meaning unless When the bill has a definitions section, the terms defined in the bill carry that meaning unless
otherwise noted. This is because when a court is interpreting a federal statute, it generally gives otherwise noted. This is because when a court is interpreting a federal statute, it generally 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.or customary meanings in every day speech.~~200~~201 For example, For example, Digital Realty Trust, Inc. v. Somers
concerned the meaning of the term “whistleblower” in the Dodd-Frank Act, and specifically, concerned the meaning of the term “whistleblower” in the Dodd-Frank Act, and 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 retaliation claim under the act.to the SEC, could bring a retaliation claim under the act.~~201~~202 The law defined “whistleblower” as The law defined “whistleblower” as
an individual who provides “information relating to a violation of the securities laws an individual who provides “information relating to a violation of the securities laws to the
Commission,” (i.e., to the SEC).,” (i.e., to the SEC).~~202 But another~~203 Another provision prohibited retaliation against a 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.” among other laws.~~203~~204 The court of appeals declined to apply the 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.provision.~~204~~205 Instead, it concluded that the statute protected an employee who made covered Instead, it concluded that the statute protected an employee who made covered
~~disclosures to either his employer or to the SEC, because Sarbanes-Oxley required internal~~
~~reporting before SEC reporting and because a whistleblower was “not likely to report in both~~

~~200~~ 201 See Burgess v. United States, 553 U.S. 124, 129–30 (2008) (“‘Statutory definitions control the meaning of statutory Burgess v. United States, 553 U.S. 124, 129–30 (2008) (“‘Statutory definitions control the meaning of statutory
words . . . in the usual case.’” (quoting Lawson v. Suwannee Fruit & S.S. Co., 336 U.S. 198, 201 (1949)))words . . . in the usual case.’” (quoting Lawson v. Suwannee Fruit & S.S. Co., 336 U.S. 198, 201 (1949))).
~~201~~; e.g., Tanzin v. Tanvir, 141 S. Ct. 486, 490 (2020) (rejecting the “otherwise plausible argument” that the word “government” did not include employees sued in their individual capacities because “Congress supplanted the ordinary meaning of ‘government’ with a different, express definition” that included persons invested with an office or “acting under color of law”). 202 138 S. Ct. 767, 776 (2018) (analyzing the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 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~~203 Id. at 774 (internal quotation marks omitted) (emphasis in at 774 (internal quotation marks omitted) (emphasis in Digital Realty) (quoting 15 U.S.C. § 78u-6(a)(6)). ) (quoting 15 U.S.C. § 78u-6(a)(6)).
~~203~~204 15 U.S.C. 15 U.S.C. § 78u-6(h)(1)(A) (emphasis added). § 78u-6(h)(1)(A) (emphasis added).
~~204~~205 Somers v. Digit. Realty Tr., Inc., 850 F.3d 1045, 1049–50 (9th Cir. 2017), Somers v. Digit. Realty Tr., Inc., 850 F.3d 1045, 1049–50 (9th Cir. 2017), rev’d, 138 S. Ct. 767. , 138 S. Ct. 767.
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~~ways.”205 But the Supreme Court reversed,~~ disclosures to either his employer or to the SEC, because Sarbanes-Oxley required internal reporting before SEC reporting and because a whistleblower was “not likely to report in both ways.”206 The Supreme Court reversed, however, stating that “‘[w]hen a statute includes an explicit 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.”definition, we must follow that definition,’ even if it varies from a term’s ordinary meaning.”~~206~~207 It 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
limitation of the anti-retaliation remedy to “whistleblowers” meant that “an individual who falls limitation of the anti-retaliation remedy to “whistleblowers” meant that “an individual who falls
outside [of that definition] is ineligible to seek redress . . . regardless of the conduct in which that outside [of that definition] is ineligible to seek redress . . . regardless of the conduct in which that
individual engages.”individual engages.”~~207~~208 In other words, “[c]ourts are not at liberty to dispense with” the specific In other words, “[c]ourts are not at liberty to dispense with” the specific
meaning Congress assigned to the term.meaning Congress assigned to the term.~~208~~209
When the Bill Does Not Define a Term Used in the Bill
If a term used in a bill is not defined in that bill, the term may nevertheless be defined in the If a term used in a bill is not defined in that bill, the term may nevertheless be defined in the
underlying statute that the bill is amending. If an existing statutory definition applies to the underlying statute that the bill is amending. If an existing statutory definition applies to the
division that the bill is adding or amending, then that definition likely supplies the meaning of the division that the bill is adding or amending, then that definition likely supplies the meaning of the
term as used in the bill. For example, 5 U.S.C. § 551 defines terms like “agency” and “rule” term as used in the bill. 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).Administrative Procedure Act (APA).~~209~~210 If a bill used these terms in an amendment to the APA, If a bill used these terms in an amendment to the APA,
their § 551 definitions would apply unless the bill specified otherwise. Likewise, because the APA their § 551 definitions would apply unless the bill 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 bill’s APA amendment as well.would presumptively apply to the bill’s APA amendment as well.~~210~~211
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.15 U.S.C. § 78u-6—as the contested whistleblower retaliation provision.~~211~~212 For the Court, it did 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 explicit definition, because the section’s text left “no doubt as to the a broader meaning than the explicit definition, because the section’s text left “no doubt as to the
definition’s reach” by “instruct[ing] that the ‘definitio[n] shall apply’ ‘[i]n this section,’ that is, definition’s reach” by “instruct[ing] that the ‘definitio[n] shall apply’ ‘[i]n this section,’ that is,
throughout § 78u-6.”throughout § 78u-6.”~~212~~213
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 explicit limitation on where a definition applies (e.g., to a particular section or subdivision) any explicit limitation 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.Code to a provision in § 956 of the Code.~~213~~214 The court reasoned that “[i]n its first sentence, § 581 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~~
~~court’s view, it was “clear” from that restriction that “Congress was not providing a general~~

205 Id.
~~206~~ 206 Id. 207 Digit. Realty Tr., Inc., 138 S. Ct. at 776–77 (quoting Burgess v. United States, 553 U.S. 124, 130 (2008)). , 138 S. Ct. at 776–77 (quoting Burgess v. United States, 553 U.S. 124, 130 (2008)).
~~207~~208 Id. at 777. at 777.
~~208~~209 Id.
~~209~~210 5 U.S.C. § 551 (emphasis added); 5 U.S.C. § 551 (emphasis added); see generally Nat’l Archives & Records Admin., Nat’l Archives & Records Admin., Federal Register:
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~~211 5 U.S.C. § 103 (emphasis added); 5 U.S.C. § 103 (emphasis added); see also Off. of Law Revision Counsel, Off. of Law Revision Counsel, United States Code: 5 U.S.C. § 103, ,
https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section103&num=0&edition=prelim~~uscode.house.gov~~ (last visited (last visited ~~July 30, 2020~~May 19, 2022) (stating in the “Historical and ) (stating in the “Historical and ~~Revisions~~Revision Notes” for this section that § 103 Notes” for this section that § 103
was “supplied to avoid the necessity for defining ‘Government corporation’ and ‘Government controlled corporation’ was “supplied to avoid the necessity for defining ‘Government corporation’ and ‘Government controlled corporation’
each time it is used in this title”). each time it is used in this title”).
~~211~~212 Digit. Realty Tr., Inc., 138 S. Ct. at 777. , 138 S. Ct. at 777.
~~212~~213 Id. (quoting 15 U.S.C. § 78u-6(a) with alterations). (quoting 15 U.S.C. § 78u-6(a) with alterations).
~~213~~214 The Limited, Inc. v. Commissioner, 286 F.3d 324, 337 (6th Cir. 2002). The Limited, Inc. v. Commissioner, 286 F.3d 324, 337 (6th Cir. 2002).
~~214 Id. (quoting 26 U.S.C. § 581).~~
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expressly states that its definition of ‘bank’ is ‘for purposes of sections 582 and 584.’”215 In the court’s view, it was “clear” from that restriction that “Congress was not providing a general 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.”sections.”~~215~~216
In limited circumstances, a court will draw on interpretations of a similar definition in another In limited circumstances, a court will 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).injury constituted taxable “compensation” under the Railroad Retirement Tax Act (RRTA).~~216~~217 The The
RRTA defined “compensation” as “any form of money remuneration paid to an individual for RRTA defined “compensation” as “any form of money remuneration paid to an individual for
services rendered as an employee,” excepting certain forms of sick pay and disability pay.services rendered as an employee,” excepting certain forms of sick pay and disability pay.~~217~~218 The The
Supreme Court observed that the RRTA’s definition of “compensation” was “materially Supreme Court observed that the RRTA’s definition of “compensation” was “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).the Federal Insurance Contributions Act (FICA).~~218~~219 FICA defined wages “to include FICA defined wages “to include
‘remuneration’ for ‘any service, of whatever nature, performed . . . by an employee.’”‘remuneration’ for ‘any service, of whatever nature, performed . . . by an employee.’”~~219~~220 Because 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).broadly to include back pay and severance pay (i.e., pay for periods of absence).~~220~~221 The Court 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.the RRTA.~~221~~222
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 called “the Dictionary Act,”definitions in what is often called “the Dictionary Act,”~~222~~223 which refers to the first eight sections which refers to the first eight sections
of the of the U.S. Code..~~223~~224 In addition to setting out some general rules of construction, the Dictionary In addition to setting out some general rules of construction, the Dictionary
Act defines a handful of widely used terms in federal statutes.Act defines a handful of widely used terms in federal statutes.~~224~~225 For example, it defines the terms 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 well as individuals,” and the term “writing” to include societies, and joint stock companies, as well 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.”otherwise.”~~225~~

226
215 215 Id.
~~216~~ (quoting 26 U.S.C. § 581). 216 Id. 217 Burlington N. Santa Fe Ry. v. Loos, 139 S. Ct. 893, 897 (2019). Burlington N. Santa Fe Ry. v. Loos, 139 S. Ct. 893, 897 (2019).
~~217~~218 Id. at 898 (quoting 26 U.S.C. § 3231(e)(1)). at 898 (quoting 26 U.S.C. § 3231(e)(1)).
~~218~~219 Id. at 899. at 899.
~~219~~220 Id. (quoting 26 U.S.C. § 3121). (quoting 26 U.S.C. § 3121).
~~220~~221 Id.
~~221~~222 Id. at 900. at 900.
~~222~~223 E.g., United States v. Windsor, 570 U.S. 744, 752 (2013). , United States v. Windsor, 570 U.S. 744, 752 (2013).
~~223~~224 1 U.S.C. §§ 1–8. 1 U.S.C. §§ 1–8.
~~224~~225 Id.
~~225~~226 Id. § 1. § 1.
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Terms Defined in the Dictionary Act~~226~~227
 
Association Association
 
Insane person Insane person
 
~~Spouse229~~Spouse230
 
Child Child
 
~~Marriage227~~Marriage228
 
Subscription Subscription
 
Company Company
 
Oath Oath
 
Sworn Sworn
 
County County
 
Officer Officer
 
Vehicle Vehicle
 
Human being Human being
 
~~Person228~~Person229
 
Vessel Vessel
 
Individual Individual
 
Products of American fisheries Products of American 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.closely held corporations.~~230~~231 Because RFRA did not define the term “person,” the Court looked to Because RFRA did not define the term “person,” the Court looked to
section 1 of the Dictionary Act, which defines person to include “corporations.”section 1 of the Dictionary Act, which defines person to include “corporations.”~~231~~232 Section 1’s Section 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~~233 While acknowledging that context can override the default definition, the 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.”from the Dictionary Act definition.”~~233~~234
When the Term Does Not Have an Applicable Statutory Definition
If a term used in a bill is If a term used in a bill is not defined—whether in the bill itself, in the underlying statute that the defined—whether in the bill itself, in the underlying statute that the
bill is amending, or in the Dictionary Act—a court generally gives the term its “ordinary bill is amending, or in the Dictionary Act—a court generally gives the term its “ordinary
meaning” when Congress enacted the law.meaning” when Congress enacted the law.~~234~~235 A notable exception is when a term carries a specific A notable exception is when a term carries a specific
meaning, as explained below. meaning, as explained below.

~~226~~227 The terms in this figure are listed in alphabetical order. Please refer to 1 U.S.C. §§ 1–8 for their definitions and the The terms in this figure are listed in alphabetical order. Please refer to 1 U.S.C. §§ 1–8 for their definitions and the
rules governing where these terms apply. rules governing where these terms apply.
~~227~~228 But see Windsor, 570 U.S. at 752, 774–75 (holding that section 3 of the Defense of Marriage Act (DOMA), which , 570 U.S. 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 equal protection under the Fifth Amendment). unconstitutionally deprived married, same-sex couples of liberty and equal protection under the Fifth Amendment).
~~228~~229 See 1 U.S.C. § 1 (defining person);1 U.S.C. § 1 (defining person); id. § 8 (including born-alive infants). § 8 (including born-alive infants). Cf. Return Mail, Inc. v. U.S. Postal Serv., 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 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. 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 Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 780–81 (2000))). Stevens, 529 U.S. 765, 780–81 (2000))).
~~229~~230 See supra note note ~~227.~~
~~230~~228. 231 573 U.S. 682, 707 (2014) (quoting 42 U.S.C. § 2000bb-1(a), (b)). 573 U.S. 682, 707 (2014) (quoting 42 U.S.C. § 2000bb-1(a), (b)).
~~231~~232 Id. at 707–08. at 707–08.
~~232~~233 Id. at 707 (quoting 1 U.S.C. § 1)at 707 (quoting 1 U.S.C. § 1) (emphasis added). (emphasis added).
~~233~~234 Id. at 708. The majority rejected the context-based argument of two of the dissenting Justices that only natural at 708. The majority rejected the context-based argument of two of the dissenting Justices that only natural
persons can “exercise . . . religion,” in part because the Court had previously entertained free exercise claims by persons can “exercise . . . religion,” in part because the Court had previously entertained free exercise claims by
nonprofit corporations. nonprofit corporations. Id. at 709–15. at 709–15.
234 See 235 Kouichi Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 566 (2012)Kouichi Taniguchi 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~~; Tanzin v. Tanvir, 141 S. Ct. 486, 491 (2020) (“Without a statutory definition, we turn to the phrase’s plain meaning at the time of enactment.”); .”); 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) (“Because the Bankruptcy Code does not define the words ‘statement,’ ‘financial condition,’ or ‘respecting,’ we (2018) (“Because the Bankruptcy Code does not define the words ‘statement,’ ‘financial condition,’ or ‘respecting,’ we
look to their ordinary meanings.”). look to their ordinary meanings.”).
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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.enacted.~~235~~236 For example, Title VII of the Civil Rights Act of 1964 prohibited covered employers For example, Title VII of the Civil 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.”sex.”~~236~~237 When a dispute about the scope of this protection reached the Supreme Court in 2019, the 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.were understood in 1964.~~237~~238 Justice Neil Gorsuch, writing for the Court, explained the reasons for 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.statutes outside the legislative process reserved for the people’s representatives. And we 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.have counted on to settle their rights and obligations.~~238~~239
To discern the ordinary meaning of terms, the Court often consults dictionaries. To discern the ordinary meaning of terms, the Court often consults dictionaries.~~239~~240 For example, For example,
the question in Encino Motorcars, LLC v. Navarro was whether a service advisor at a car the question in Encino Motorcars, LLC v. Navarro was whether a service advisor at a car
dealership—a type of customer service dealership—a type of customer service ~~representative240~~representative241—is a “salesman, partsman, or mechanic —is a “salesman, partsman, or mechanic
primarily engaged in selling or servicing automobiles” under an overtime-pay exemption that primarily engaged in selling or servicing automobiles” under an overtime-pay exemption that
Congress included in the applicable federal labor law in 1974.Congress included in the applicable federal labor law in 1974.~~241~~242 To determine the meaning of the 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.terms were added to the law.~~242~~243 The Court reasoned that a “service advisor is obviously a The Court reasoned that a “service advisor is obviously a
‘salesman’” because the “ordinary meaning of ‘salesman’ is someone who sells goods or ‘salesman’” because the “ordinary meaning of ‘salesman’ is someone who sells goods or
services” and service advisors “do precisely that.”services” and service advisors “do precisely that.”~~243~~244 The Court also reasoned that service 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
customers, recommend repair and maintenance services, and sell new accessories or replacement customers, recommend repair and maintenance services, and sell new accessories or replacement
parts.parts.~~244~~
245 Although dictionaries are one source courts use to confirm a word’s ordinary meaning, courts also look to common usage. In Abuelhawa v. United States, the Court considered whether the
~~235~~236 MCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 228 (1994) (stating that “the most relevant time for MCI Telecomms. Corp. v. AT&T 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~~237 42 U.S.C. § 2000e-2(a)(1). 42 U.S.C. § 2000e-2(a)(1).
~~237~~238 Bostock v. Clayton Cty., 140 S. Ct. 1731, 1739–41 (2020). While the meaning of “sex” was a key contested issue in Bostock v. Clayton Cty., 140 S. Ct. 1731, 1739–41 (2020). While the meaning of “sex” was a key contested issue in
the lower courts, the parties and the Court assumed, for the sake of argument, that “sex” referred “only to biological the lower courts, the parties and the Court assumed, for the sake of argument, that “sex” referred “only to biological
distinctions between male and female.” distinctions between male and female.” Id. at 1739. at 1739.
~~238~~239 Id. at 1738. at 1738.
~~239~~240 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 Court’s survey of dictionaries in use at the time of Interpreters Act its “ordinary or common meaning” based on the Court’s survey of dictionaries in use at the time of
enactment). enactment).
~~240~~241 See generally Learn About Being a Service Advisor, INDEED.COM, https://www.indeed.com/career-advice/careers/, INDEED.COM, https://www.indeed.com/career-advice/careers/
what-does-a-service-advisor-do (last visited what-does-a-service-advisor-do (last visited ~~July 17, 2020).~~
~~241~~May 19, 2022). 242 Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1138 (2018) (quoting 29 U.S.C. § 213(b)(10)(A)). Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1138 (2018) (quoting 29 U.S.C. § 213(b)(10)(A)).
~~242~~243 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~~244 Id.
~~244~~245 Id. (internal quotation marks and citations omitted). (internal quotation marks and citations omitted).
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defendant had “facilitat[ed]” felony drug distribution by using his cell phone to purchase a small amount of drugs.246 While acknowledging that phone calls “could be described as ‘facilitating’ drug distribution,” the Court explained that, depending on its context, “[a] word in a statute may or may not extend to the outer limits of its definitional possibilities.”247 In the context of a sales transaction between two people, the Court reasoned, an ordinary person would not describe the buyer as “facilitating” the sale.248 Thus, the defendant who purchased the drugs over the phone did not facilitate the seller’s crime of felony distribution.249 The Court again turned to common usage in its 2022 decision in Wooden v. United States.250 Although it arose in the context of sentencing for a later offense, the underlying question for the Court was whether robbing 10 units in a single storage facility on the same night constituted offenses on different “occasions.”251 The Court first considered how “an ordinary person” might describe the burglaries of the storage units, concluding that an ordinary person would describe these crimes as “happening on a single occasion” rather than on 10 separate occasions.252 The Court observed that this ordinary “usage” matched common dictionary definitions of “occasion” as “an event, occurrence, happening, or episode.”253 Although the Court proceeded to examine the context, history, and purpose of the statute,254 its initial focus on how an ordinary person would use the word “occasion” was an important part of the Court’s textual analysis.255 Specific Meaning
There are, however, some circumstances in which an undefined term has a special meaning that There are, however, some circumstances in which an undefined term has a special meaning that
may differ from its ordinary meaning. This may occur if: may differ from its ordinary meaning. This may occur if:
 a word or phrase is a term of art used in a particular field or statutory scheme;  a word or phrase is a term of art used in a particular field or statutory scheme;~~245~~256
 the term has a “well-settled meaning” at common law; the term has a “well-settled meaning” at common law;~~246 or~~
~~ 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~~
~~covers, a court may presume that Congress intended to adopt that meaning.248~~257 or 246 Abuelhawa v. United States, 556 U.S. 816, 818 (2009) (quoting 21 U.S.C. § 843(b)). 247 Id. at 819–20 (quoting Dolan v. Postal Serv., 546 U.S. 481, 486 (2006)). 248 Id. at 820. 249 Id. at 824. 250 Wooden v. United States, 142 S. Ct. 1063 (2022). 251 Id. at 1067 (quoting 18 U.S.C. § 924(e)(1)). 252 Id. at 1069. 253 Id. (citing American Heritage Dictionary 908 (1981); Webster’s Third New International Dictionary 1560 (3d ed. 1986)). 254 For example, the Court considered the structure of the sentencing enhancement, observing that it applied only when a defendant had three prior violent felonies and those felonies were committed on separate occasions. The Court reasoned that the government’s position—that the burglaries had occurred on different occasions because they constituted three separate offenses—would “collaps[e]” the two conditions, giving the occasions clause almost “no work to do.” Id. at 1070. 255 Id. at 1069. 256 See, e.g., Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 297 (2006) (declining to interpret “costs” according to its “ordinary usage” as expenses incurred because “‘costs’ is a term of art that generally does not include expert fees” (internal quotation marks and citation omitted)); Utah v. Evans, 536 U.S. 452, 467 (2002) (interpreting the statutory phrase “the statistical method known as ‘sampling,’” and reasoning that “the words ‘known as’ and the quotation marks that surround ‘sampling’” suggested that “sampling” was “a term of art with a technical meaning” in the field of statistics). 257 Universal Health Servs. v. United States ex rel. Escobar, 136 S. Ct. 1989, 1999 (2016) (reasoning that “the term ‘fraudulent’ is a paradigmatic example of a statutory term that incorporates the common-law meaning of fraud” and holding that the False Claims Act’s reference to “‘false or fraudulent claims’ include[s] more than just claims containing express falsehoods” because “common-law fraud has long encompassed certain misrepresentations by Congressional Research Service 41 Understanding Federal Legislation  the Supreme Court has authoritatively construed the term in a given way.258 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.259 For example, in 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.filed for the patent.~~249~~260 The Court was asked to decide whether “on sale” meant that the invention The Court was asked to decide whether “on sale” meant that the invention
had to be available to the public for purchase, or whether a sale to a “third party who [was] had to be available to the public for purchase, or whether a sale to a “third party who [was]
contractually obligated to keep the invention confidential” sufficed.contractually obligated to keep the invention confidential” sufficed.~~250~~261 The Court began by noting 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.”substantial body of law interpreting [that section’s] on-sale bar.”~~251~~262 In particular, in 1998, the 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 filed for a patent.inventor filed for a patent.~~252~~263 While the Court acknowledged that it had not precisely addressed 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 available to the public”—a suggestion “made explicit” in other, appellate not make an invention available to the public”—a suggestion “made explicit” in other, appellate
court decisions.court decisions.~~253~~264 Thus, even though in some contexts “on sale” denotes an item’s availability for 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” the public to purchase, because those words had “acquired a well-settled judicial interpretation”

~~245 See, e.g., Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 297 (2006) (declining to interpret~~
~~“costs” according to its “ordinary usage” as expenses incurred because “‘costs’ is a term of art that generally does not~~
~~include expert fees” (internal quotation marks and citation omitted)); Utah v. Evans, 536 U.S. 452, 467 (2002)~~
~~(interpreting the statutory phrase “the statistical method known as ‘sampling,’” and reasoning that “the words ‘known~~
~~as’ and the quotation marks that surround ‘sampling’” suggested that “sampling” was “a term of art with a technical~~
~~meaning” in the field of statistics).~~
~~246 Universal Health Servs. v. United States ex rel. Escobar, 136 S. Ct. 1989, 1999 (2016) (reasoning that “the term~~
~~‘fraudulent’ is a paradigmatic example of a statutory term that incorporates the common-law meaning of fraud” and~~
~~holding that the False Claims Act’s reference to “‘false or fraudulent claims’ include[s] more than just claims~~
~~containing express falsehoods” because “common-law fraud has long encompassed certain misrepresentations by~~
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.”265 The Court has suggested that a “term-of-art reading” may be inappropriate if the reader must omit or “rearrange” certain words in the statutory provision to match that term of art.266 “The first precondition of any term-of-art reading,” a plurality of the Court wrote in a 2021 decision, “is that the term be present in the disputed statute.”267 The Court has not always taken this approach, however. For example, in a 2009 decision, the Court read the word “facilitate” to be consistent with judicial interpretations of criminal law terms such as “aid,” “abet,” and “assist,” because omission”); omission”); see also Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 739 (1989) (noting that the term “scope Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 739 (1989) (noting that the term “scope
of employment” is a “widely used term of art in agency law,” referring to “common-law agency doctrine”). of employment” is a “widely used term of art in agency law,” referring to “common-law agency doctrine”). See
generally Common Law, BLACK’S LAW DICTIONARY (11th ed. 2019) (defined, , BLACK’S LAW DICTIONARY (11th ed. 2019) (defined, inter alia, as the “body of law derived , as the “body of law derived
from judicial decisions, rather than from statutes or constitutions”). from judicial decisions, rather than from statutes or constitutions”).
~~247~~258 E.g., Helsinn Healthcare S.A. v. Teva Pharm. USA, Inc., 139 S. Ct. 628 (2019). , Helsinn Healthcare S.A. v. Teva Pharm. USA, Inc., 139 S. Ct. 628 (2019).
~~248~~259 See Cmty. for Creative Non-Violence, 490 U.S. at 739 (stating, in a case concerning the meaning of the term , 490 U.S. at 739 (stating, in a case concerning the meaning of the term
“employee” as used in the Copyright Act of 1976, the “well established” principle that “[w]here Congress uses terms “employee” as used in the Copyright Act of 1976, the “well established” principle that “[w]here Congress uses terms
that have accumulated settled meaning under . . . the common law, a court must infer, unless the statute otherwise that have accumulated settled meaning under . . . the common law, a court must infer, unless the statute 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~~260 Helsinn Healthcare S.A., 139 S. Ct. at 630 (quoting 35 U.S.C. § 102(a)(1)). , 139 S. Ct. at 630 (quoting 35 U.S.C. § 102(a)(1)).
~~250~~261 Id.
~~251~~262 Id. at 633. at 633.
~~252~~263 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~~264 Id. (observing that the “Federal Circuit—which has ‘exclusive jurisdiction’ over patent appeals” had “long held that (observing that the “Federal Circuit—which has ‘exclusive jurisdiction’ over patent appeals” had “long held that
‘secret sales’ can invalidate a patent.” (citations omitted))‘secret sales’ can invalidate a patent.” (citations omitted)). 265 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. 266 Borden v. United States, 141 S. Ct. 1817, 1828 (2021) (plurality opinion); Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2365 (2019) (stating that the Court will not “ordinarily imbue statutory terms with a specialized common law meaning when Congress hasn’t itself invoked the common law terms of art associated with that meaning”). 267 Borden, 141 S. Ct. at 1828. Congressional Research Service 42.
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~~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~~
dictionaries equated facilitation with aiding and, in particular, helping to commit a crime.268 While acknowledging that prior aiding-and-abetting cases did not “strictly control” the interpretation of the facilitation provision, the Court “presume[d]” Congress’s familiarity with these earlier decisions and further surmised that “Congress had comparable scope in mind when it used the term ‘facilitate’” in the criminal provision at issue.269 As with all questions of statutory interpretation, the context in which a term is used may also As with all questions of statutory interpretation, the context in which a term is used may also
inform its meaning.inform its meaning.~~255~~270 For example, For example, United States v. Briggs involved the meaning of the phrase involved the meaning of the phrase
“punishable by death” in a provision of the Uniform Code of Military Justice (UCMJ).“punishable by death” in a provision of the Uniform Code of Military Justice (UCMJ).~~256~~271 The The
UCMJ’s statute-of-limitations section exempted offenses “punishable by death” from the statute’s UCMJ’s statute-of-limitations section exempted offenses “punishable by death” from the statute’s
general limitation period.general limitation period.~~257~~272 Three former military service-members convicted of rape argued that Three former military service-members convicted of rape argued that
their prosecutions were time-barred.their prosecutions were time-barred.~~258~~273 They maintained that rape was not “punishable by death” 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 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.violated the Eighth Amendment’s prohibition of cruel and unusual punishment.~~259~~274 Although the Although the
Briggs Court found it plausible that “punishable by death” could mean “capable of punishment” 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 under “all applicable law” (including the Constitution as interpreted by the Supreme Court), it
concluded that “context” favored a different interpretation.concluded that “context” favored a different interpretation.~~260~~275 Being a uniform code, the Court Being a uniform code, the Court
explained, the UCMJ was “a natural referent” for deciding which crimes were capital offenses.explained, the UCMJ was “a natural referent” for deciding which crimes were capital offenses.~~261~~276
Because a different section of the UCMJ stated that rape could be “punished by death,”Because a different section of the UCMJ stated that rape could be “punished by death,”~~262~~277 rape rape
was “punishable by death” within the meaning of the UCMJ’s statute-of-limitations provision.was “punishable by death” within the meaning of the UCMJ’s statute-of-limitations provision.~~263~~278
Thus, the Court concluded, “‘punishable by death’ is a term of art that is defined by the 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.”provisions of the UCMJ specifying the punishments for the offenses it outlaws.”~~264~~
~~Substantive Provisions~~
~~The substantive content in a bill—the provisions that have “the purpose and effect of altering the~~
~~legal rights, duties, and relations of persons”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~~279 268 Abuelhawa v. United States, 556 U.S. 816, 821 (2009). 269 Id. 270 See, e.g., Fed. Republic of Germany v. Philipp, 141 S. Ct. 703, 711–15 (2021) (interpreting “international law” in , 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 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 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) 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 (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 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 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 action” definition, in part because “the interpretive canon of ejusdem generis would attribute to the last item (‘failure to would attribute to the last item (‘failure to
act’) the same characteristic of discreteness shared by all the preceding items”); act’) the same characteristic of discreteness shared by all the preceding items”); see also 5 U.S.C. § 551(13) (defining 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 “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”). denial thereof, or failure to act”).
~~256~~271 United States v. Briggs, 141 S. Ct. 467, 470 (2020) (quoting 10 U.S.C. § 843(a) (1988 ed.)). United States v. Briggs, 141 S. Ct. 467, 470 (2020) (quoting 10 U.S.C. § 843(a) (1988 ed.)).
~~257~~272 Id.
~~258~~273 Id. at 469–70. at 469–70.
~~259~~274 Id. at 470 (citing Coker v. Georgia, 433 U.S. 584 (1977)). at 470 (citing Coker v. Georgia, 433 U.S. 584 (1977)).
~~260~~275 Id. at 469–70. at 469–70.
~~261~~276 Id. at 470. at 470.
~~262~~277 See 10 U.S.C. § 920(a) (1982 and 1994 eds.). 10 U.S.C. § 920(a) (1982 and 1994 eds.).
~~263~~278 Briggs, 141 S. Ct., 141 S. Ct. at 471. The Court did not decide whether sentencing a military service-member to death 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 following a rape conviction under the UCMJ would violate the Eighth Amendment, describing the law on the question
as unsettled. as unsettled. Id. at 471–72. 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).~~
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~~Understanding Federal Legislation~~

~~different forms.266~~279 Id. at 473. Congressional Research Service 43 Understanding Federal Legislation Substantive Provisions The substantive content in a bill—the provisions that have “the purpose and effect of altering the legal rights, duties, and relations of persons”280 and the potential to bind third parties—can take different forms.281 The following is a non-exhaustive list of ways to characterize and categorize a The following is a non-exhaustive list of ways to characterize and categorize a
bill’s substantive provisions: bill’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,~~267~~282 the availability of funding (i.e., appropriations), the availability of funding (i.e., appropriations),~~268~~283 or the retroactivity or the retroactivity
of laws creating liability or penalties.of laws creating liability or penalties.~~269~~284 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.~~270~~285
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
reader’s review of substantive bill provisions. It begins by identifying how substantive provisions 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 are typically organized: as general rules and exceptions. It then discusses legal principles related
to the creation of rights and remedies. 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~~ 280 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). 281 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 because what they do and how they do it will depend upon the nature and scope of the bill’s principal objective forms because what they do and how they do it will depend upon the nature and scope of the bill’s 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”).
~~267~~282 See generally Table of Laws Held Unconstitutional in Whole or in Part by the Supreme Court, CONSTITUTION , CONSTITUTION
ANNOTATED, https://constitution.congress.gov/resources/unconstitutional-laws/ (last visited ANNOTATED, https://constitution.congress.gov/resources/unconstitutional-laws/ (last visited ~~Sept. 24, 2021).~~
~~268~~May 19, 2022). 283 See generally CRS Report CRS Report ~~RS20371, Overview of the Authorization-Appropriations Process, by Bill Heniff Jr.; CRS~~
~~Report R42098, Authorization of Appropriations: Procedural and Legal Issues, coordinated by Edward C. Liu.~~
~~269~~R47106, The Appropriations Process: A Brief Overview, by James V. Saturno and Megan S. Lynch. 284 See generally CRS In Focus IF11293, CRS In Focus IF11293, Retroactive Legislation: A Primer for Congress, by Joanna R. Lampe. , by Joanna R. Lampe.
~~270~~285 See CRS Report R45336, CRS Report R45336, Agency Delay: Congressional and Judicial Means to Expedite Agency Rulemaking 4, 6, 4, 6,
by Kevin J. Hickey (discussing the tools Congress may use to encourage timely agency action, including “nonbinding by Kevin J. Hickey (discussing the tools Congress may use to encourage timely agency action, including “nonbinding
time frames,” “hard statutory deadline[s],” and deadlines backed by statutory penalties); CRS Report R41546, time frames,” “hard statutory deadline[s],” and deadlines backed by statutory penalties); CRS Report R41546, A Brief
Overview of Rulemaking and Judicial Review 4, by Todd Garvey (“In providing rulemaking authority to an agency, 4, by Todd Garvey (“In providing rulemaking authority to an agency,
Congress may direct the agency to follow specific procedural requirements in addition to those required by the informal Congress 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].”).
~~271~~Congressional Research Service 44 link to page 51 link to page 52 link to page 52 Understanding Federal Legislation General Rules and Exceptions Many times, substantive provisions are divided into general rules and exceptions.286 Often, but not always,287 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.288 Congressional drafters may also include broader limitations on a bill’s scope in a section entitled “Applicability.”289 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.290 Attention to each provision is important because some exceptions or limitations have their own exceptions, as shown in Figure 18. 286 See HOLC Guide to Legislative Drafting, , supra note 18 (describing the office’s “general template for structuring note 18 (describing the office’s “general template for structuring
content” in a bill, beginning with the “general rule,” followed by any “exceptions” or “special rules”). Although HOLC content” in a bill, beginning with the “general rule,” followed by any “exceptions” or “special rules”). Although HOLC
distinguishes between distinguishes between exceptions (“the persons or things to which the [general rule] does not apply”) and (“the persons or things to which the [general rule] does not apply”) and special rules
(“the persons or things to which the [general rule] applies in a different way or for which there is a different [rule]”), (“the persons or things to which the [general rule] applies in a different way or for which 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.
~~272~~287 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 (including in proposed § 1532(b)(2)(I), a https://www.congress.gov/115/bills/s1922/BILLS-115s1922is.pdf (including 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).
~~Congressional Research Service~~
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~~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~~288 The terms “exception” The terms “exception” and “exemption”and “exemption” are generally synonymous and are often used interchangeably. 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, , BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “exemption” as “[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 “statutory BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “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) (“A true statutory exception exists only to exempt 2A SUTHERLAND STATUTORY CONSTRUCTION § 47:11 (7th ed. 2019) (“A true statutory exception exists only to exempt
something which would otherwise be covered by an act.”). something which would otherwise be covered by an act.”). ~~But~~Nonetheless, one or the other term may have gained prominence in 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) (“Exemptions from , 3A SUTHERLAND STATUTORY CONSTRUCTION § 66:9 (8th ed. 2019) (“Exemptions from
taxation have an ancient history, as old as taxation itself.”). taxation have an ancient history, as old as taxation itself.”).
~~274~~289 See, e.g., Figure 18.
~~275~~290 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
begins with the words begins with the words provided that and supplies a condition, exception, or addition”); 1A SUTHERLAND STATUTORY and supplies a condition, exception, or addition”); 1A SUTHERLAND STATUTORY
CONSTRUCTION § 20:22 (7th ed. 2019) (cautioning that “provided” can “either introduce a condition or exception, and CONSTRUCTION § 20:22 (7th ed. 2019) (cautioning that “provided” can “either introduce a condition or exception, and
be synonymous with ‘if,’ or it can be used as a conjunction meaning ‘and,’” and positing that “the word ‘provided’ has be synonymous with ‘if,’ or it can be used as a conjunction meaning ‘and,’” and positing that “the word ‘provided’ has
so frequently been used as a conjunctive to add amendments, particularly those made on the floor of the House during so frequently been used as 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 language of the act or to add independent and supplementary regulation”). limitation on the general language of the act or to add independent and supplementary regulation”).
Congressional Research Service Congressional Research Service
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Understanding Federal Legislation

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.
Congressional Research Service Congressional Research Service
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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 normally has “no license to give [statutory] exemption[s] anything narrowly construed, a court normally has “no license to give [statutory] exemption[s] anything
but a fair reading.”but a fair reading.”~~276~~291 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

~~276~~291 Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2366 (2019) (quoting Encino Motorcars LLC v. Navarro, Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2366 (2019) (quoting Encino Motorcars LLC v. Navarro,
138 S. Ct. 1134, 1142 (2018)); 138 S. 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’ and insisted that the Court has “often noted” the Freedom of Information Act’s (FOIA’s) “‘goal of broad disclosure’ 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” (internal citations omitted)). intended through the simple device of confining the provision’s meaning to its words” (internal citations omitted)).
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whole. whole.~~277~~292 This analysis may be informed by applicable canons of construction, This analysis may be informed by applicable canons of construction,~~278~~293 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.~~279~~294 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,~~280~~295
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.”~~281~~296
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 qualified by an exception and the general rule. Where “a general statement of policy is qualified by an
exception,” the Supreme Court “usually read[s] the exception narrowly in order to preserve the exception,” the Supreme Court “usually read[s] the exception narrowly in order to preserve the
primary operation of the provision.”primary operation of the provision.”~~282~~297 This is not to say that a court will give all exceptions their This is not to say that a court will give all 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
“swallows” the general rule.“swallows” the general rule.~~283~~298
Rights, Remedies, and Enforcement
~~In practice, a requirement may not compel, and a prohibition may not deter, the specified conduct~~
~~without an enforcement mechanism to promote compliance.284 Sometimes~~When drafting a law that prohibits or requires something, legislative drafters may also consider what kind of enforcement or remedial provisions are appropriate. Sometimes, Congress uses its 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.~~285~~299 In other situations, there are In other situations, there are
established statutory frameworks that provide remedies for aggrieved parties.established statutory frameworks that provide remedies for aggrieved parties.300 For example, For example, ~~if a~~the

~~277~~292 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
Standards Act gave “no ‘textual indication’ that its exemptions should be construed narrowly, ‘there is no reason to Standards 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’” (quoting ANTONIN SCALIA & BRYAN A. give [them] anything other than a fair (rather than a ‘narrow’) interpretation’” (quoting ANTONIN SCALIA & BRYAN A.
GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 363 (2012))); GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 363 (2012))); Milner, 562 U.S. at 569 (explaining, in , 562 U.S. at 569 (explaining, in
reference to FOIA, that the Court’s “consideration of [an exemption’s] scope starts with its text”). reference to FOIA, that the Court’s “consideration of [an exemption’s] scope starts with its text”).
~~278~~293 See, e.g.,, Fla. Dep’t of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 50–51 (2008) (concluding, based on the Fla. Dep’t of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 50–51 (2008) (concluding, based 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. of Equalization v. Sierra Summit, 490 U.S. 844, 851–52 (1989))). (quoting Cal. State Bd. of Equalization v. Sierra Summit, 490 U.S. 844, 851–52 (1989))).
~~279~~294 See, e.g.,, Dolan v. U.S. Postal Serv., 546 U.S. 481, 492 (2006) (reasoning that “‘unduly generous interpretations of Dolan v. U.S. Postal Serv., 546 U.S. 481, 492 (2006) (reasoning that “‘unduly generous interpretations of
the exceptions [in the Federal Tort Claims Act] run the risk of defeating the central purpose of the statute,’ which the exceptions [in the Federal Tort Claims Act] run the risk of defeating the central purpose of the statute,’ which
‘waives the Government’s immunity from suit in sweeping language’” (internal citations omitted). ‘waives the Government’s immunity from suit in sweeping language’” (internal citations omitted).
~~280~~295 See, e.g., , Food Mktg. Inst., 139 S. Ct. at 2366 (“[J]ust as we cannot properly , 139 S. Ct. at 2366 (“[J]ust as we cannot properly expand [FOIA’s fourth exemption] [FOIA’s fourth exemption]
beyond what its terms permit, we cannot arbitrarily beyond what its terms permit, we cannot arbitrarily constrict it either by adding limitations found nowhere in its terms.” it either by adding 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)).
~~281~~296 See, e.g., Maracich v. Spears, 570 U.S. 48, 59–61 (2013) (acknowledging that an exception in the Driver’s Privacy , Maracich v. Spears, 570 U.S. 48, 59–61 (2013) (acknowledging that an exception in the Driver’s Privacy
Protection Act of 1994 [DPPA] allowing the disclosure of information “‘for use in connection with any civil, criminal, Protection Act of 1994 [DPPA] allowing the disclosure of information “‘for use in connection with any civil, criminal,
administrative, or arbitral proceeding’” was “susceptible to a broad interpretation” that included attorney solicitation, administrative, or arbitral proceeding’” was “susceptible to a broad 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 could be shown, it would undermine in a substantial between the protected information and a potential legal dispute could be shown, it would undermine in a substantial
way the DPPA’s purpose of protecting an individual’s right to privacy in his or her motor vehicle records”). way the DPPA’s purpose of protecting an individual’s right to privacy in his or her motor vehicle records”).
~~282~~297 Comm’r v. Clark, 489 U.S. 726, 739 (1989). Comm’r v. Clark, 489 U.S. 726, 739 (1989). But see City of Columbus v. Ours Garage & Wrecker Serv., 536 U.S. City of Columbus v. Ours Garage & Wrecker Serv., 536 U.S.
424, 440 (2002) (reasoning that a “congressional decision to enact both a general policy that furthers a particular goal 424, 440 (2002) (reasoning that a “congressional decision to enact both a general policy that furthers a particular goal
and a specific exception that might tend against that goal does not invariably call for the narrowest possible and a specific exception that might tend against that goal does not invariably call for the narrowest 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”).
~~283~~298 Knight v. Comm’r, 552 U.S. 181, 191 (2008). 299 ~~Knight v. Comm’r, 552 U.S. 181, 191 (2008).~~
~~284 See 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 “[q]uestions of enforcement” among the~~
~~“key questions [that] should be answered to produce a draft that accomplishes the intended policy and avoids~~
~~unintended consequences”).~~
~~285~~ See generally CRS Report RL30240, CRS Report RL30240, Congressional Oversight Manual, coordinated by Christopher M. Davis, , coordinated by Christopher M. Davis,
Walter J. Oleszek, and Ben Wilhelm; CRS In Focus IF10015, Walter J. Oleszek, and Ben Wilhelm; CRS In Focus IF10015, Congressional Oversight and Investigations, by Todd , by Todd
Garvey and Walter J. Oleszek. Garvey and Walter J. Oleszek.
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~~bill authorizes an agency to adopt rules to implement its requirements, an entity affected by that~~
~~agency’s rulemaking may be able to challenge the rule as violating the Administrative Procedure~~
~~Act (APA) if the rule exceeded the agency’s authority or was “arbitrary and capricious.”286~~300 See Gonzaga Univ. v. Doe, 536 U.S. 273, 284–85 (2002) (explaining that “[p]laintiffs suing under [42 U.S.C.] § 1983 do not have the burden of showing an intent to create a private remedy because § 1983 generally supplies a remedy for the vindication of rights secured by federal statutes” but that such plaintiffs must still show that Congress expressly created a federal right if relying on a federal statute). Congressional Research Service 48 Understanding Federal Legislation APA provides remedies for persons affected by agency action, even if the agency takes that action under the authority of a later-enacted statute.301
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~~one in the bill itself.302 This is because in practice, a requirement may not compel, and a prohibition may not deter, the specified conduct without an enforcement mechanism to promote compliance.303 This practical consideration can have legal consequences as well. For example, in 2021, the Supreme Court held that two individuals lacked standing304 to challenge the constitutionality of a requirement in the Patient Protection and Affordable Care Act that individuals obtain “minimum essential” health insurance coverage.305 The Court reasoned that because there was no longer a penalty associated with that requirement,306 the plaintiffs could not show that their asserted injury from complying with it was “fairly traceable” to the allegedly unconstitutional provision—a prerequisite for standing.307 Subject to certain constitutional limitations,308 a penalty for violating a federal statute can take many forms, including the termination of federal funding (in the case of funding recipients), civil money damages, or criminal fines or imprisonment.309 The bill may authorize the government or private parties to initiate a civil cause of action to sue for relief.310 Alternatively, it may require a private party to “exhaust” the party’s claim before a federal agency,311 sometimes specifying 301 ~~in the bill itself.287 For example, if Congress prohibits a private party~~
~~from engaging in certain conduct, the prohibition, while still a law, may not achieve its intended~~
~~purpose without an administrative, civil, or criminal penalty to hold the private party~~
~~accountable.288 Subject to certain constitutional limitations,289 this penalty can take many forms,~~
~~including the termination of federal funding (in the case of funding recipients), civil money~~
~~damages, or criminal fines or imprisonment.290 The bill may authorize the government or private~~
~~parties to initiate a civil cause of action to sue for relief.291 Or it may require a private party to~~
~~“exhaust” the party’s claim before a federal agency,292 sometimes specifying which courts have~~
~~jurisdiction to hear appeals from adverse agency decisions.293 Whether the remedy is exclusive, or~~
~~in addition to state law remedies, may be addressed in a preemption clause, discussed in the next~~
~~section.294~~
~~Whether a bill creates a private right of action (i.e., allowing an aggrieved individual or entity, as~~
~~opposed to the government, to bring suit), depends primarily on the bill’s language. A bill written~~
~~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~~
~~remedy.295 This is because, “[l]ike substantive federal law itself, private rights of action to enforce~~

~~286~~ See generally CRS In Focus IF10003, CRS In Focus IF10003, An Overview of Federal Regulations and the Rulemaking Process, by Maeve , by Maeve
P. Carey; CRS Legal Sidebar LSB10497, P. Carey; CRS Legal Sidebar LSB10497, Supreme Court: DACA Rescission Violated the APA 3, by Ben Harrington 3, by Ben Harrington
(“The APA provides that agency actions are unlawful if they are ‘arbitrary and capricious’—a standard that requires (“The APA provides that agency actions are unlawful if they are ‘arbitrary and capricious’—a standard that requires
federal agencies to provide satisfactory explanations for their decisions, including decisions to change existing federal agencies to provide satisfactory explanations for their decisions, including decisions to change existing
policies.”). policies.”).
~~287~~302 See H. OFF. OF LEG. COUNSEL, INTRODUCTION TO LEGISLATIVE DRAFTINGH. OFF. OF LEG. COUNSEL, INTRODUCTION TO LEGISLATIVE DRAFTING~~, supra note 284, at 6.~~
~~288 See id. (encouraging drafters to ask whether “people [will] be encouraged to follow the policy through incentives or~~
~~punished for violating it (carrots versus sticks)”).~~
~~289~~ 6 (2019), https://legcounsel.house.gov/sites/legcounsel.house.gov/files/documents/intro_to_drafting.pdf. 303 See id. (identifying “[q]uestions of enforcement” among the “key questions [that] should be answered to produce a draft that accomplishes the intended policy and avoids unintended consequences”). 304 See Standing Requirement: Overview, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S2-C1-2-5-1/ALDE_00001197/. 305 California v. Texas, 141 S. Ct. 2104, 2114 (2021). 306 As enacted in 2010, the act imposed a monetary penalty on individuals who did not obtain minimum essential health insurance coverage. Pub. L. No. 111-148, title I, subtit. F, pt. 1, § 1501(b) (2010) (codified as amended at 26 U.S.C. § 5000A). In 2017, however, Congress set this penalty at $0, effectively removing it. Tax Cuts and Jobs Act of 2017, Pub. L. No. 115-97, § 11081, 131 Stat. 2092 (codified at 26 U.S.C. § 5000A(c)). 307 California, 141 S. Ct. at 2114. 308 See, e.g., CRS In Focus IF11293, , CRS In Focus IF11293, Retroactive Legislation: A Primer for Congress, by Joanna R. Lampe. , by Joanna R. Lampe.
~~290~~309 See H. OFF. OF LEG. COUNSEL, INTRODUCTION TO LEGISLATIVE DRAFTING, H. OFF. OF LEG. COUNSEL, INTRODUCTION TO LEGISLATIVE DRAFTING, supra note note ~~284~~302, at 6 (encouraging drafters , at 6 (encouraging drafters
to ask whether any specified penalties should be criminal or civil). to ask whether any specified penalties should be criminal or civil).
~~291~~310 See Stokes v. Sw. Airlines, 887 F.3d 199, 201 (5th Cir. 2018) (“Often, Congress expressly provides for private civil-Stokes v. Sw. Airlines, 887 F.3d 199, 201 (5th Cir. 2018) (“Often, Congress expressly provides for private civil-
suit enforcement. Other times, however, Congress specifies only criminal-law enforcement, or leaves civil enforcement suit enforcement. Other times, however, Congress specifies only criminal-law enforcement, or leaves civil enforcement
in the hands of administrative agencies. Courts are bound to follow Congress’s choices in this arena, and bound to in the hands of administrative agencies. Courts are bound to follow Congress’s choices in this arena, and bound to
ascertain those choices through the tools of statutory interpretation.”). ascertain those choices through the tools of statutory interpretation.”).
~~292~~311 See, e.g., Darby v. Cisneros, 509 U.S. 137, 147 (1993) (stating that “Section 10(c) [of the APA] explicitly requires , Darby v. Cisneros, 509 U.S. 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”); Patsy v. Bd. of Regents, 457 U.S. exhaustion of all intra-agency appeals mandated either by statute or by agency rule”); Patsy v. Bd. of Regents, 457 U.S.
496, 502 n.4 (1982) (“Of course, exhaustion is required where Congress provides that certain administrative remedies 496, 502 n.4 (1982) (“Of course, exhaustion is required where Congress provides that certain administrative remedies
shall be exclusive. Even where the statutory requirement of exhaustion is not explicit, courts are guided by shall be exclusive. Even where the statutory requirement of exhaustion is not explicit, courts are guided by
congressional intent in determining whether application of the doctrine would be consistent with the statutory scheme. congressional intent in determining whether application of the doctrine would be consistent with the statutory scheme.
In determining whether exhaustion of federal administrative remedies is required, courts generally focus on the role In determining whether exhaustion of federal administrative remedies is required, courts generally focus on the role
Congress has assigned to the relevant federal agency, and tailor the exhaustion rule to fit the particular administrative Congress has assigned 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)).
~~293 See, e.g., Rochester v. Bond, 603 F.2d 927, 931, 934, 939 (D.C. Cir. 1979) (holding that “§ 402 of the~~
~~Communications Act and § 1006 of the Aviation Act . . . prescribed the exclusive mode of judicial review”—an appeal~~
~~to a federal court of appeals—and that the plaintiffs, who sought review in federal district court, sued in the “‘wrong’~~
~~court”).~~
~~294 See infra “Preemption Clauses.”~~
~~295 See Gonzaga Univ. v. Doe, 536 U.S. 273, 284 (2002) (“[E]ven where a statute is phrased in such explicit rights-~~
~~creating terms, a plaintiff suing under an implied right of action still must show that the statute manifests an intent ‘to~~
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~~federal law must be created by Congress.”296~~Congressional Research Service 49 link to page 55 Understanding Federal Legislation which courts have jurisdiction to hear appeals from adverse agency decisions.312 Whether the remedy is exclusive, or in addition to state law remedies, may be addressed in a preemption clause, discussed in the next section.313 Whether a bill creates a private right of action (i.e., allowing an aggrieved individual or entity, as opposed to the government, to bring suit), depends primarily on the bill’s language. A bill written 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 remedy.314 This is because, “[l]ike substantive federal law itself, private rights of action to enforce federal law must be created by Congress.”315 While the Supreme Court has in the past recognized While the Supreme Court has in the past recognized
“implied” rights of action “under certain limited circumstances,”“implied” rights of action “under certain limited circumstances,”~~297~~316 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.”~~298~~317 Accordingly, if a bill does not Accordingly, if a bill 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 bill implicitly creates a private cause of action.that the bill implicitly creates a private cause of action.~~299~~318
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.~~300~~319 Accordingly, when a federal bill seeks to regulate private entities or Accordingly, when a federal bill seeks to regulate private entities or
individuals, questions may arise as to how the regulation interacts with state law. For example, individuals, questions may arise as to how the regulation interacts with state law. For example,
would the bill set a regulatory baseline or “floor” that states could supplement with their own would the bill 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?~~301~~320
Would the bill allow states to mirror the federal regulation as long as their laws are co-extensive Would the bill allow states to mirror the federal regulation as long as their laws are co-extensive
with the federal one?with the federal one?~~302~~321
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,~~303~~322 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.304 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~~
~~clause (e.g., Figure 19); or (2) a federal law can impliedly preempt a state law as reflected in the~~
~~statute’s text, structure, or purpose.305~~

312 See, e.g., Rochester v. Bond, 603 F.2d 927, 931, 934, 939 (D.C. Cir. 1979) (holding that “§ 402 of the Communications Act and § 1006 of the Aviation Act . . . prescribed the exclusive mode of judicial review”—an appeal to a federal court of appeals—and that the plaintiffs, who sought review in federal district court, sued in the “‘wrong’ court”). 313 See infra “Preemption Clauses.” 314 See Gonzaga Univ. v. Doe, 536 U.S. 273, 284 (2002) (“[E]ven where a statute is phrased in such explicit rights-creating terms, a plaintiff suing under an implied right of action still must show that the statute manifests an intent ‘to create not just a private create not just a private right but also a private but also a private remedy.’” (quoting Alexander v. Sandoval, 532 U.S. 275, 286 (2001) .’” (quoting Alexander v. Sandoval, 532 U.S. 275, 286 (2001)
(with emphasis added)); Cannon v. Univ. of Chi., 441 U.S. 677, 688 (1979) (“[T]he fact that a federal statute has been (with emphasis added)); Cannon v. Univ. of Chi., 441 U.S. 677, 688 (1979) (“[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.”).
~~296~~ 315 Alexander v. Sandoval, 532 U.S. 275, 286 (2001). Alexander v. Sandoval, 532 U.S. 275, 286 (2001).
~~297~~316 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
believed that courts had a duty to “‘provide such remedies as are necessary to make effective the congressional believed 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 “sworn off the habit of venturing beyond Congress’s intent” (quoting J. purpose’ expressed by a statute,” but has since “sworn off the habit of venturing beyond Congress’s intent” (quoting J.
I. Case Co. v. Borak, 377 U.S. 426, 433 (1964))). I. Case Co. v. Borak, 377 U.S. 426, 433 (1964))).
~~298~~317 Alexander, 532 U.S. at 286; , 532 U.S. at 286; see also Ziglar v. Abbasi, 137 S. Ct. 1843, 1856 (2017) (“If the statute does not itself so Ziglar v. Abbasi, 137 S. Ct. 1843, 1856 (2017) (“If the statute does not itself so
provide, a private cause of action will not be created through judicial mandate.”). provide, a private cause of action will not be created through judicial mandate.”).
~~299~~318 Cf. Alexander, 532 U.S. at 291 (finding “no evidence anywhere in the text to suggest that Congress intended to , 532 U.S. at 291 (finding “no evidence anywhere in the text to suggest that Congress intended to
create a private right to enforce regulations” promulgated under the statute). create a private right to enforce regulations” promulgated under the statute).
~~300~~319 See Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 286–87 (1981). Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 286–87 (1981).
~~301~~320 See CRS Report R45825, CRS Report R45825, Federal Preemption: A Legal Primer 26, by Jay B. Sykes and Nicole Vanatko. 26, by Jay B. Sykes and Nicole Vanatko.
~~302~~321 See id. at 12. at 12.
~~303~~322 U.S. CONST. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance U.S. CONST. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance
Congressional Research Service 50 link to page 56 Understanding Federal Legislation federal law.323 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 clause (e.g., Figure 19); or (2) a federal law can impliedly preempt a state law as reflected in the statute’s text, structure, or purpose.324 Figure 19. Preemption Clause Source: Good Samaritan Health Professionals Act of 2016, S. 3101, 114th Cong. § 2(a) (as introduced, June 27, 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 the overall context of the relevant statutory scheme.325 Even so, some general principles can be discerned from the relevant case law.326 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 thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in thereof . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in
the Constitution or Laws of any State to the Contrary notwithstanding.”)the Constitution or Laws of any State to the Contrary notwithstanding.”); see generally The Supremacy Clause: Overview, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/artVI-C2-1/ALDE_00001294/. 323.
~~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, but the same preemption principles generally apply to local laws. refers to state laws, but the same preemption principles generally apply to local laws. See Hillsborough Cty. v. Hillsborough Cty. v.
Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985) (“[F]or the purposes of the Supremacy Clause, the Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985) (“[F]or the purposes of the Supremacy Clause, the
constitutionality of local ordinances is analyzed in the same way as that of statewide laws.”). constitutionality of local ordinances is analyzed in the same way as that of statewide laws.”).
~~305~~324 Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992) (plurality opinion) (“Pre-emption may be either Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992) (plurality opinion) (“Pre-emption may be either
expressed or implied, and ‘is compelled whether Congress’ command is explicitly stated in the statute’s language or expressed or implied, and ‘is compelled whether Congress’ 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. 519, 525 (1977))); implicitly contained in its structure and purpose.’” (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977))); see
also Murphy v. NCAA, 138 S. Ct. 1461, 1480 (2018) (stating that preemption operates the same way whether express Murphy v. NCAA, 138 S. Ct. 1461, 1480 (2018) (stating that preemption operates the same way whether express
or implied). or implied).
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~~Understanding Federal Legislation~~

~~Figure 19. Preemption Clause~~

Source: Good Samaritan Health Professionals 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.~~
~~Judicial interpretations of preemption provisions largely depend on the precise language used and~~
~~the overall context of the relevant statutory scheme.306 Even so, some general principles can be~~
~~discerned from the relevant case law.307 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~~
~~law.308 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~~
~~preemptive effect than one stating that a federal statute “covering” the subject matter of a state~~
~~law displaces the state law.309 Moreover, terms that might be used interchangeably in common~~
~~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~~325 See, , e.g., Altria Grp., Inc. v. Good, 555 U.S. 70, 80 (2008) (reasoning that “[a]lthough it is clear that fidelity to the , Altria Grp., Inc. v. Good, 555 U.S. 70, 80 (2008) (reasoning that “[a]lthough it is clear that fidelity to the
[Federal Cigarette Labeling and Advertising] Act’s purposes does not demand the pre-emption of state fraud rules, the [Federal Cigarette Labeling and Advertising] Act’s purposes does not demand the pre-emption of state fraud rules, the
principal question that we must decide is whether the text of § 1334(b) nevertheless requires that result”); Ky. Ass’n of principal question that we must decide is 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 “use of the McCarran-Ferguson Health Plans v. Miller, 538 U.S. 329, 339–40 (2003) (stating that the Court’s prior “use of the McCarran-Ferguson
[Act] case law in the ERISA context has misdirected attention, failed to provide clear guidance to lower federal courts, [Act] case law in the ERISA context has misdirected attention, failed to provide clear guidance to lower federal courts,
and . . . added little to the relevant [preemption] analysis,” which, in the Court’s view, was “unsurprising, since the and . . . added little to the relevant [preemption] analysis,” which, in the Court’s view, was “unsurprising, since the
statutory language of [ERISA] § 1144(b)(2)(A) differs substantially from that of the McCarran-Ferguson Act”). statutory language of [ERISA] § 1144(b)(2)(A) differs substantially from that of the McCarran-Ferguson Act”).
~~307~~326 For an in-depth analysis of terminology commonly used in express preemption clauses and savings clauses, see CRS For an in-depth analysis of terminology commonly used in express preemption clauses and savings clauses, see CRS
Report R45825, Report R45825, Federal Preemption: A Legal Primer, , supra note note ~~301~~320, at 6–13. Congressional Research Service 51 Understanding Federal Legislation law.327 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 preemptive effect than one stating that a federal statute “covering” the subject matter of a state law displaces the state law.328 Moreover, terms that might be used interchangeably in common 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 ~~, at 6–13.~~
~~308 See, e.g., Kansas v. Garcia, 140 S. 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~~
~~before the Court, because it preempted state laws imposing liability on employers, not on employees).~~
~~309 See CRS Report R45825, Federal Preemption: A Legal Primer, supra note 301, at 10 (explaining that the Supreme~~
~~Court has held that federal law preempts state laws “related to” matters of federal regulatory concern when the state~~
~~laws 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]’” the subject matter of the~~
~~relevant state law (citing Shaw v. Delta Air Lines, 463 U.S. 85, 96–97 (1983) and quoting CSX Transp. v. Easterwood,~~
~~507 U.S. 658, 664 (1993))). Cf., e.g., Stern v. Gen. Elec. Co., 924 F.2d 472, 475 (2d Cir. 1991) (“The preemption~~
~~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. § 453 (1988). The narrow wording of this provision suggests that Congress did~~
~~not intend to preempt state regulation with respect to non-election-related activities.” (emphasis added)).~~
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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.~~310 And~~329 Further, if a bill preempts state requirements that are if a bill preempts state requirements that are
“in addition to, or different than” federal requirements, it may be interpreted to allow “in addition to, or different than” federal requirements, it may be interpreted to allow parallel
state requirements even if they do not explicitly incorporate federal law or they provide for state requirements even if they do not explicitly incorporate federal law or they provide for
different remedies than federal law.different remedies than federal law.~~311~~330
Second, in the past Second, in the past, courts have applied a presumption 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 traditionally occupied.concerns a field that states have traditionally occupied.~~312~~331 Courts have not always been consistent Courts have not always been consistent
in applying this presumption,in applying this presumption,~~313~~332 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.~~314~~333
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.~~315~~334 The Supreme Court recognizes the “well- 327 See, e.g., Kansas v. Garcia, 140 S. 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 before the Court, because it preempted state laws imposing liability on employers, not on employees). 328 See CRS Report R45825, Federal Preemption: A Legal Primer, supra note 320, at 10 (explaining that the Supreme Court has held that federal law preempts state laws “related to” matters of federal regulatory concern when the state laws 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]’” the subject matter of the relevant state law (citing Shaw v. Delta Air Lines, 463 U.S. 85, 96–97 (1983) and quoting CSX Transp. v. Easterwood, 507 U.S. 658, 664 (1993))). Cf., e.g., Stern v. Gen. Elec. Co., 924 F.2d 472, 475 (2d Cir. 1991) (“The preemption 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. § 453 (1988). The narrow wording of this provision suggests that Congress did not intend to preempt state regulation with respect to non-election-related activities.” (emphasis added)). 329 CRS Report R45825, Federal Preemption: A Legal Primer, supra note 320 ~~The Supreme Court recognizes the “well-~~
~~settled” principle of conflict preemption,316 which occurs when “compliance with both federal~~
~~and state regulations is a physical impossibility,”317 or because “the challenged state law ‘stands~~
~~as an obstacle to the accomplishment and execution of the full purposes and objectives of~~
~~Congress.’”318 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~~
~~for supplementary state legislation.’”319~~
~~In Geier v. American Honda Motor Co., the Court invoked implied, conflict preemption~~
~~principles in analyzing a federal statute that contained a preemption clause and an exception in~~
~~the form of a savings clause.320 The Court considered whether a person injured in a car accident~~

310 CRS Report R45825, Federal Preemption: A Legal Primer, supra ~~note 301~~, at 12–13 (summarizing judicial , at 12–13 (summarizing judicial
decisions in which the Supreme Court held that the phrase “law or regulation” did not include common law causes of decisions in which the Supreme Court held that the phrase “law or regulation” did not include common law causes of
action and that the term “requirements” encompassed common law causes of action, and noting that in one decision, the action and that the term “requirements” encompassed common law causes of action, and noting that in one decision, the
Court declined to decide whether the term “standard” included common law causes of action). Court declined to decide whether the term “standard” included common law causes of action).
~~311~~330 Id. at 11–12 (citing, at 11–12 (citing, inter alia, Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005)). , Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005)).
~~312~~331 See Altria Group, Inc. v. Good, 555 U.S. 70, 77 (2008) (stating that the presumption against preemption “applies Altria Group, Inc. v. Good, 555 U.S. 70, 77 (2008) (stating that the presumption against preemption “applies
with particular force when Congress has legislated in a field traditionally occupied by the States,” and that “when the with particular force when Congress has legislated in a field traditionally occupied by the States,” and that “when the
text of a pre-emption clause is susceptible of more than one plausible reading, courts ordinarily accept the reading that text of a pre-emption clause is susceptible of more than one plausible reading, courts ordinarily accept the reading that
disfavors pre-emption” (internal quotation marks and citation omitted)). disfavors pre-emption” (internal quotation marks and citation omitted)).
~~313~~332 See CRS Report R45825, CRS Report R45825, Federal Preemption: A Legal Primer, , supra note note ~~301~~320, at 3–6 (discussing the evolution of , at 3–6 (discussing the evolution of
the presumption against preemption); Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169, 1294 n.281 (11th Cir. the presumption against preemption); Graham v. R.J. Reynolds Tobacco Co., 857 F.3d 1169, 1294 n.281 (11th Cir.
2017) (Tjoflat, J., dissenting) (describing the presumption against preemption as “hotly debated, particularly when 2017) (Tjoflat, J., dissenting) (describing the presumption against preemption as “hotly debated, particularly when
applied to issues of statutory interpretation in cases involving express preemption”). applied to issues of statutory interpretation in cases involving express preemption”).
~~314~~333 Compare CTS Corp. v. Waldburger, 573 U.S. 1, 19 (2014) (stating that the presumption against preemption CTS Corp. v. Waldburger, 573 U.S. 1, 19 (2014) (stating that the presumption against preemption
supports “a narrow interpretation” of an express preemption provision “where plausible” and using the presumption as supports “a narrow interpretation” of an express preemption provision “where plausible” and using 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. Tax-Free Tr., 136 S. Ct. 1938, 1946 (2016) Puerto Rico v. Franklin Cal. Tax-Free Tr., 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)).
~~315~~334 See Geier v. Am. Honda Motor Co., 529 U.S. 861, 869, 874 (2000) (holding that an express preemption provision Geier v. Am. Honda Motor Co., 529 U.S. 861, 869, 874 (2000) (holding that an express preemption provision
did not, by itself, “foreclose or limit the operation of ordinary pre-emption principles,” including implied preemption). did not, by itself, “foreclose or limit the operation of ordinary pre-emption principles,” including implied preemption).
~~316 Arizona v. United States, 567 U.S. 387, 406 (2012).~~
~~317 Id. at 399 (internal quotation marks omitted) (quoting Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132,~~
~~142–43 (1963)).~~
~~318 Id. (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).~~
~~319 Kansas v. Garcia, 140 S. Ct. 791, 804 (2020) (quoting R.J. Reynolds Tobacco Co. v. Durham County, 479 U.S. 130,~~
~~140 (1986)).~~
~~320 Geier, 529 U.S. at 870. See infra “Savings Clauses.”~~
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Congressional Research Service 52 link to page 59 Understanding Federal Legislation settled” principle of conflict preemption,335 which occurs when “compliance with both federal and state regulations is a physical impossibility,”336 or because “the challenged state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.’”337 Also, 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 for supplementary state legislation.’”338 In Geier v. American Honda Motor Co., the Court invoked implied, conflict preemption principles in analyzing a federal statute that contained a preemption clause and an exception in the form of a savings clause.339 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.~~321~~340 A federal motor vehicle safety standard in place at the time allowed manufacturers to A federal motor vehicle safety standard in place at the time allowed 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.~~322~~341 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.~~323~~342 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 liability under common law.’”person from any liability under common law.’”~~324~~343 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.”~~325~~344 However, the However, the
Court did not construe the savings clause to allow Court did not construe the savings clause to allow all state tort actions, finding that ordinary state tort actions, finding that ordinary
principles of conflict preemption applied.principles of conflict preemption applied.~~326~~345 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.~~327~~346 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 alleged that the manufacturers had to use one specific device—an airbag—that the claim, which alleged 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.~~328~~
~~Savings Clauses~~
~~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.329 Savings clauses may appear in~~
~~their own bill sections or alongside the substantive provisions that they modify (for example, as~~
~~exceptions to general rules).330 Uses for savings clauses include:~~
~~1. non-preemption—that is, preserving state or local authority to regulate in a given~~
~~area;331~~

~~321 Geier, 529 U.S. at 864–65, 875, 878–79.~~
322 Id.
~~323 Id. at 867 (quoting 15 U.S.C. § 1392(d) (1988 ed.)).~~
~~324 Id. at 868 (quoting 15 U.S.C. § 1397(k) (1988 ed.)).~~
~~325~~347 335 Arizona v. United States, 567 U.S. 387, 406 (2012). 336 Id. at 399 (internal quotation marks omitted) (quoting Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142–43 (1963)). 337 Id. (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). 338 Kansas v. Garcia, 140 S. Ct. 791, 804 (2020) (quoting R.J. Reynolds Tobacco Co. v. Durham County, 479 U.S. 130, 140 (1986)). 339 Geier, 529 U.S. at 870. See infra “Savings Clauses.” 340 Geier, 529 U.S. at 864–65, 875, 878–79. 341 Id. 342 Id. at 867 (quoting 15 U.S.C. § 1392(d) (1988 ed.)). 343 Id. at 868 (quoting 15 U.S.C. § 1397(k) (1988 ed.)). 344 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 declined to minimum safety achieved by a federal regulation intended to provide a floor”). For this reason, the Court declined to
reach the threshold question of whether a tort claim premised on an airbag requirement constituted a “safety standard” reach the threshold question of whether a tort claim premised on an airbag 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.
~~326~~345 Id. at 869–70. at 869–70.
~~327~~346 Id. at 874. at 874.
~~328~~347 Id. at 878–81. Four Justices dissented. While they agreed that the savings clause preserved state common-law tort at 878–81. Four Justices dissented. While they agreed that the savings clause preserved state common-law tort
claims, they argued that the majority should have applied the judicial presumption against preemption and found that claims, they argued that the majority should have applied the judicial presumption against preemption and found that
the car manufacturer failed to meet its burden to show how the federal standard implicitly preempted the petitioners’ the car manufacturer failed to meet its burden 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).
~~329~~Congressional Research Service 53 link to page 60 Understanding Federal Legislation Savings Clauses 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.348 Savings clauses may appear in their own bill sections or alongside the substantive provisions that they modify (for example, as exceptions to general rules).349 Uses for savings clauses include: 1. non-preemption—that is, preserving state or local authority to regulate in a given area;350 2. preserving rights, claims, or entitlements “that would otherwise be lost” in legislation repealing an existing law, as in the example in Figure 20 below;351 3. exempting certain existing entities or conduct—permanently, temporarily, or on a conditional basis—from the reach of otherwise applicable provisions;352 and 4. preserving federal laws or standards that might otherwise be deemed in conflict with or superseded by the new law.353 348 See Saving Clause, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “saving clause”, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “saving clause” or “savings clause” as a or “savings clause” as a
“statutory provision exempting from coverage something that would otherwise be included”); FILSON & STROKOFF, “statutory provision exempting from coverage something that would otherwise be included”); FILSON & STROKOFF,
supra note 37, at 177 (“A savings clause allows specified persons or groups already operating in the area covered by note 37, at 177 (“A savings clause allows specified persons or groups already operating in the area covered by
the bill to continue their established operations as though the bill had not been enacted, or addresses particular the bill to continue their established operations as though the bill had not been enacted, or addresses 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.”).
~~330~~349 FILSON & STROKOFF, FILSON & STROKOFF, supra note 37, at 177.note 37, at 177.
~~331~~350 See, e.g., Climate Solutions Act of 2017, H.R. 2958, 115th Cong., at 9–12 (as introduced, June 20, 2017), , Climate Solutions 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 including a savings clause stating that “[n]othing in this title promulgate certain annual emission reduction targets and including a savings 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 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, 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 section 514(a) of ERISA contains an express preemption clause stating that “[e]xcept as provided in subsection (b) of
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~~2. preserving rights, claims, or entitlements “that would otherwise be lost” in~~
~~legislation repealing an existing law, as in the example in Figure 20 below;332~~
~~3. exempting certain existing entities or conduct—permanently, temporarily, or on a~~
~~conditional basis—from the reach of otherwise applicable provisions;333 and~~
~~4. preserving federal laws or standards that might otherwise be deemed in conflict~~
~~with or superseded by the new law.334~~

this section, the provisions of this title and title IV shall supersede any and all State laws insofar as they may now or this section, the provisions of this title and title IV shall supersede any and all State laws 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 “savings clause,” which states that “[e]xcept § 1144(a). Subsection (b)(2)(A) contains what courts have referred to as a “savings clause,” which states that “[e]xcept
as provided in subparagraph (B), nothing in this title shall be construed to exempt or relieve any person from any law of as provided in subparagraph (B), nothing in this title shall be construed to exempt or relieve any person from any law of
any State which regulates insurance, banking, or securities.” any State which 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 established in our case law that a state law must be ‘specifically directed Miller, 538 U.S. 329, 334 (2003) (“It is well established in our case law that a state law must be ‘specifically directed
toward’ the insurance industry in order to fall under ERISA’s savings clause; laws of general application that have toward’ the insurance industry in order to fall under ERISA’s savings clause; laws of general application that have
some bearing on insurers do not qualify.”). some bearing on insurers do not qualify.”). See generally Alan Untereiner, Alan Untereiner, The Defense of Preemption: A View from
the Trenches, 84 TUL. L. REV. 1257, 1269–70 (2010) (providing examples of ways in which Congress , 84 TUL. L. REV. 1257, 1269–70 (2010) (providing examples of ways 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).
~~332~~351 Saving Clause, BLACK’S LAW DICTIONARY (11th ed. 2019). , BLACK’S LAW DICTIONARY (11th ed. 2019).
~~333~~352 See, e.g., Southeast Hurricanes Small Business Disaster Relief Act of 2011, S. 653, 112th Cong. § 2(b) (as , Southeast Hurricanes Small Business Disaster Relief Act of 2011, S. 653, 112th Cong. § 2(b) (as
introduced, Mar. 28, 2011), https://www.congress.gov/112/bills/s653/BILLS-112s653is.pdf (proposing to change the introduced, Mar. 28, 2011), https://www.congress.gov/112/bills/s653/BILLS-112s653is.pdf (proposing to change the
eligibility criteria and terms of a disaster relief loan program but providing that a loan refinanced under the existing eligibility criteria and terms of a disaster relief loan program but providing that a loan refinanced under the existing
program before the bill’s enactment date “shall remain in full force and effect under the terms, and for the duration, of program before the bill’s enactment date “shall remain in full force and effect under the terms, and for the duration, of
the loan”). Savings clauses of this type are sometimes referred to as “grandfather clauses.”the loan”). Savings clauses of this type are sometimes referred to as “grandfather clauses.” See FILSON & STROKOFF, FILSON & STROKOFF,
supra note 37, at 177 (noting that savings clauses are “sometimes called ‘grandfather clauses,’” a term with roots in note 37, at 177 (noting that savings clauses are “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 eligible to vote”); Alan Greenblatt, been eligible 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.
~~334~~353 See, e.g., Water and Energy Sustainability through Technology Act, H.R. 3275, 115th Cong., at 76 (as introduced, , Water and Energy Sustainability through Technology Act, H.R. 3275, 115th Cong., at 76 (as introduced,
July 17, 2017), https://www.congress.gov/115/bills/hr3275/BILLS-115hr3275ih.pdf#page=76 (stating that the act July 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), https://www.congress.gov/115/bil s/s504/BILLS-115s504enr.pdf#page=3. (as enrol ed), 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.~~335 But even~~354 Even in preserving existing in preserving existing
ones, savings clauses can pose challenging interpretive issues for the courts because they are ones, savings clauses can pose challenging interpretive issues for the courts because they are
unlikely to provide definitive instructions for how the law applies in every situation.unlikely to provide definitive instructions for how the law applies in every situation.~~336~~355 For For
example, in example, 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 generally protects two federal statutes: the National Labor Relations Act (NLRA)—which generally 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 generally requires courts to enforce arbitration Federal Arbitration Act (Arbitration Act)—which generally requires courts to enforce arbitration
agreements.agreements.~~337~~356 A key issue was whether a savings clause in the Arbitration Act allowed courts to A key issue was whether a savings clause in the Arbitration Act allowed 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.~~338~~357 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.”.”~~339~~358 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

~~335~~354 See, e.g., Musson Theatrical v. Fed. Express Corp., 89 F.3d 1244, 1252 (6th Cir. 1996) (stating that the “existence of , Musson Theatrical v. Fed. Express Corp., 89 F.3d 1244, 1252 (6th Cir. 1996) (stating that the “existence of
a general savings clause in a federal statute does not license a court to create a federal cause of action when the plaintiff a general savings clause in a federal statute does not license a court to create a federal cause 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. LEXIS 1626 (6th Cir. Jan. 15, 1998); Roth v. Cox, 210 F.2d 76, 79 (5th Cir. 1954) (“The saving 5120, 1998 U.S. App. LEXIS 1626 (6th Cir. Jan. 15, 1998); Roth v. Cox, 210 F.2d 76, 79 (5th Cir. 1954) (“The saving
clause neither creates substantive rights in itself nor assents to their creation by the state.”), clause 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).
~~336~~355 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 by examining the statute “as blocked the operation of the Clean Water Act’s preemption language in a specific scenario by examining the statute “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) (“Whatever the usefulness of relying Chamber of Commerce of the United States v. Whiting, 563 U.S. 582, 599 (2011) (“Whatever the usefulness of relying
on legislative history materials in general, the arguments against doing so are particularly compelling here. Beyond on legislative history materials in general, the arguments against doing 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 discuss the saving clause at all.”). Control Act] save one fail to discuss the saving clause at all.”).
~~337~~356 138 S. Ct. 1612 (2018). 138 S. Ct. 1612 (2018).
~~338~~357 Id. at 1622. at 1622.
~~339~~358 Id. (quoting 9 U.S.C. § 2 (emphasis added)). (quoting 9 U.S.C. § 2 (emphasis added)).
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defense to arbitration. defense to arbitration.~~340~~359 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,”,”~~341~~360 unlike unlike
“generally applicable contract defenses, such as fraud, duress, or unconscionability.”“generally applicable contract defenses, such as fraud, duress, or unconscionability.”~~342~~361 In In
contrast, the dissent argued that the savings clause allowed an NLRA-based defense to contrast, the dissent argued that the savings clause allowed an NLRA-based defense to
enforcement of an arbitration agreement, reasoning that “[i]llegality is a traditional, generally enforcement of an arbitration agreement, reasoning that “[i]llegality is a traditional, generally
applicable contract defense.”applicable contract defense.”~~343~~362
Timing Rules
By default, a bill takes effect upon enactment; that is: (1) when the President signs the bill into By default, a bill takes effect upon enactment; that is: (1) when the President signs the bill into
law; (2) when the bill becomes a law because the President has not signed the bill within ten days law; (2) when the bill becomes a law because the President has not signed the bill 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.~~344~~363
And by default, an enacted bill remains the law until repealed, amended, or superseded by another And by default, an enacted bill remains the law until repealed, amended, or superseded by another
law.law.~~345~~364 However, Congress can specify an alternative effective date in the bill or period in which However, Congress can specify an alternative effective date in the bill 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.~~346~~365
Effective Dates
As previously noted, a bill may include one or more effective dates indicating when the bill as a As previously noted, a bill may include one or more effective dates indicating when the bill as a
whole, or certain provisions of it, take effect. These examples illustrate various forms of effective whole, or certain provisions of it, take effect. These examples illustrate various forms of effective
dates: dates:
1. “This Act and the amendments made by this Act shall take effect 60 days after 1. “This Act and the amendments made by this Act shall take effect 60 days after
the date of the enactment of this Act.” the date of the enactment of this Act.”~~347~~366
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 shall take effect upon enactment.” Act shall take effect upon enactment.”~~348~~367
3. “The amendments made by this section shall apply to taxable years beginning 3. “The amendments made by this section shall apply to taxable years beginning
after December 31, 2017.” after December 31, 2017.”~~349~~368

~~340~~359 Id. at 1621–23. at 1621–23.
~~341~~360 Id. at 1622 (emphasis added) (quoting 9 U.S.C. § 2). at 1622 (emphasis added) (quoting 9 U.S.C. § 2).
~~342~~361 Id. (quoting AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011)). (quoting AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011)).
~~343~~362 Id. at 1645at 1645 (Ginsburg, J., dissenting). (Ginsburg, J., dissenting).
~~344~~363 See Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991) (“It is well established that, absent a clear direction by Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991) (“It is well established that, absent a clear direction by
Congress to the contrary, a law takes effect on the date of its enactment.”). Congress 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.
~~345~~364 See supra “How a New Act Affects Existing Law.” ”
~~346~~365 For example, once Congress has delegated a particular decision to the executive branch, it cannot maintain control For example, once Congress has delegated a particular decision to the executive branch, it cannot maintain control
over that decision without going through the “finely wrought and exhaustively considered” procedures of bicameralism over that decision without going through the “finely wrought and exhaustively considered” procedures of bicameralism
and presentment. INS v. Chadha, 462 U.S. 919, 951, 954–55 (1983) (“Disagreement with the Attorney General’s and presentment. INS v. Chadha, 462 U.S. 919, 951, 954–55 (1983) (“Disagreement with the Attorney General’s
decision on Chadha’s deportation—that is, Congress’ decision to deport Chadha—no less than Congress’ original decision on Chadha’s deportation—that is, Congress’ decision 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
Congress can implement in only one way; bicameral passage followed by presentment to the President. Congress must Congress can implement in only one way; bicameral passage followed by presentment to the President. Congress must
abide by its delegation of authority until that delegation is legislatively altered or revoked.”); abide by its delegation of authority until that delegation is legislatively altered or revoked.”); see also Clinton v. City of Clinton v. City of
New York, 524 U.S. 417, 448 (1998)New 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 “cancel” a provision of a previously enacted law under certain circumstances, were unconstitutional). the President to “cancel” a provision of a previously enacted law under certain circumstances, were unconstitutional).
~~347~~366 United States-Cuba Normalization Act of 2017, H.R. 2966, 115th Cong. § 9 (as introduced, United States-Cuba Normalization Act of 2017, H.R. 2966, 115th Cong. § 9 (as introduced, ~~Jun.~~June 20, 2017), 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.
~~348~~ 367 ARTICLE ONE Act, H.R. 1755, 116th Cong. § 7 (as introduced, Mar. 14, 2019), https://www.congress.gov/116/ ARTICLE 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. bills/hr1755/BILLS-116hr1755ih.pdf#page=17.
~~349~~368 S Corporation Modernization Act of 2017, H.R. 1696, 115th Cong. § 3(d) (as introduced, Mar. 23, 2017), S Corporation Modernization Act of 2017, H.R. 1696, 115th Cong. § 3(d) (as introduced, Mar. 23, 2017),
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4. “This Act shall take effect when the President certifies to the Congress that all 4. “This Act shall take effect when the President certifies to the Congress that 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.”~~350~~369
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.~~351~~370 Additionally, effective dates may be accompanied or qualified Additionally, effective dates may be accompanied or qualified
by provisions limiting the reach of new or amended requirements or prohibitions, such as a by provisions limiting 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.~~352~~371
Transitional Provisions
Transitional provisions in bills typically contain requirements that apply for a set time period. Transitional provisions in bills typically contain requirements that apply for a set time period.~~353~~372
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 allow time for the preparation and submission of reports to Congress or the or event to allow time for the preparation and submission of reports to Congress or the
promulgation of agency regulations.promulgation of agency regulations.~~354~~373
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.”~~355~~374 For example, the bill in For example, the bill in
Figure 21 would generally prohibit a principal supervisory inspector with the Federal Aviation would generally 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 bill would allow inspectors serving in that role as of the However, a transitional provision in the bill would allow inspectors serving in that role as of the
bill’s enactment date to continue their oversight responsibilities until the end of five consecutive bill’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 bill would years or for two years from the enactment date, whichever is later. Accordingly, the bill would
allow, for example, a principal supervisory inspector who was overseeing the same carrier for allow, 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.
~~350~~ 369 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.
~~351~~370 But cf. Marshall Field & Co. v. Clark, 143 U.S. 649, 668–69, 672 (1892) (declining to question the validity and Marshall Field & Co. v. Clark, 143 U.S. 649, 668–69, 672 (1892) (declining to question the validity and
legal force of “an enrolled act in the custody of the Secretary of State, and having the official attestations of the Speaker legal force of “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 the Senate, and of the President of the United States,” because it of the House of Representatives, of the President of the Senate, and of the President of the United States,” because it
did not contain a section reflected in the congressional record from the bill’s passage). did not contain a section reflected in the congressional record from the bill’s passage). See also supra note note ~~346~~365
(identifying potential constitutional limitations). (identifying potential constitutional limitations).
~~352~~371 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”).
~~353~~372 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 Fuller v. INS, 144 F. Supp. 2d 72, 76 (D. Conn. 2000) (explaining that the Fuller v. INS, 144 F. Supp. 2d 72, 76 (D. Conn. 2000) (explaining that the
Illegal Immigration Reform and Immigrant Responsibility Act “contains two sets of provisions, one transitional and the Illegal 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”).
~~354~~373 See, e.g., BUILD Act of 2018, H.R. 5105, 115th Cong. § 601 (as engrossed in the House, July 17, 2018), , BUILD Act of 2018, H.R. 5105, 115th Cong. § 601 (as engrossed in the House, July 17, 2018),
https://www.congress.gov/115/bills/hr5105/BILLS-115hr5105eh.pdf#page=601 (defining a “transition period” that https://www.congress.gov/115/bills/hr5105/BILLS-115hr5105eh.pdf#page=601 (defining a “transition period” that
begins on the date of enactment and ends on the effective date of a reorganization plan required by the bill). begins on the date of enactment and ends on the effective date of a reorganization plan required by the bill).
~~355~~374 FILSON & STROKOFF, FILSON & STROKOFF, supra note 37, at 176; note 37, at 176; see, e.g., Kai v. Ross, 336 F.3d 650, 651–52 (8th Cir. 2003) (analyzing , Kai v. Ross, 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); Tataranowicz v. Sullivan, 959 F.2d 268, 277 (D.C. Cir. 1992) (“Such certain persons for up to one year); Tataranowicz v. Sullivan, 959 F.2d 268, 277 (D.C. Cir. 1992) (“Such
grandfathering typically seeks to provide special relief for persons on whom the new regime might bear with unusual grandfathering typically seeks to provide special relief for persons on whom the new regime might bear with unusual
severity, because it specially disrupts their lives, usually because of decisions they are likely to have taken in reliance severity, because it specially disrupts their lives, usually because of decisions 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: FAA Reauthorization Act of 2009, H.R. 915, 111th Cong. § 334 (as referred in Senate, June 1, 2009), FAA Reauthorization Act of 2009, H.R. 915, 111th Cong. § 334 (as referred 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 bill is to “terminate[] all authority to carry out that law (or The purpose of a sunset provision in a bill is to “terminate[] all 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.”~~356~~375 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.~~357~~376 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.~~358~~377 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.~~359~~378

~~356~~375 FILSON & STROKOFF, FILSON & STROKOFF, supra note 37, at 180. note 37, at 180.
~~357~~376 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,
Congress had renewed a section of the PATRIOT Act with a sunset provision seven times). Congress had renewed a section of the PATRIOT Act with a sunset provision seven times).
~~358~~377 See, e.g., Cablevision Sys. Corp. v. FCC, 649 F.3d 695, 721 (D.C. Cir. 2011) (reasoning that Congress built a sunset , Cablevision Sys. Corp. v. FCC, 649 F.3d 695, 721 (D.C. Cir. 2011) (reasoning that Congress built a sunset
provision into an “exclusive contract prohibition” in a statute designed to increase competition in the cable industry provision into an “exclusive contract prohibition” in a statute designed to increase competition in the cable industry
because it “sought to balance the need for regulatory intervention in markets possessing significant barriers to because it “sought to balance the need for regulatory intervention in markets possessing significant barriers to
competition with its recognition that vertical integration and exclusive dealing arrangements are not always pernicious competition with its recognition that vertical integration and exclusive dealing arrangements are not always pernicious
and, depending on market conditions, may actually be procompetitive”). and, depending on market conditions, may actually be procompetitive”).
~~359~~378 See Laurence H. Tribe, Laurence H. 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 bill that, among other things, would require is an excerpt of a sunset provision from a bill 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 bill.and develop a “Family Caregiving Strategy” as specified in the bill.~~360~~379 Under the bill, such Under the bill, such
authority and obligations would end five years after the bill’s enactment.authority and obligations would end five years after the bill’s enactment.~~361~~380
Figure 22. Sunset Provision

Source: RAISE Family Caregivers Act, S. 1028, 115th Cong. § 6 (as referred in House, Sept. 27, 2017), RAISE Family Caregivers Act, S. 1028, 115th Cong. § 6 (as referred 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
invalidate the offending provision or provisions.invalidate the offending provision or provisions.~~362~~381 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.”~~363~~382 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.”~~364~~383 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.~~365~~384

Silence, 57 IND. L.J. 515, 528 (1982) (noting that sunset provisions “creat[e] situations in which , 57 IND. L.J. 515, 528 (1982) (noting that sunset provisions “creat[e] situations in which inaction by a future by a future
Congress will lead a law to Congress will lead a law to lapse when it would otherwise have survived”). when it would otherwise have survived”).
~~360~~379 RAISE Family Caregivers Act, S. 1028, 115th Cong. §§ 3–4 (as referred in House, Sept. 27, 2017), RAISE Family Caregivers Act, S. 1028, 115th Cong. §§ 3–4 (as referred in House, 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.
~~361~~ 380 Id. § 6. A related bill, H.R. 3759, became public law, with a three-year sunset. Pub. L. No. 115-119, § 6, 132 Stat. § 6. A related bill, H.R. 3759, became public law, with a three-year sunset. Pub. L. No. 115-119, § 6, 132 Stat.
23, 27 (2018). 23, 27 (2018).
~~362~~381 See, e.g., Murphy v. NCAA, 138 S. Ct. 1461, 1485 (2018) (Thomas, J., concurring) (explaining that because the , Murphy v. NCAA, 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. 220, 258 (2005) (emphasis removed))). statute we must sever and excise’” (quoting United States v. Booker, 543 U.S. 220, 258 (2005) (emphasis removed))).
~~363~~382 See Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2208 (2020) (plurality opinion) (internal Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2208 (2020) (plurality opinion) (internal
quotation marks omitted) (quoting Loeb v. Columbia Twp. Trs., 179 U.S. 472, 490 (1900)). quotation marks omitted) (quoting Loeb v. Columbia Twp. Trs., 179 U.S. 472, 490 (1900)).
~~364~~383 Free Enter. Fund v. Pub. Co. Account. Oversight Bd., 561 U.S. 477, 508 (2010) (internal quotation marks and Free Enter. Fund v. Pub. Co. Account. Oversight Bd., 561 U.S. 477, 508 (2010) (internal quotation marks and
citation omitted). citation omitted).
~~365~~384 Seila Law LLC, 140 S. Ct. at 2209; , 140 S. Ct. at 2209; see also Murphy, 138 S. Ct. at 1489 (Ginsburg, J., dissenting) (stating that , 138 S. Ct. at 1489 (Ginsburg, J., dissenting) (stating that
“[w]hen a statute reveals a constitutional flaw, the Court ordinarily engages in a salvage rather than a demolition “[w]hen a statute reveals a constitutional flaw, the Court ordinarily engages in a salvage rather than a demolition
operation”). operation”).
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The Court’s test for severability is well-settled: The Court’s test for severability is well-settled:~~366~~385 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 invalid part.would not have enacted the remainder of the statute independently of the invalid part.~~367~~386
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 judicially declared . . . of a . . . statute in force if any portion of that . . . statute is judicially declared . . .
unconstitutional.”unconstitutional.”~~368~~387
Figure 23. Severability Clause

Source: Puerto Rico Emergency Financial Stability Act of 2015, H.R. 4290, 114th Cong. § 4 (as introduced, Puerto Rico Emergency Financial Stability Act of 2015, H.R. 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 all but resolves the “elusive inquiry” into congressional intent by A clear severability clause all 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.~~369~~388 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.~~370~~389 Writing for a Writing for a
plurality of the Court,plurality of the Court,~~371~~390 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

~~366~~385 But see Murphy, 138 S. Ct. at 1487 (Thomas, J., concurring) (questioning the Court’s severability doctrine because, , 138 S. Ct. at 1487 (Thomas, 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 “Congress has not expressed its fallback position in the text” of the statute). where “Congress has not expressed its fallback position in the text” of the statute).
~~367~~386 E.g., Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987); Buckley v. Valeo, 424 U.S. 1, 108–09 (1976) (per , Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987); Buckley v. Valeo, 424 U.S. 1, 108–09 (1976) (per
curiam). curiam).
~~368~~387 Severability Clause, BLACK’S LAW DICTIONARY (11th ed. 2019). , BLACK’S LAW DICTIONARY (11th ed. 2019).
~~369~~388 INS v. Chadha, 462 U.S. 919, 932 (1983); INS v. Chadha, 462 U.S. 919, 932 (1983); e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 586 (2012) , Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 586 (2012)
(plurality opinion) (“The chapter of the United States Code that contains § 1396c includes a severability clause (plurality opinion) (“The chapter of the United States Code that contains § 1396c includes a severability clause
confirming that we need go no further [than limiting § 1396c’s enforcement]. That clause specifies that ‘[i]f any confirming that we need go no further [than limiting § 1396c’s enforcement]. That 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. § 1303)). (quoting 42 U.S.C. § 1303)).
~~370~~389 Seila Law LLC, 140 S. Ct. at 2209. , 140 S. Ct. at 2209. See also CRS Legal Sidebar LSB10507, CRS Legal Sidebar LSB10507, Supreme Court Rules CFPB Structure
Unconstitutional: Implications for Congress, by Jacob D. Shelly. , by Jacob D. Shelly.
~~371~~390 While the Court’s severability analysis was set forth in a plurality opinion authored by Chief Justice Roberts and While the Court’s severability analysis was set forth in a plurality opinion authored by Chief Justice Roberts and
joined by two Justices, four additional Justices who dissented from the constitutional holding nonetheless concurred in joined by two Justices, four additional Justices who dissented from the constitutional holding nonetheless concurred in
the Court’s severability judgment. the Court’s severability judgment. See id. at 564 (Kagan, J., dissenting) (“The outcome today will not shut down the at 564 (Kagan, J., dissenting) (“The outcome today will not shut down the
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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.’”~~372~~391 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.”~~373~~392
When a Bill Does Not Address Severability
When a bill does not address severability but amends an existing law, a severability clause in the When a bill 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.~~374~~393 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 robocalls but Consumer Protection Act of 1991 (TCPA)—a federal law that prohibited certain robocalls but
exempted government-debt collection calls—violated the First Amendment.exempted government-debt collection calls—violated the First Amendment.~~375~~394 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.”~~376~~395 In a plurality opinion, In a plurality opinion,~~377~~396 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.~~378~~397 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 robocall restriction and the the same chapter that now includes “the provision with the robocall restriction and the
government-debt exception.”government-debt exception.”~~379~~398 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 robocall restriction and the 2015 severability clause in 1934, “long before the TCPA’s 1991 robocall 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.”~~380~~399
If the legislation or the statute it amends lacks any severability clause, the absence of a If the legislation 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 presumption of inseverability..~~381~~400 In these circumstances, a court may look for other indicia of In these circumstances, a court may look for other indicia of

CFPB: A different majority of this Court, including all those who join this opinion, believes thatCFPB: A different majority of this Court, including all those who join this opinion, believes that if the agency’s the agency’s
removal provision is unconstitutional, it should be severed.”). removal provision is unconstitutional, it should be severed.”).
~~372~~391 Seila Law LLC, 140 S. Ct. at 2209 (plurality opinion) (quoting 12 U.S.C. § 5302). The plurality further reasoned that , 140 S. Ct. at 2209 (plurality opinion) (quoting 12 U.S.C. § 5302). The plurality further reasoned that
the remainder of the act was capable of operating independently of the unconstitutional removal provision. the remainder of the act was capable of operating independently of the unconstitutional removal provision. Id.
~~373~~392 Id. (internal quotation marks and citations omitted). (internal quotation marks and citations omitted).
~~374~~393 See, e.g., Barr v. Am. Ass’n of Pol. Consultants, 140 S. Ct. 2335, 2349 n.6 (2020) (plurality opinion) (“When , Barr v. Am. Ass’n of Pol. Consultants, 140 S. Ct. 2335, 2349 n.6 (2020) (plurality opinion) (“When
Congress enacts a law with a severability clause and later adds new provisions to that statute, the severability clause Congress enacts a law with a severability clause and later adds new provisions to that statute, the severability clause
applies to those new provisions to the extent dictated by the text of the severability clause.”). applies to those new provisions to the extent dictated by the text of the severability clause.”).
~~375~~394 Id. at 2343 (“[T]he Telephone Consumer Protection Act of 1991, known as the TCPA, generally prohibits robocalls at 2343 (“[T]he Telephone Consumer Protection Act of 1991, known as the TCPA, generally prohibits robocalls
to cell phones and home phones. But a 2015 amendment to the TCPA allows robocalls that are made to collect debts to cell phones and home phones. But a 2015 amendment to the TCPA allows robocalls that are made to collect debts
owed to or guaranteed by the Federal Government, including robocalls made to collect many student loan and mortgage owed to or guaranteed by the Federal Government, including robocalls made to collect many student loan and mortgage
debts.”). Justice Brett Kavanaugh wrote a plurality opinion on the First Amendment issue that was joined by three other debts.”). Justice Brett Kavanaugh wrote a plurality opinion on the First Amendment issue that was joined by three other
Justices, though, in total, “[s]ix Members of the Court . . . conclude[d] that Congress ha[d] impermissibly favored debt-Justices, though, in total, “[s]ix Members of the Court . . . conclude[d] that Congress ha[d] impermissibly favored debt-
collection speech over political and other speech, in violation of the First Amendment.” collection speech over political and other speech, in violation of the First Amendment.” Id.
~~376~~ 395 Id.
~~377~~396 This portion of Justice Kavanaugh’s opinion was joined by two other Justices, though seven Members of the Court This 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.
~~378~~397 Id. at 2352. at 2352.
~~379~~398 Id.
~~380~~399 Id.
~~381~~400 Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 (1987) (“In the absence of a severability clause . . . Congress’ 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.”). silence is just that—silence—and does not raise a presumption against severability.”).
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congressional intent in the statute’s text or legislative history. congressional intent in the statute’s text or legislative history.~~382~~401 The Justices in the The Justices in the Barr pluralityplurality
expressed their view that courts should avoid speculating about the enacting Congress’s intent 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 the and instead follow the Court’s “strong presumption of severability,” focusing on whether the
remainder of the statute is still “fully operative” as a law.remainder of the statute is still “fully operative” as a law.~~383~~402 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, the 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 exception, presumption of severability was not overcome because, without the government-debt exception,
the TCPA was “capable of functioning independently and thus would be fully operative as a the TCPA was “capable of functioning independently and thus would be fully operative as a
law.”law.”~~384~~403 The plurality reasoned that “the remainder of the robocall restriction The plurality reasoned that “the remainder of the robocall restriction did function function
independently and fully operate as a law for 20-plus years before the government-debt exception independently and fully operate as a law for 20-plus years before the government-debt exception
was added in 2015.”was added in 2015.”~~385~~404 This case, and decisions that it cites, suggest that “an unconstitutional This case, and decisions that it cites, suggest that “an unconstitutional
amendment to a prior law” amendment to a prior law” may be easier to sever than a provision that was central to the original be easier to sever than a provision that was central to the original
statutory scheme.statutory scheme.~~386~~405
In view of this presumption of severability, In view of this presumption of severability,~~387~~406 a court may focus on whether the statute can a court may focus on whether the statute can
operate without the invalid provision. In addition to the considerations discussed above relating to operate without the invalid provision. In addition to the considerations discussed above relating to
discrete, later-enacted amendments,discrete, later-enacted amendments,~~388~~407 relevant factors for this step of the analysis include relevant factors for this step of the analysis include
whether the invalid provision is “functionally independent” of the rest of the law so that its whether the invalid provision is “functionally 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;~~389~~408 and whether the act, as and whether the act, as
modified, “still serves Congress’ objective.”modified, “still serves Congress’ objective.”~~390~~409
For example, in For example, in Murphy v. NCAA, the Supreme Court considered whether to sever invalid , the Supreme Court considered whether to sever invalid
provisions in the Professional and Amateur Sports Protection Act (PASPA), a federal statute, in provisions in the Professional and Amateur Sports Protection Act (PASPA), a federal statute, in
the absence of an express severability clause.the absence of an express severability clause.~~391~~410 The provisions at issue barred states from The provisions at issue barred states from
authorizing and licensing sports gambling—prohibitions that, according to the Court, violated authorizing and licensing sports gambling—prohibitions that, according to the Court, violated
constitutional principles of federalism.constitutional principles of federalism.~~392~~411 Without these provisions, PASPA would have allowed Without these provisions, PASPA would have allowed
states to authorize private sports gambling, while prohibiting states from “operating” state-run 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 lotteries and prohibiting both states and private entities from “promoting” or “advertising” private

~~382~~401 See, e.g., New York v. United States, 505 U.S. 144, 186 (1992) (reasoning that “where Congress has enacted a , New York v. United States, 505 U.S. 144, 186 (1992) (reasoning that “where Congress has enacted a
statutory scheme for an obvious purpose, and where Congress has included a series of provisions operating as statutory scheme for an obvious purpose, and where Congress has included a series of provisions operating as
incentives to achieve that purpose, the invalidation of one of the incentives should not ordinarily cause Congress’ incentives to achieve that purpose, the invalidation of one of the incentives should not ordinarily cause Congress’
overall intent to be frustrated”). overall intent to be frustrated”).
~~383~~402 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).
~~384~~403 Id. at 2353. at 2353.
~~385~~404 Id. (emphasis added). (emphasis added).
~~386~~405 Id. (citing Frost v. Corp. Comm’n of Okla., 278 U.S. 515, 526–27 (1929); Truax v. Corrigan, 257 U.S. 312, 342 (citing Frost v. Corp. Comm’n of Okla., 278 U.S. 515, 526–27 (1929); Truax v. Corrigan, 257 U.S. 312, 342
(1921)). (1921)).
~~387~~406 See supra notes notes ~~383–84~~384–85 and accompanying text. and accompanying text.
~~388~~407 See supra notes notes ~~385–86~~404–05 and accompanying text. and accompanying text.
~~389~~408 United States v. Jackson, 390 U.S. 570, 586 (1968). United States v. Jackson, 390 U.S. 570, 586 (1968). Compare Free Enter. Fund v. Pub. Co. Account. Oversight Bd., Free Enter. Fund v. Pub. Co. Account. Oversight Bd.,
561 U.S. 477, 509 (2010) (invalidating certain statutory protections against board members’ removal from office but 561 U.S. 477, 509 (2010) (invalidating certain statutory protections against board members’ removal from office but
concluding that the “Sarbanes-Oxley Act remains ‘fully operative as a law’ with these tenure restrictions excised” concluding 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) (reasoning that because the state statutory Wyoming v. Oklahoma, 502 U.S. 437, 460 (1992) (reasoning that because the state statutory
provision applied to “all entities” providing electric power in the state and contained “no parts or separate provisions,” provision applied to “all entities” providing electric power in the state and contained “no parts or separate provisions,”
once the court struck that provision, “[n]othing remain[ed] to be saved” and the law had to “stand or fall as a whole”). once the court struck that provision, “[n]othing remain[ed] to be saved” and the law had to “stand or fall as a whole”).
~~390~~409 New York v. United States, 505 U.S. 144, 187 (1992). New York v. United States, 505 U.S. 144, 187 (1992).
~~391~~410 Murphy v. NCAA, 138 S. Ct. 1461 (2018); Murphy v. NCAA, 138 S. Ct. 1461 (2018); see also Pub. L. No. 102-559, 106 Stat. 4227 (1992) (codified at Pub. L. No. 102-559, 106 Stat. 4227 (1992) (codified at
28 U.S.C. §§ 3701–04). 28 U.S.C. §§ 3701–04).
~~392~~411 Murphy, 138 S. Ct. at 1478; , 138 S. Ct. at 1478; see also CRS Legal Sidebar LSB10133, CRS Legal Sidebar LSB10133, The Supreme Court Bets Against
Commandeering: Murphy v. NCAA, Sports Gambling, and Federalism, by Jay B. Sykes. , by Jay B. Sykes.
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sports gambling authorized under state law. sports gambling authorized under state law.~~393~~412 The Court found it “unlikely” that Congress would The Court found it “unlikely” that Congress would
have adopted this alternative statutory scheme,have adopted this alternative statutory scheme,~~394~~413 in part because it would create a “strange rule” in part because it would create a “strange rule”
that makes private sports gambling unlawful only in states that authorized private sports that makes private sports gambling unlawful only in states that authorized private sports
gambling.gambling.~~395~~414 In sum, the In sum, the Murphy Court decided that breaking up PASPA would replace a Court decided that breaking up PASPA would replace a
“coherent federal policy” with a puzzling one.“coherent federal policy” with a puzzling one.~~396~~415
Determining whether a statute is fully operative as a law without a particular provision can be 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 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 essential health insurance coverage requirement in the 2010 Patient Protection and Affordable
Care Act (ACA), commonly known as the “individual mandate.”Care Act (ACA), commonly known as the “individual mandate.”~~397~~416 Although the Supreme Court Although the Supreme Court
ultimately dismissed the case on standing grounds in 2021,ultimately dismissed the case on standing grounds in 2021,~~398~~417 the lower courts’ rulings highlight the lower courts’ rulings highlight
the complexities of analyzing severability in multifaceted statutes, and thus may inform future the complexities of analyzing severability in multifaceted statutes, and thus may inform future
legislative drafting decisions regarding express severability provisions. legislative drafting decisions regarding express severability provisions.
In 2012, the Supreme Court upheld the individual mandate as a valid exercise of Congress’s In 2012, the Supreme Court upheld the individual mandate as a valid exercise of Congress’s
taxing power.taxing power.~~399~~418 After Congress reduced the tax penalty for noncompliance to zero in 2017, a 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.group of states and individuals again challenged the constitutionality of the individual mandate.~~400~~419
In 2018, the U.S. District Court for the Northern District of Texas held that because of the 2017 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 amendment, the individual mandate was “no longer fairly readable as an exercise of Congress’s
Tax Power” and was therefore unconstitutional.Tax Power” and was therefore unconstitutional.~~401~~420
The court next considered whether the individual mandate was “severable from the rest of the The court next considered whether the individual mandate was “severable from the rest of the
ACA.”ACA.”~~402~~421 The district court began its severability analysis by examining the text of the ACA for 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 an indication of Congress’s intent as to whether a court should sever an unconstitutional
provision.provision.~~403~~422 In the court’s view, the ACA’s text “plainly” showed that the individual mandate In the court’s view, the ACA’s text “plainly” showed that the individual mandate
was “essential” to the ACA and thus inseverable.was “essential” to the ACA and thus inseverable.~~404~~423 The court declined to separate and uphold the 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’” 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.”and create “an entirely new regulatory scheme never intended by Congress.”~~405~~424

~~393~~412 Murphy, 138 S. Ct. at 1482–85 (internal quotation marks and alterations omitted). , 138 S. Ct. at 1482–85 (internal quotation marks and alterations omitted).
~~394~~413 Id. at 1482–83. at 1482–83.
~~395~~414 Id. at 1483. at 1483.
~~396~~415 Id. at 1483–84. at 1483–84.
~~397~~416 26 U.S.C. § 5000A; 26 U.S.C. § 5000A; see also Matthew Fiedler, 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. , HEALTHAFFAIRS (2020), https://www.healthaffairs.org/doi/10.1377/hlthaff.2019.01433.
~~398~~417 California v. Texas, 141 S. Ct. 2104, 2120 (2021); California v. Texas, 141 S. Ct. 2104, 2120 (2021); see also CRS Legal Sidebar LSB10610, CRS Legal Sidebar LSB10610, Supreme Court
Dismisses Challenge to the Affordable Care Act in California v. Texas. .
~~399~~418 Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 570–74 (2012). Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 570–74 (2012).
~~400~~419 CRS Legal Sidebar LSB10547, CRS Legal Sidebar LSB10547, California v. Texas: The Fate of the Affordable Care Act. .
~~401~~420 Texas v. United States, 340 F. Supp. 3d 579, 605 (N.D. Tex. 2018), Texas v. United States, 340 F. Supp. 3d 579, 605 (N.D. Tex. 2018), judgment entered, 352 F. Supp. 3d 665 (2018), , 352 F. Supp. 3d 665 (2018),
aff’d in part and vacated and remanded in part by 945 F.3d 355 (2019), 945 F.3d 355 (2019), vacated and remanded sub nom., , California, ,
141 S. Ct. 2104. 141 S. Ct. 2104.
~~402~~421 Id.
~~403~~422 Id. at 607. at 607.
~~404~~423 Id. at 608–09; at 608–09; see also 42 U.S.C. § 18091(2)(H)–(J) (congressional findings stating that the individual mandate was 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 “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. on the ACA and “historical context” supported this interpretation. Texas, 340 F. Supp. 3d at 610–17. , 340 F. Supp. 3d at 610–17.
~~405~~424 Id. at 614 (quoting R.R. Ret. Bd. v. Alton R.R., 295 U.S. 330, 362 (1935)). at 614 (quoting R.R. Ret. Bd. v. Alton R.R., 295 U.S. 330, 362 (1935)).
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On appeal, the Fifth Circuit agreed that the individual mandate was unconstitutional, but asked On appeal, the Fifth Circuit agreed that the individual mandate was unconstitutional, but asked
the district court to supplement its severability analysis.the district court to supplement its severability analysis.~~406~~425 The court of appeals advised the The court of appeals advised the
district court to determine first “whether the constitutional provisions—standing on their own, 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 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 Congress’s design, before asking if Congress “would have enacted the remaining provisions
without the unconstitutional portion.”without the unconstitutional portion.”~~407~~426 The panel acknowledged the difficulty of this analysis, The panel acknowledged the difficulty of this analysis,
remarking that “[s]everability doctrine places courts between a rock and a hard place” in seeking 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 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” 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 against their duty to “‘limit the solution to the problem’ by ‘refrain[ing] from invalidating more of
the statute than is necessary.’”the statute than is necessary.’”~~408~~427 These inquiries are “most demanding,” the court observed, “in These inquiries are “most demanding,” the court observed, “in
the context of sprawling (and amended) statutory schemes like” the ACA.the context of sprawling (and amended) statutory schemes like” the ACA.~~409~~428 The Fifth Circuit The Fifth Circuit
concluded that even with these challenges, the district court must “employ a finer-toothed comb 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 on remand and conduct a more searching inquiry into which provisions of the ACA Congress
intended to be inseverable from the individual mandate.”intended to be inseverable from the individual mandate.”~~410~~429
When a Bill Contains an Inseverability Clause
In contrast to a severability clause, an inseverability (or non-severability) clause (e.g 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 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 remainder of the statute—or at least some other designated portion of the statute—should fall
with it.with it.~~411~~430

~~406~~425 Texas v. United States, 945 F.3d 355, 369 (5th Cir. 2019), Texas v. United States, 945 F.3d 355, 369 (5th Cir. 2019), vacated and remanded sub nom., California v. Texas, 141 , California v. Texas, 141
S. Ct. 2104 (2021). S. Ct. 2104 (2021).
~~407~~426 Id. at 394 (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 509 (2010)). at 394 (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 509 (2010)).
~~408~~427 Id. (footnote omitted) (quoting Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328 (2006)). (footnote omitted) (quoting Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 328 (2006)).
~~409~~428 Id. at 396. at 396.
~~410~~429 Id. at 402. Subsequently, in at 402. Subsequently, in California v. Texas, the Supreme Court ruled that the state and individual plaintiffs , 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 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 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. constitutionality or severability of the individual mandate. Id. at 2112. at 2112.
~~411~~430 See Barr v. Am. Ass’n of Pol. Consultants, 140 S. Ct. 2335, 2349 (2020) (plurality opinion) (“Congress may include Barr v. Am. Ass’n of Pol. Consultants, 140 S. Ct. 2335, 2349 (2020) (plurality opinion) (“Congress may include
a a nonseverability clause, making clear that the unconstitutionality of one provision means the invalidity of some or all 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. 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; , 4 U.S.C. § 125;
note following 42 U.S.C. § 300aa-1; 94 Stat. 1797.”); MIKVA ET AL., note following 42 U.S.C. § 300aa-1; 94 Stat. 1797.”); MIKVA ET AL., supra note 7, at 86 (“An inseverability clause is 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 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 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: 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 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 legislature to preserve the coexistence of separate provisions”). As shown in Figure 24, a bill may include an a bill may include an
inseverability clause under a section called “severability,” but for purposes of differentiating between the two types of 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.”provisions, this report uses the distinct terms “severability clause” and “inseverability clause.”
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Figure 24. Inseverability Clause

Source: American Indian Probate Reform Act of 2004, Pub. L. No. 108-374, § 9, 118 Stat. 1773, 1810 (2004) (S. 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. 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 The Supreme Court has not definitively ruled on the weight that courts should give inseverability
clauses. However, in clauses. However, in Barr (the TCPA case discussed above), the plurality placed these clauses on (the TCPA case discussed above), the plurality placed these clauses on
par with severability clauses in terms of enunciating Congress’s intent.par with severability clauses in terms of enunciating Congress’s intent.~~412~~431 The plurality stated that The plurality stated that
absent “extraordinary circumstances,” a court “should adhere to the text of the severability or 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 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 what the enacting Congress wanted if one provision of the law were later declared
unconstitutional.”unconstitutional.”~~413~~432 This opinion echoed what the Court said in dicta in a 1982 decision when it 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 suggested that inseverability clauses allow courts to avoid “speculat[ion]” about what the
enacting legislatures intended.enacting legislatures intended.~~414~~433 In that case, the Court was interpreting a state statute and In that case, the Court was interpreting a state statute and
remanded the severability question for the state court to decide.remanded the severability question for the state court to decide.~~415~~434 In subsequent appellate cases, In subsequent appellate cases,
some courts have also treated inseverability clauses like severability clauses, reasoning that they 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 give rise to a presumption about what the legislature intended (i.e., in the case of an inseverability
clause, a presumption clause, a presumption against invalidating only the offending portion of the law). invalidating only the offending portion of the law).~~416~~435
Technical and Conforming Amendments
When a bill would amend the organization or language of an existing law, congressional drafters 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 may include technical or conforming amendments to address anticipated inconsistencies. For

~~412~~431 Barr, 140 S. Ct. at 2349 (plurality opinion). Barr, 140 S. Ct. at 2349 (plurality opinion).
~~413~~432 Id.
~~414~~433 Zobel v. Williams, 457 U.S. 55, 65 (1982) (“Here, we need not speculate as to the intent of the Alaska Legislature; 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, 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.”). it is of course for the Alaska courts to pass on the severability clause of the statute.”).
~~415~~434 Id.
~~416~~435 See, e.g., Biszko v. RIHT Fin. Corp., 758 F.2d 769, 773 (1st Cir. 1985) (noting that the “Rhode Island legislature , 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 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”); ultimately bind a court, it establishes a presumption of non-severability”); see also Eric S. Fish, Eric S. Fish, Severability as
Conditionality, 64 EMORY L.J. 1293, 1336–37 (2015), 64 EMORY L.J. 1293, 1336–37 (2015) (arguing that courts should give effect to clear inseverability (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 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, have argued that inseverability clauses infringe on the judiciary’s role of construing statutes); Friedman, supra note note
~~411~~430, at 920–23 (proposing that courts treat clear inseverability clauses as “dispositive,” rather than invoking a mere , 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 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 legislature to enforce a legislative compromise and to ensure that the provision [in question] and the remainder of the
statute operate in tandem”). statute operate in tandem”).
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instance, a bill that seeks to add a new definition in alphabetical order to a definitions section of 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 an existing statute may need to include a technical amendment directing that the subsequent
definitions be renumbered. In the example idefinitions be renumbered. In the example in Figure 25, the bill seeks to add the term he bill seeks to add the term
“derivative” as paragraph 9 in an alphabetically arranged definitions section of the Commodity “derivative” as paragraph 9 in an alphabetically arranged definitions section of the Commodity
Exchange Act.Exchange Act.~~417~~436 A technical amendment in the bill re-designates paragraphs 9 through 34 of that 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. 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, 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. Oct. 13, 2009), https://www.congress.gov/111/bil s/hr3795/BILLS-111hr3795ih.pdf#page=2.
A bill might also include a conforming amendment if a change that it proposes warrants a similar A bill 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 ichange in another division of the statute or in another law. In the example in Figure 26, the re-he 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~~436 See 7 U.S.C. § 1a (2009). 7 U.S.C. § 1a (2009).
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Figure 26. Conforming Amendment

Source: Federal Communications Commission Consolidated Reporting Act of 2012, H.R. 3310, 112th Cong. Federal Communications Commission Consolidated Reporting Act of 2012, H.R. 3310, 112th Cong.
§ 3(e) (as referred in Senate, June 4, 2012), https://www.congress.gov/112/bil s/hr3310/BILLS-§ 3(e) (as referred in Senate, June 4, 2012), https://www.congress.gov/112/bil s/hr3310/BILLS-
112hr3310rfs.pdf#page=6. 112hr3310rfs.pdf#page=6.
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.~~418~~437 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 will be obvious to the reader. Sometimes, the changes are only apparent conforming amendment will 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 generally does not statutory scheme as a whole. But, in the Supreme Court’s words, Congress generally does not
“hide elephants in mouseholes”“hide elephants in mouseholes”~~419~~438 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.~~420~~439
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.~~421~~440 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

~~418~~437 See, e.g., United States v. Elec. Data Sys. Fed. Corp., 857 F.2d 1444, 1447 (Fed. Cir. 1988) (stating that the court , United States v. Elec. Data Sys. Fed. Corp., 857 F.2d 1444, 1447 (Fed. Cir. 1988) (stating that the court
was “loath to give a technical amendment substantive effect that would undermine the Postal Service’s independence was “loath to give a technical amendment substantive effect that would undermine the Postal Service’s independence
that ‘was a part of Congress’ general design’” (citation omitted)). that ‘was a part of Congress’ general design’” (citation omitted)).
~~419~~438 Cyan, Inc. v. Beaver Cty. Emps. Ret. Fund, 138 S. Ct. 1061, 1071 (2018) (quoting Whitman v. Am. Trucking Cyan, Inc. v. Beaver Cty. Emps. Ret. Fund, 138 S. Ct. 1061, 1071 (2018) (quoting Whitman v. Am. Trucking
Ass’ns, 531 U.S. 457, 468 (2001)). Ass’ns, 531 U.S. 457, 468 (2001)).
~~420~~439 Id. (alteration in original) (quoting Dir. of Revenue of Mo. v. CoBank ACB, 531 U.S. 316, 324 (2001)). (alteration in original) (quoting Dir. of Revenue of Mo. v. CoBank ACB, 531 U.S. 316, 324 (2001)).
~~421~~440 See Asociacion de Empleados del Area Canalera v. Pan. Canal Comm’n, 329 F.3d 1235, 1240 n.3 (11th Cir. 2003) Asociacion de Empleados del Area Canalera v. Pan. Canal Comm’n, 329 F.3d 1235, 1240 n.3 (11th Cir. 2003)
(describing party’s “generalization that technical and conforming amendments never make substantive changes in the (describing party’s “generalization that technical and conforming amendments never make substantive changes in the
law” as “simply unwarranted” and unsupported by Supreme Court precedent); Mudge v. United States, 308 F.3d 1220, law” as “simply unwarranted” and unsupported by Supreme Court precedent); Mudge v. United States, 308 F.3d 1220,
1229 (Fed. Cir. 2002) (applying “the usual tools of statutory construction” to evaluate whether the “affirmative 1229 (Fed. Cir. 2002) (applying “the usual tools of statutory construction” to evaluate whether the “affirmative
addition” of a word to a statutory provision through a “technical and conforming amendment” made substantive addition” of a word 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)).
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punishable by imprisonment for more than one year” under such laws.” under such laws.~~422~~441 The petitioner in the The petitioner in the
case argued that he was not subject to a mandatory sentencing enhancement for a prior “felony 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 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.than one year, constituted a misdemeanor rather than a felony under state law.~~423~~442 He argued that He argued that
Congress did not actually remove the requirement that the prior offense constitute a felony, but Congress did not actually remove the requirement that the prior offense constitute a felony, but
merely merely added a requirement that the prior offense carry a term of imprisonment greater than one 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 year, pointing to the inclusion of the amendment among other “conforming amendments” in the
enacting bill.enacting bill.~~424~~443 The Court rejected the petitioner’s interpretation, reasoning that “Congress did The Court rejected the petitioner’s interpretation, reasoning that “Congress did
not disavow any intent to make substantive changes; rather, the amendments were ‘conforming’ 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 because they harmonized sentencing provisions” in the Controlled Substances Act with another
federal drug statute.federal drug statute.~~425~~444 The Court further reasoned that “[t]reating the amendments as The Court further reasoned that “[t]reating the amendments as
nonsubstantive would be inconsistent with their text.nonsubstantive would be inconsistent with their text.~~426~~445
Authorization of Appropriations
A bill whose substantive provisions would require the expenditure of federal funds may include a A bill whose substantive provisions would require the expenditure of federal funds may include a
section authorizing appropriations (e.gsection authorizing appropriations (e.g., Figure 27).~~427~~446 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 bill may still include an express “authorization of appropriated for that purpose,” a bill may still 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.”~~428~~447
Although authorization is part of the appropriations process,Although authorization is part of the appropriations process,~~429~~448 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.”Treasury.”~~430~~449

~~422~~441 553 U.S. 124, 133–35 (2008) (internal quotation marks and citations omitted). 553 U.S. 124, 133–35 (2008) (internal quotation marks and citations omitted).
~~423~~442 Id. at 126. at 126.
~~424~~443 Id. at 134–35. at 134–35.
~~425~~444 Id. at 135. at 135.
~~426~~445 Id.
~~427~~ 446 See generally CRS Report CRS Report ~~R42098, Authorization of Appropriations: Procedural and Legal Issues, supra note 268.~~
~~428~~R47106, The Appropriations Process: A Brief Overview, by James V. Saturno and Megan S. Lynch, supra note 283. 447 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”).
~~429~~ 448 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) “organic legislation”—that is, “legislation that creates an agency, establishes a program, or prescribes a function”; (1) “organic legislation”—that is, “legislation that creates an agency, establishes a program, or prescribes a function”;
(2) “authorization of appropriations, if not contained in the organic legislation”; and (3) “the appropriation act.” U.S. (2) “authorization of appropriations, 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. Ct. 1308, 1319 (2020) (“Creating and satisfying a Me. Cmty. Health Options v. United States, 140 S. Ct. 1308, 1319 (2020) (“Creating and satisfying a
Government obligation, therefore, typically involves four steps: (1) Congress passes an organic statute . . . that creates a Government obligation, therefore, typically involves four steps: (1) Congress passes an organic statute . . . that creates a
program, agency, or function; (2) Congress passes an Act authorizing appropriations; (3) Congress enacts the program, agency, or function; (2) Congress passes an Act authorizing appropriations; (3) Congress enacts the
appropriation, granting “budget authority” to incur obligations and make payments, and designating the funds to be appropriation, granting “budget authority” to incur obligations and make payments, and designating the funds to be
drawn; and (4) the relevant Government entity begins incurring the obligation.”). drawn; and (4) the relevant Government entity begins incurring the obligation.”).
~~430~~ 449 GAO, GAO, supra note note ~~429~~448, 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 ‘budget authority,’ which grants agencies authority to enter into financial obligations that will result in providing ‘budget 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 law authorizing the at 2-3 (explaining that “an appropriation is a law authorizing the
payment of funds from the Treasury”); payment of funds from the Treasury”); see also CRS Report CRS Report ~~R42098,~~ ~~Authorization of Appropriations: Procedural and~~
~~Legal Issues~~, supra ~~note 268, at 1 (stating that “[b]y itself . . . an authorization~~ R47106, The Appropriations Process: A Brief Overview, by James V. Saturno and Megan S. Lynch, supra note 283 (stating that “by itself an authorization of appropriations does not provide funding for government does not provide funding for government
activities”). activities”).
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Figure 27. Authorization of Appropriations

Source: Border Security for America Act of 2017, H.R. 3548, 115th Cong. § 151 (as reported in House, Border Security for America Act of 2017, H.R. 3548, 115th Cong. § 151 (as reported 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.~~431~~450 In addition, congressional rules “generally prohibit the reporting of an In addition, congressional rules “generally prohibit the reporting of an
appropriation in a general appropriation bill for expenditures not previously authorized by appropriation in a general appropriation bill for expenditures not previously authorized by
law.”law.”~~432~~451 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
congressionally enacted appropriation substantively invalid; though noncompliance may make an congressionally enacted appropriation substantively invalid; though noncompliance may make an
appropriations bill moving through the House or Senate susceptible to a procedural challenge.appropriations bill moving through the House or Senate susceptible to a procedural challenge.~~433~~

~~431 See GAO, supra note 429, at 2-55; CRS Report R42098,~~ ~~Authorization of Appropriations: Procedural and Legal~~
~~Issues, supra note 268, at 8–9 (“There is no constitutional or general statutory requirement that an appropriation must~~
~~be preceded by a specific act that authorized the appropriation. . . . A few statutes, however, require that funds to carry~~
~~out particular activities may not be appropriated unless they have been specifically authorized.”).~~
~~432 GAO, supra note 429,~~ ~~at 2-55~~452 Even so, “an authorization act is more than an academic exercise.”453 Unless altered in the 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 450 GAO, supra note 448, at 2-55. 451 Id. (citing House Rule XXI(2)(a)(1) and Senate Rule XVI). (citing House Rule XXI(2)(a)(1) and Senate Rule XVI).
~~433~~452 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.”434 Unless altered in the~~
~~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~~
~~nature of the work authorized.”435~~nature of the work authorized.”454 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.~~436~~455
Common Terms, Phrases, and Interpretive Issues
This section of the report discusses terms and phrases commonly used in federal legislation and This section of the report discusses terms and phrases commonly used in federal legislation 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 bill drafting identified by the Office of the Legislative Counsel for the U.S. House of in bill 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 online In 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.~~437~~456
“Means” Versus “Includes”
When legislation includes defined terms, the definitions typically begin by stating that a certain When legislation includes defined terms, the definitions typically 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” generally prefaces a non-exhaustive list.an exclusive definition while “includes” generally prefaces a non-exhaustive list.~~438~~457 However, However,
context is important.context is important.~~439~~458 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”

~~434 Id. at 2-57.~~
435 Id.
~~436~~in some places in a statute but not others, a court could interpret “includes,” when used in 454 Id. 455 See, e.g.,, U.S. Dep’t of the Air Force v. Fed. Labor Rels. Auth., 648 F.3d 841, 846–48 (D.C. Cir. 2011)U.S. Dep’t of the Air Force v. Fed. 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
allowances did not authorize expenditures for uniform cleaning services, and thus Air Force had no obligation to allowances did not authorize expenditures for uniform cleaning services, and thus Air Force had no obligation to
bargain with union regarding such services). bargain with union regarding 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 applied only to projects enumerated in the act, observing that Congress recommendations from the tribal councils applied 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).
~~437~~456 See HOLC Guide to Legislative Drafting, , supra note 18. note 18.
~~438~~457 Id.; ; see also Burgess v. United States, 553 U.S. 124, 130 (2008) (“As a rule, [a] definition which declares what a Burgess v. United States, 553 U.S. 124, 130 (2008) (“As a rule, [a] definition which declares what a
term ‘means’ . . . excludes any meaning that is not stated.” (alterations in original) (quoting Colautti v. Franklin, 439 term ‘means’ . . . excludes any meaning that is not stated.” (alterations in original) (quoting Colautti v. Franklin, 439
U.S. 379, 392–93 n.10 (1979))); United States v. Wyatt, 408 F.3d 1257, 1261 (9th Cir. 2005) (reasoning that the “use U.S. 379, 392–93 n.10 (1979))); United States v. Wyatt, 408 F.3d 1257, 1261 (9th Cir. 2005) (reasoning that the “use
of the word ‘includes’” in the statutory definition “suggests the list [of items that follows] is non-exhaustive rather than of the word ‘includes’” in the statutory definition “suggests the list [of items that follows] is non-exhaustive rather than
exclusive”). exclusive”).
~~439~~458 Courts construing the word “including” in non-definitional provisions have observed that “[d]epending on context, Courts construing the word “including” in non-definitional provisions have observed that “[d]epending on context,
the word ‘including’ can be either illustrative or enlarging.” New York v. Dep’t of Justice, 951 F.3d 84, 102 (2d Cir. the word ‘including’ can be either illustrative or enlarging.” New 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]he term “including” is perhaps more often than not the introductory term for an incomplete list [T]he term “including” is perhaps more often than not the introductory term for an incomplete list
of examples. Thus, when we say that several colors, “including red, blue and yellow” are in the of examples. Thus, when we say that several colors, “including red, blue and yellow” are in the
rainbow, we are giving only examples, and we do not mean that the rainbow does not include other rainbow, we are giving only examples, and we do not mean that the rainbow does not include other
colors. In that sense, an “including” clause is illustrative. However, the term “including” can also colors. In that sense, an “including” clause is illustrative. However, the term “including” can also
introduce restrictive or definitional terms. If we say that “all licensed drivers, including introduce restrictive or definitional terms. If we say that “all licensed drivers, including applicants
for driver’s licenses, shall take an eye exam,” the word “including” means “and” or “in addition for driver’s licenses, shall take an eye exam,” the word “including” means “and” or “in addition
to.” That meaning is derived from the fact that a “licensed driver,” by definition, excludes an to.” That 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~~
“applicant,” and therefore if we intend to include applicants we must say so. Adams v. Dole, 927 F.2d 771, 776–77 (4th Cir. 1991). Congressional Research Service 70 Understanding Federal Legislation isolation, as introducing an exhaustive list.isolation, as introducing an exhaustive list.~~440~~459 This result is because courts generally presume that This result is because courts generally 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.”~~441~~460 In addition, the object of “includes” in any given In addition, the object of “includes” in any given
definition can still limit the scope of that definition. Because the terms in the list are illustrative, definition can still limit the scope of that definition. Because the terms in the list are illustrative,
persons or things that do not share common traits with those terms may not be considered to fall persons or things that do not share common traits with those terms may not be considered to 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.~~442~~461 While acknowledging that “the While acknowledging that “the
word ‘include’ can signal that the list that follows is meant to be illustrative rather than word ‘include’ can signal that the list that follows is meant to be illustrative rather than
exhaustive,” the Court reasoned that the definition “still” did not “encompass officials, because exhaustive,” the Court reasoned that the definition “still” did not “encompass officials, because
the types of defendants listed are all entities.”the types of defendants listed are all entities.”~~443~~462
“Shall” Versus “May”
Congressional drafters typically use the term “shall” to denote that an action is required and Congressional drafters typically use the term “shall” 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.~~444~~463 Usually, one can silently Usually, one can silently
substitute the word “must” for “shall” when reading a bill provision, but not always. For example, substitute the word “must” for “shall” when reading a bill provision, but not always. For example,
a bill that reads, “no person shall commit a crime”a bill that reads, “no person shall commit a crime”~~445~~464 cannot be translated literally as “no person cannot be translated literally 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.~~446~~465 In this example, In this example,
“no person shall commit a crime” means “no person “no person shall 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. Additionally, whether “shall” denotes a commit a crime; crimes are prohibited. Additionally, whether “shall” denotes a
command depends on context.command depends on context.~~447~~466 A bill that reads, “the Secretary shall have the authority to adopt A bill that reads, “the Secretary shall have the authority to adopt

~~“applicant,” and therefore if we intend to include applicants we must say so.~~
~~Adams v. Dole, 927 F.2d 771, 776–77 (4th Cir. 1991).~~
~~440~~rules” does not mean that the Secretary must adopt rules; it simply authorizes her to adopt rules because of the inclusion of the words “have the authority to” after “shall.”467 459 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 “using it in some places out of an abundance of caution could cause a limitation to be read into redundant,” but that “using it in some places out of an abundance of caution could cause a limitation to be read into
places where it is not used”); places where it is not used”); cf. Williamson v. J.C. Penney Life Ins. Co., 226 F.3d 408, 410 (5th Cir. 2000) (finding Williamson v. J.C. Penney Life Ins. Co., 226 F.3d 408, 410 (5th Cir. 2000) (finding
that “[l]ittle meaning can be gleaned” from the word “includes” in the parties’ insurance contract because the contract that “[l]ittle meaning can be gleaned” from the word “includes” in the parties’ insurance contract because the contract
used the term “means” and the phrase “includes, but is not limited to” in other places); used 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 following ‘includes, but is not limited to’” demonstrates that the former introduced “a complete, or immediately following ‘includes, but 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”).
~~441~~460 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 of a (noting the “‘cardinal principle’ of interpretation that courts ‘must give effect, if possible, to every clause and word of a
statute’” (quoting Williams v. Taylor, 529 U.S. 362, 404 (2000))). statute’” (quoting Williams v. Taylor, 529 U.S. 362, 404 (2000))).
~~442~~461 Samantar v. Yousuf, 560 U.S. 305, 314, 317–19 (2010). Samantar v. Yousuf, 560 U.S. 305, 314, 317–19 (2010).
~~443~~462 Id. at 317–18 (noting that other contextual clues in the act supported this interpretation). at 317–18 (noting that other contextual clues in the act supported 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”).
~~444~~463 HOLC Guide to Legislative Drafting, , supra note 18; note 18; see also Kingdomware Techs., Inc. v. United States, 136 S. Ct. Kingdomware Techs., Inc. v. United States, 136 S. Ct.
1969, 1977 (2016) (“Unlike the word ‘may,’ which implies discretion, the word ‘shall’ usually connotes a 1969, 1977 (2016) (“Unlike the word ‘may,’ which implies discretion, the word ‘shall’ usually connotes a
requirement.”); requirement.”); see, e.g., NLRB v. SW Gen., Inc., 137 S. Ct. 929, 940 (2017) (describing statutory provision stating , NLRB v. SW Gen., 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 self-executing”).that the first assistant to a vacant office “shall perform” acting duties as “mandatory and self-executing”).
~~445~~464 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).
~~446~~465 See Bryan A. Garner, Bryan A. Garner, Shall We Abandon Shall?, ABA JOURNAL (Aug. 1, 2012), https://www.abajournal.com/, ABA JOURNAL (Aug. 1, 2012), https://www.abajournal.com/
magazine/article/shall_we_abandon_shall (“What about laws stating that ‘No person shall . . . ?’ If magazine/article/shall_we_abandon_shall (“What about laws stating that ‘No person shall . . . ?’ If shall means ‘has a means ‘has a
duty to’ or ‘is required to,’ we have a problem. We’re negating a command to do something: You’re not required to do duty to’ or ‘is required to,’ we have a problem. We’re negating a command to do something: You’re not required to do
it (but, by implication, you may if you like).”). it (but, by implication, you may if you like).”).
~~447~~ 466 See Trumball Invs. Ltd. I v. Wachovia Bank, N.A., 436 F.3d 443, 447 (4th Cir. 2006) (“The word ‘shall’ cannot be Trumball 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 words around it help elucidate the overall meaning of the clause.”). interpreted in a vacuum, . . . and the words around it help elucidate the overall meaning of the clause.”).
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~~rules” does not mean that the Secretary must adopt rules; it simply authorizes her to adopt rules~~
~~because of the inclusion of the words “have the authority to” after “shall.”448~~
467 See id. (“‘Shall in its discretion’ has an entirely different meaning than ‘shall’ standing alone. Any other Congressional Research Service 71 Understanding Federal Legislation While “shall” and “may” usually have distinct meanings, the terms “shall not” and “may not” While “shall” and “may” usually have distinct meanings, the terms “shall not” and “may not”
both prohibit conduct.both prohibit conduct.~~449~~468 Even so, HOLC recommends the latter phrasing to avoid “arcane” Even so, HOLC recommends the latter phrasing to avoid “arcane”
alternative interpretations potentially associated with “shall not.”alternative interpretations potentially associated with “shall not.”~~450~~469
Singular and Plural
Unless the context suggests otherwise, a bill’s use of a term in its singular form includes the Unless the context suggests otherwise, a bill’s use of a term in its singular form includes the
plural and vice versa.plural and vice versa.~~451~~470 For example, if a law prohibits “a pharmacist” from knowingly selling For example, if a law prohibits “a pharmacist” from knowingly selling
“misbranded drugs,” it would also prohibit several pharmacists from knowingly selling a single “misbranded drugs,” it would also prohibit several pharmacists from knowingly selling 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.”~~452~~471 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.~~453~~472
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 “‘all or a substantial portion’ of the statute prohibiting the supply of “‘all or a substantial portion’ of the components of a patented of a patented
invention for combination abroad.”invention for combination abroad.”~~454~~473 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 invention under the statute.could never constitute a “substantial portion” of the invention under the statute.~~455~~474 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.”~~456~~475 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.~~457~~476 However, the Court held that the statute’s “text, context, and structure” However, the Court held that the statute’s “text, context, and structure”

~~448 See id. (“‘Shall in its discretion’ has an entirely different meaning than ‘shall’ standing alone. Any other~~
demonstrate that “when Congress said ‘components,’ plural, it meant plural, and when it said interpretation would treat ‘in its discretion’ as mere surplusage, which courts are disinclined to do.”). interpretation would treat ‘in its discretion’ as mere surplusage, which courts are disinclined to do.”).
449 See 468 See Brown v. Davenport, No. 20-826, 2022 U.S. LEXIS 2096, at *23–24 (U.S. Apr. 21, 2022) (construing a federal statute stating that a court “shall not” grant habeas relief unless certain conditions are satisfied to mean that a federal court “must deny relief” if the petitioner does not meet those conditions); Key Med. Supply, Inc. v. Burwell, 764 F.3d 955, 958 (8th Cir. 2014) (reasoning that “Congress granted Key Med. Supply, Inc. v. Burwell, 764 F.3d 955, 958 (8th Cir. 2014) (reasoning that “Congress granted
relatively unconstrained authority to the Agency as to many issues, while narrowly defining and limiting authority as to relatively unconstrained authority to the Agency as to many issues, while narrowly defining and limiting authority as to
other issues” through “the statute’s use of the terms ‘may’ to identify factors for the Agency’s discretionary other issues” 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”).
~~450~~469 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 use of “may not” for denying a right, privilege, or power, and “shall not” for directing that an action 62 (recommending use 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 “distinction may be made that ‘shall not’ speaks to the person subject to the prohibition not be taken, but noting that a “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 argue that ‘A person shall not’ note 37, at 286 (“One could also argue 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)).
~~451~~470 See 1 U.S.C. § 1 (setting out “[r]ules of construction” for the 1 U.S.C. § 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, unless the context indicates otherwise—words importing the singular include and meaning of any Act of Congress, unless the context indicates otherwise—words importing the singular include and
apply to several persons, parties, or things” and “words importing the plural include the singular”). apply to several persons, parties, or things” and “words importing the plural include the singular”).
~~452~~471 1 U.S.C. § 1. 1 U.S.C. § 1. See supra notes notes ~~222–25~~223–34 and accompanying text for a discussion of the Dictionary Act. and accompanying text for a discussion of the Dictionary Act.
~~453~~472 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 violation occurs only when multiple drivers run multiple red provision “Drivers may not run red lights” to mean that a violation occurs only when multiple drivers run multiple red
lights). lights).
~~454~~473 Life Techs. Corp. v. Promega Corp., 137 S. Ct. 734, 737 (2017) (emphasis added) (quoting 35 U.S.C. § 271(f)(1)). Life Techs. Corp. v. Promega Corp., 137 S. Ct. 734, 737 (2017) (emphasis added) (quoting 35 U.S.C. § 271(f)(1)).
~~455~~474 Id. at 739–41, 743. at 739–41, 743.
~~456~~475 Id. at 741. at 741.
~~457~~476 Id. at 742. at 742.
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~~demonstrate that “when Congress said ‘components,’ plural, it meant plural, and when it said~~
‘component,’ singular, it meant singular.”‘component,’ singular, it meant singular.”~~458~~477 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 especially provision in the statute separately prohibited the supply of a single component “that is especially
made or especially adapted for use in the invention” under certain circumstances.made or especially adapted for use in the invention” under certain circumstances.~~459~~478 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 little room for [its companion provision], but would also undermine [the would not only leave little room for [its companion provision], but would also undermine [the
companion provision’s] express reference to a single component ‘especially made or especially companion provision’s] express reference to a single component ‘especially made or especially
adapted for use in the invention.’”adapted for use in the invention.’”~~460~~479 The Court has also cautioned that the rule of construction regarding words importing the singular or plural “does not transform every use” of a singular article “a” or “an” into the plural denoting “several.”480 Instead, the Court explained, it allows a statutory provision framed in the singular to “apply to multiple persons, parties, or things,”481 such that, for example, “someone who vandalizes five banks could not avoid prosecution” under a statute making it a crime to vandalize “a” bank “on the ground that he vandalized more than one” bank.482
Reference Words
Another common interpretive issue in federal bills is determining the object of words that refer to 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, 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 reference words such as “this Act” can take on different meanings depending on the context in
which they are used.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 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 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.a freestanding provision (i.e., “outside the quotes”), it is likely referring to the bill itself.~~461~~483 If the If the
reference occurs in a provision amending an existing statute (i.e., “inside the quotes”), it is likely 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.referring to the underlying statute rather than to the bill.~~462~~484 For example, a bill entitled the “Justice For example, a bill entitled the “Justice
for Victims of Fraud Act of 2017” contains proposed amendments to the Truth in Lending Act in 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 section 3, proposed amendments to the Electronic Fund Transfer Act in section 4, and a
freestanding rule of construction in section 5.freestanding rule of construction in section 5.~~463~~485 The reference to “this section” in section 3 of the The reference to “this section” in section 3 of the
billbill (Figure 28) refers to the new § 140B that the bill would add to the Truth in Lending Act. The 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 billreference to “this section” in section 4 of the bill (Figure 29) refers to the new section 920A that 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 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~~477 Id.
~~459~~478 Id. at 741 (quoting 35 U.S.C. § 271(f)(2)). at 741 (quoting 35 U.S.C. § 271(f)(2)).
~~460~~479 Id. at 742. at 742.
~~461~~480 Niz-Chavez v. Garland, 141 S. Ct. 1474, 1482 (2021). 481 Id. 482 Id. 483 See FILSON & STROKOFF, FILSON & STROKOFF, supra note 37, at 333 (noting that references to “this Act” or a subdivision thereof are 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 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). clarity if there are nearby references to other acts or subdivisions).
~~462~~484 HOLC Guide to Legislative Drafting, , supra note 18 (noting that “references inside the quotes to ‘this Act’ are to the 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 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”). the statute being amended”).
~~463~~485 Justice for Victims of Fraud Act of 2017, H.R. 1414, 115th Cong. (as introduced, Mar. 7, 2017), 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.https://www.congress.gov/115/bills/hr1414/BILLS-115hr1414ih.pdf.
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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. 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), 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. https://www.congress.gov/115/bil s/hr1414/BILLS-115hr1414ih.pdf#page=3.
Congressional Research Service 74 Understanding Federal Legislation 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), 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. https://www.congress.gov/115/bil s/hr1414/BILLS-115hr1414ih.pdf#page=4.
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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), 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. 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 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 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, 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” 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 ingenerally 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 specify at the outset that references to “this Act” in a particular division refer only to the
provisions of that division. 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 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.), 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. 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 Lastly, the Supreme Court has held that the language “this section,” when used in a subsection of
a statute, refers to the a statute, refers to the entire statutory section where it is located rather than to a specific provision where it is located rather than to a specific provision
within that section.within that section.~~464~~486 And when the bill is amending a section of the And when the bill is amending a section of the U.S. Code, a reference to , a reference to

~~464~~486 See, e.g., NLRB v. SW Gen., Inc., 137 S. Ct. 929, 938–39 (2017) (“Congress often drafts statutes with hierarchical , 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 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 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. particular subsection or paragraph, it said so. See, e.g., § 3346(a)(2) (‘subsection (b)’); § 3346(b)(2) (‘paragraph (1)’). , § 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 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)). an acting officer.” (some internal citations omitted)).
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“this section” that is “inside the quotes” “this section” that is “inside the quotes”~~465~~487 generally refers to the generally refers to the U.S. Code section rather than section rather than
the separately numbered section of the bill that made that amendment.the separately numbered section of the bill that made that amendment.~~466~~488
“Any Other”
Congressional drafters regularly use the phrase “any other” to modify a noun to provide a catchall Congressional drafters regularly use the phrase “any other” to modify a noun to provide a catchall
for certain persons, laws, or conduct not specifically enumerated. For example, a requirement for for certain persons, laws, or conduct not specifically 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 seen as fruit. ordinarily 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,~~467~~489 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.~~468~~490 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.”~~469~~491
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.~~470~~492 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 naturally read because “Congress’ use of ‘any’ to modify ‘other law enforcement officer’ is most naturally read
to mean law enforcement officers of whatever kind.”to mean law enforcement officers of whatever kind.”~~471~~493 The Court rejected the petitioner’s The Court rejected the petitioner’s
argument that “any other law enforcement officer” should be read more narrowly, to refer only 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 “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 , 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 term should be understood as a reference to subjects akin to the one with specific
enumeration.’”enumeration.’”~~472~~494 The Court reasoned that the structure of the provision—specifically its 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”—reference to “any officers of customs or excise” and then “any other law enforcement officer”—

~~465~~487 See supra note 44 and accompanying text. note 44 and accompanying text.
~~466~~488 Rubin v. Islamic Republic of Iran, 138 S. Ct. 816, 826 (2018) (“[P]etitioners assert that ‘this section’ [in 28 U.S.C. 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 § 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 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 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 . . . 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 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 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.”). Congress’ failure to change ‘this section’ in § 1610(g) was the result of a mere drafting error.”).
~~467~~489 See United States v. Gonzales, 520 U.S. 1, 4–5, 11 (1997) (holding that a statute prohibiting a sentencing court from 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 “imposing a term of imprisonment for certain offenses concurrently with “any other term of imprisonment” applied to term of imprisonment” applied to
all terms of imprisonment, whether state or federal, because “the word ‘any’ has an expansive meaning” and “Congress all terms of imprisonment, whether state or federal, because “the word ‘any’ has an expansive meaning” and “Congress
did not add any language limiting [its] breadth” (emphasis added)); Harrison v. PPG Indus., 446 U.S. 578, 579, 587–89 did not add any language limiting [its] breadth” (emphasis added)); Harrison v. PPG Indus., 446 U.S. 578, 579, 587–89
(1980) (interpreting a statute providing for direct appellate review of certain locally and regionally applicable EPA (1980) (interpreting a statute providing for direct appellate review of certain locally and regionally applicable EPA
Administrator actions under specified statutory provisions and of “Administrator actions under specified statutory provisions and of “any other final action of the Administrator under of the Administrator under
[the] Act . . . which is locally or regionally applicable,” and holding that statute “must be construed to mean exactly [the] Act . . . which is locally or regionally applicable,” and holding that statute “must be construed to mean exactly
what it says, namely, what it says, namely, any other final action,” not just “those similar to the actions under the specifically enumerated final action,” not just “those similar to the actions under the specifically enumerated
provisions that precede that catchall phrase” (internal quotation marks and citations omitted)). provisions that precede that catchall phrase” (internal quotation marks and citations omitted)).
~~468~~490 552 U.S. 214, 215 (2008). 552 U.S. 214, 215 (2008).
~~469~~491 Id. at 216 (emphasis added) (quoting 28 U.S.C. § 2680). at 216 (emphasis added) (quoting 28 U.S.C. § 2680).
~~470~~492 Id. at 218. at 218.
~~471~~493 Id. at 219–20 (citing United States v. Gonzales, 520 U.S. 1 (1997) and Harrison v. PPG Indus., Incat 219–20 (citing United States v. Gonzales, 520 U.S. 1 (1997) and Harrison v. PPG Indus., Inc., 446 U.S. 578 , 446 U.S. 578
(1980)). (1980)).
~~472~~494 Id. at 223–24 (quoting Norfolk & W. R. Co. v. Train Dispatchers, 499 U.S. 117, 129 (1991)). at 223–24 (quoting Norfolk & W. R. Co. v. Train Dispatchers, 499 U.S. 117, 129 (1991)).
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“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.”~~473~~495 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.”~~474~~496
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.~~475~~497 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 traditionally assigned to was limited to those law enforcement officers who perform functions traditionally 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.~~476~~498
According to the dissent, had Congress intended to allow the government to invoke sovereign According to the dissent, had Congress intended to allow the government to invoke sovereign
immunity in cases involving property detention by any type of law enforcement officer, “in all immunity in cases involving property detention by any type of law enforcement officer, “in all
likelihood it would have drafted the section to apply to ‘any law enforcement officer, including likelihood 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.”~~477~~499
“Such” and “So”
Legislative drafters often use the word “such” as an adjective or pronoun to refer to a previously 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.described person, item, or action and thus avoid repeating a potentially lengthy phrase.~~478~~500 When When
used as an adjective, “such” takes on a “qualifying” purpose, limiting the noun it modifies to a used as an adjective, “such” takes on a “qualifying” purpose, limiting the noun it modifies to a
category of persons or things previously described.category of persons or things previously described.~~479~~501 While it can be easy to miss a single word 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 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.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~~502 In Boechler, P.C. v. Commissioner, the Court considered whether failure to meet a deadline in the Internal Revenue Code to petition for review of a specific type of agency decision (called a collection due process determination) deprived a reviewing court of jurisdiction over the matter.503 Because a filing deadline is procedural in nature, the Court applied its usual rule that it would treat the requirement as jurisdictional only if Congress “clearly states” that the requirement is jurisdictional.504 The provision in question stated that a “person may, within 30 days of a determination under this section [(i.e., a collection due process determination)] petition the Tax Court for review of such determination (and the Tax Court shall have jurisdiction with respect to 495 Id. at 225. 496 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 girl for the purpose of prostitution or debauchery, or for any other immoral purpose,” reasoning that woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose,” reasoning that
polygamous practices “are in the same genus as the other immoral practices covered by the Act”). polygamous practices “are in the same genus as the other immoral practices covered by the Act”).
~~475~~497 Ali, 552 U.S., 552 U.S. at 228–43 (Kennedy, J., dissenting). at 228–43 (Kennedy, J., dissenting).
~~476~~498 Id. at 232. at 232.
~~477~~499 Id.
~~478~~500 See, e.g., Sullivan v. Finkelstein, 496 U.S. 617, 627 (1990) (tracing the objects of the word “such” through multiple , Sullivan v. Finkelstein, 496 U.S. 617, 627 (1990) (tracing the objects of the word “such” through multiple
statutory provisions). statutory provisions).
~~479~~501 United States v. Bowen, 100 U.S. 508, 511–12 (1879) (interpreting the phrase “all such pensioners” in a statute to 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,” 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). which referred to pensioners who had not contributed to a specific fund).
~~480~~502 See, e.g., Littlefield v. Mashpee Wampanoag Indian Tribe, 951 F.3d 30, 37 (1st Cir. 2020) (considering whether the , 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). 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.
503 Boechler, P.C. v. Comm’r, No. 20-1472, 2022 U.S. LEXIS 2095, at *6–8 (U.S. Apr. 21, 2022). 504 Id. at *8. Congressional Research Service Congressional Research Service
7779 Understanding Federal Legislation such matter).”505 The key question was whether the language “such matter” conferred jurisdiction to review a collection due process determination or a timely filed collection due process determination.506 The Court observed that the key phrase, “such matter,” lacked a connection to another noun that provided “a clear antecedent.”507 The statutory language thus created “multiple plausible interpretations”508 whereby “such matter” could refer to (1) “such determination,” which, in turn, referred to a collection due process determination; (2) a “petition [to] the Tax Court for review of such determination” (the petitioner’s argument); or (3) a “petition” filed “within 30 days” of a collection due process determination (the government’s argument).509 Because of this ambiguity, the Court concluded that the 30-day filing deadline was not “clearly” jurisdictional.510 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.”).511 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.”).512 Alternatively, congressional drafters may use “so” as an adverb to refer to the

~~Understanding Federal Legislation~~

“manner or way” previously indicated or suggested,“manner or way” previously indicated or suggested,~~483~~513 as the Supreme Court observed in its 2021 as the Supreme Court observed in its 2021
decision in decision in Van Buren v. United States..~~484~~514
Van Buren involved the prosecution of a police sergeant for violating the Computer Fraud and involved the prosecution of a police sergeant for violating the Computer Fraud and
Abuse Act of 1986 (CFAA).Abuse Act of 1986 (CFAA).~~485~~515 The defendant had used his police credentials to obtain a license 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.plate number from a law enforcement database for an informant in exchange for money.~~486~~516 A jury A jury
convicted the defendant of “exceed[ing] authorized access” and obtaining information from a convicted the defendant of “exceed[ing] authorized access” and obtaining information from a
protected computer in violation of the CFAA.protected computer in violation of the CFAA.~~487~~517 Under the CFAA, “exceeds authorized access” Under the CFAA, “exceeds authorized access”
means “to access a computer with authorization and to use such access to obtain or alter 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.”information in the computer that the accesser is not entitled so to obtain or alter.”~~488~~518
Before the Supreme Court, the defendant and the government advanced two different Before the Supreme Court, the defendant and the government advanced two different
interpretations of the phrase “not entitled so to obtain.”interpretations of the phrase “not entitled so to obtain.”~~489~~519 Van Buren argued that “so” in this 505 Id. at *9 (quoting 26 U.S.C. § 6330(d)(1)). 506 Id. at *9–10. 507 Id. at *10. 508 Id. at *11. Both the petitioner’s and the government’s proffered interpretations treated “petition” as a noun contrary to its usage as a verb in the provision, but the Court nonetheless considered these interpretations plausible. Id. at *10. 509 Id. at *11. The Court also noted a fourth possibility concerning “matters” referenced in a preceding subsection. Id. 510 Id. at *12. 511 So, MERRIAM-WEBSTER.COM, https://www.merriam-webster.com/dictionary/so (last visited May 19, 2022). 512 Id. 513 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)). 514 Van Buren v. United States, 141 S. Ct. 1648 (2021). 515 Id. at 1653. 516 Id. 517 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. 518 18 U.S.C. § 1030(e)(6). 519 Van Buren, 141 S. Ct. at 1654. Congressional Research Service 80 Understanding Federal Legislation ~~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 provision “serves as a term of reference that recalls ‘the same manner as has been stated’ or ‘the
way or manner described.’”way or manner described.’”~~490~~520 In his view, the provision did not reach information that a person In his view, the provision did not reach information that a person
was entitled to obtain by “access[ing] a computer with authorization.”was entitled to obtain by “access[ing] a computer with authorization.”~~491~~521 Because the defendant Because the defendant
accessed a law enforcement database with valid police credentials, he argued that he had not accessed a law enforcement database with valid police credentials, he argued that he had not
“exceed[ed] authorized access” under the CFAA.“exceed[ed] authorized access” under the CFAA.~~492~~522 In contrast, the government read “so” to refer In contrast, the government read “so” to refer
to information that the defendant was not entitled to obtain “in the particular manner or to information that the defendant was not entitled to obtain “in the particular manner or
circumstances” in which the defendant obtained it.circumstances” in which the defendant obtained it.~~493~~523 Because the defendant obtained the license Because the defendant obtained the license
plate information for an improper purpose, the government argued, the defendant violated the plate information for an improper purpose, the government argued, the defendant violated the
CFAA.CFAA.~~494~~524
The Supreme Court held that Van Buren’s interpretation of “so” was “more plausible” than the The Supreme Court held that Van Buren’s interpretation of “so” was “more plausible” than the
government’s interpretation.government’s interpretation.~~495~~525 Writing for the majority, Justice Barrett observed that under the Writing for the majority, Justice Barrett observed that under the
government’s reading, “so” would reach “government’s reading, “so” would reach “any circumstance-based limit appearing circumstance-based limit appearing anywhere—in —in
the United States Code, a state statute, a private agreement, or anywhere else.”the United States Code, a state statute, a private agreement, or anywhere else.”~~496~~526 The Court The Court
reasoned that “so” is “not a free-floating term that provides a hook for any limitation stated 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.”anywhere” but instead “refers to a stated, identifiable proposition from the ‘preceding’ text.”~~497~~
527 Accordingly, the Court concluded, “the phrase ‘is not entitled so to obtain’ is best read to refer to 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 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).~~
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~~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~~access.”528 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.529 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. Definite and Indefinite Articles Statutory interpretation can sometimes turn on a single word—“a small one at that.”530 Courts have sometimes inferred meaning from a provision’s use of a definite article (i.e., “the”), an indefinite article (i.e., “a” or “an”), or the absence of one.531 For example, in 2021, the Supreme Court interpreted a federal immigration statute requiring the government to serve “written notice (in this section referred to as a ‘notice to appear’)” on individuals that the government sought to remove from the country.532 Service of “a notice to appear,” in turn, marked the point at which the 520 Id. (quoting BLACK’S LAW DICTIONARY 1246; 15 OXFORD ENGLISH DICTIONARY 887 (2d ed. 1989)). 521 Id. 522 Id. 523 Id. at 1654–55 (emphasis removed). 524 Id. 525 Id. at 1655. 526 Id. 527 Id. (quoting 15 OXFORD ENGLISH DICTIONARY, at 887). 528 Id. 529 Id. at 1662. 530 Niz-Chavez v. Garland, 141 S. Ct. 1474, 1486 (2021). 531 E.g., Cochise Consultancy, Inc. v. United States ex rel. Hunt, 139 S. Ct. 1507, 1514 (2019) (holding that the False Claims Act’s reference to “the official of the United States charged with responsibility to act in the circumstances” did not refer to a private relator standing in the shoes of the government, in part because “use of the definite article ‘the’ suggests that Congress did not intend” to refer to “any and all private relators”). 532 Niz-Chavez, 141 S. Ct. at 1478, 1480 (quoting § 1229(a)(1)). Congressional Research Service 81 link to page 8 Understanding Federal Legislation recipient stopped accruing time toward 10 years of continuous presence in the country—a prerequisite for discretionary relief from removal referred to as the “stop-time rule.”533 The government had argued that sending multiple notices that collectively contained the statutorily required information sufficed for purposes of triggering the stop-time rule.534 The Supreme Court disagreed, holding that the statute did not authorize this “piecemeal” approach because it required the government to send a single notice to appear.535 Beginning with the statutory text, the Court reasoned that to “an ordinary reader” the language “‘a’ notice would seem to suggest just that: ‘a’ single document containing the required information.”536 It did not matter that the statute required “written notice” because the same provision equated “written notice” with “a ‘notice to appear’”—again using the “singular article ‘a’.”537 The government and the dissent had also argued that the indefinite article “a” could refer to something “prepared in parts” such as a manuscript or a contract.538 To rebut this argument, the Court turned to “customary usage,” observing that indefinite articles usually “precede countable nouns” such as a “manuscript,” rather than “noncountable nouns” such as “cowardice” or “fun.”539 Because the word “notice” can “refer to either a countable object (‘a notice,’ ‘three notices’) or a noncountable abstraction (‘sufficient notice,’ ‘proper notice’),” the Court viewed Congress’s choice to use the word “a” as evidence of Congress’s intention to require “a single statutorily compliant document” in order to trigger the stop-time rule.540 “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.541 An example of such an instruction is a “notwithstanding clause.”542 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.’”543 Accordingly, when used in a bill, a notwithstanding clause “shows which provision prevails in the event of a clash.”544 533 Id. at 1478–79 (quoting § 1229b(d)(1)). 534 Id. at 1479. 535 Id. at 1479, 1486. 536 Id. at 1480. 537 Id. 538 Id. at 1481. 539 Id. (remarking that “few would speak of ‘a cowardice’ or ‘three funs’”). 540 Id. 541 See supra “How a New Act Affects Existing Law.” 542 Courts sometimes describe notwithstanding clauses as “repealing” conflicting laws, but a notwithstanding clause 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. technically does not formally repeal the laws that it references or with which it conflicts. E.g., Miccosukee Tribe of , 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 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”); “notwithstanding any other provision of law” as a “general repealing clause”); see generally Repeal, BLACK’S LAW , BLACK’S LAW
DICTIONARY (11th ed. 2019) (defining “repeal”DICTIONARY (11th ed. 2019) (defining “repeal” as “[a]brogation of an existing law by express legislative act”). as “[a]brogation of an existing law by express legislative act”).
~~502~~543 NLRB v. SW Gen., Inc., 137 S. Ct. 929, 939 (2017) (quoting WEBSTER’S THIRD NEW INT’L DICTIONARY 1545 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”)). (1986); BLACK’S LAW DICTIONARY 1091 (7th ed. 1999) (“Despite; in spite of”)).
~~503~~544 Id. (internal quotation marks omitted) (quoting ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE (internal quotation marks omitted) (quoting ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 126–27 (2012)). 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.~~
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~~an acting officer following a vacancy.507~~Congressional Research Service 82 Understanding Federal Legislation 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.545 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.546 The NLRB case concerned the complicated interplay between several provisions of the Federal Vacancies Reform Act of 1998.547 The act identified three classes of officials who could serve as an acting officer following a vacancy.548 Subsection (a)(1) set up a default rule requiring a certain 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 official to serve in the position unless the President selected an acting official from the categories
in subsections (a)(2) or (a)(3).in subsections (a)(2) or (a)(3).~~508~~549 Subsection (b) stated that “[n]otwithstanding subsection (a)(1),” Subsection (b) stated that “[n]otwithstanding subsection (a)(1),”
a person could a person could not serve as an acting officer once he was nominated by the President to fill the serve as an acting officer once he was nominated by the President to fill the
position.position.~~509~~550 The Supreme Court held that even though the notwithstanding clause only referenced 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 subsection (a)(1), the prohibition in the second half of the sentence also applied to an acting
officer serving under subsection (a)(3).officer serving under subsection (a)(3).~~510~~551 The notwithstanding phrase, the Court explained, “[did] The notwithstanding phrase, the Court explained, “[did]
not limit the [prohibition’s] reach” to persons serving under subsection (a)(1).not limit the [prohibition’s] reach” to persons serving under subsection (a)(1).~~511~~552 Instead, the Instead, the
phrase “clarifie[d] that the prohibition applies even when it conflicts with the default rule” set out phrase “clarifie[d] that the prohibition applies even when it conflicts with the default rule” set out
in subsection (a)(1).in subsection (a)(1).~~512~~553
Notwithstanding Specified Sections or Laws
When a requirement or prohibition applies “notwithstanding” another specified provision or law, 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-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 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 challenge by the Yakima Nation to a Washington statute that extended the state’s jurisdiction over
certain “Indians and Indian territory within the State.”certain “Indians and Indian territory within the State.”~~513~~554 The Yakima Nation argued that the 545 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”). 546 NLRB, 137 S. Ct. at 940. 547 Id. at 934–35. 548 Id. at 936. 549 See 5 U.S.C. § 3345(a) (2017). 550 See id. § 3345(b)(1). 551 ~~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 , 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 the President submitted his nomination to fill that position in a permanent capacity, subsection (b)(1) prohibited him
from continuing his acting service.”). from continuing his acting service.”).
~~511~~ 552 Id. at 938. at 938.
~~512~~553 Id.
~~513~~554 Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S. 463, 465 (1979). 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,~~
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Congressional Research Service 83 Understanding Federal Legislation “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.555 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 . . . .”556 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.”557 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.”558 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 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, 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 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 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 notwithstanding phrase foreclose the application of later-enacted laws? Resolution of these issues
largely depends on the context in which the language is used,largely depends on the context in which the language is used,~~518~~559 but a few general principles have but a few general principles have
emerged from the case law. emerged from the case law.
First, whether the phrase “notwithstanding any other provision of law” is meant to displace a 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 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 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 , 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 certain credits or refunds “notwithstanding any other law or rule of law,” displaced a state
property law.property law.~~519~~560 The state law did not relate to taxes specifically, but was a law generally 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.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~~561 555 Id. at 479–83. 556 Id. at 481 (emphasis added) (quoting Act of Aug. 15, 1953, Pub. L. No. 280, ch. 505, § 6, 67 Stat. 588, 590). 557 Id. at 487–88. 558 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 “notwithstanding any
other 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~~

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”).jurisdiction is precluded regardless of what any other provision or source of law might say”).
~~518~~559 See, e.g., United States v. Vasquez-Alvarez, 176 F.3d 1294, 1297–98 (10th Cir. 1999) (reasoning that it was , 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 “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 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 cases, courts have also examined the legislative history of a statute in interpreting the import of a notwithstanding
provision. In provision. In Golden Nugget, Inc. v. American Stock Exchange, Inc., for example, the Ninth Circuit considered , for example, the Ninth Circuit considered
whether, in enacting a provision granting the SEC authority to regulate the options market “notwithstanding any other 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 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 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 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 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.” the SEC could regulate options, not to exclude all other possible regulation.” Id. at 589. at 589.
~~519~~560 533 F.3d 1136, 1143 (9th Cir. 2008). 533 F.3d 1136, 1143 (9th Cir. 2008).
~~520~~561 Id. at 1138–39. Congressional Research Service 84 Understanding Federal Legislation 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.”562 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.”563 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.564 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.565 The court held that the prescribed remedies, which applied “notwithstanding any other provisions of law,” displaced the remedies traditionally available under federal maritime law.566 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.567 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.~~
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Second, the context of the language “notwithstanding any other provision of law” may suggest 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.that the statutory language that follows controls only in cases involving laws of a certain type.~~527~~568
In other words, the intent may not be “to disregard In other words, the intent may not be “to disregard every law on the books.”law on the books.”~~528~~569 For example, in For example, in
Oregon Natural Resources Council v. Thomas, the Ninth Circuit concluded that in the context of , 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 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 contracts “notwithstanding any other law” was “best interpreted as requiring the disregard only of
environmental laws, not all laws otherwise applicable to [such] sales.”environmental laws, not all laws otherwise applicable to [such] sales.”~~529~~570 Specifically, the court Specifically, the court
concluded that the notwithstanding phrase, standing alone, did not foreclose review of the concluded that the notwithstanding phrase, standing alone, did not foreclose review of the
agency’s action under the agency’s action under the ~~Administrative Procedure Act.530~~APA.571 In the court’s view, such an In the court’s view, such an
interpretation would render “nugatory” a separate provision providing for judicial review of 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.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~~572 562 Id. at 1140 (internal quotation marks omitted) (quoting Mansell v. Mansell, 490 U.S. 581, 587 (1989)). 563 Id. 564 Id. at 1144–45. 565 In re Complaint of Oswego Barge Corp., 664 F.2d 327, 339–40 (2d Cir. 1981). 566 Id. at 340. 567 Id. at 337–38, 340. 568 See, e.g., Marsh v. Rosenbloom, 499 F.3d 165, 177 (2d Cir. 2007) (holding that state statute barring suits against , 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 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 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 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 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 “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 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)). . . . shall be of no effect” (emphasis added) (internal quotation marks and citation omitted)).
~~528~~569 FILSON & STROKOFF, FILSON & STROKOFF, supra note 37, at 233 (stating, as an example, that “a provision that gives an official the 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 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”); 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 , 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”). ‘notwithstanding any other law’ is not always construed literally”).
~~529~~570 92 F.3d 792, 796 (9th Cir. 1996). 92 F.3d 792, 796 (9th Cir. 1996).
~~530~~571 Id. at 798 (holding that APA review was unavailable on other grounds). at 798 (holding that APA review was unavailable on other grounds).
~~531~~572 Id. at 797. at 797. But cf. Mission Critical Sols. v. United States, 91 Fed. Cl. 386, 397 (Fed. Cl. 2010) (distinguishing 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 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~~
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Congressional Research Service 85 Understanding Federal Legislation 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.573 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.”574 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.”575 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.576 Given these presumptions, unless the later-enacted statute clearly manifests Congress’s intent to Given these presumptions, unless the later-enacted statute clearly manifests Congress’s intent to
repeal the earlier notwithstanding clause by implication,repeal the earlier notwithstanding clause by implication,~~536~~577 a court may harmonize the two laws a court may harmonize the two laws
by ruling that the notwithstanding clause displaces the new law to the extent of any conflict.by ruling that the notwithstanding clause displaces the new law to the extent of any conflict.~~537~~578
Drafting Errors
Errors in drafting are inevitable, and the courts do not expect Congress to translate its objectives Errors in drafting are inevitable, and the courts do not expect Congress to translate its objectives
with absolute precision.with absolute precision.~~538~~579 When an error is obvious or When an error is obvious or ~~technical539~~technical580—such as a cross-reference to —such as a cross-reference to
a subdivision that is clearly inapplicable or does not exist—a court may construe the statute with a subdivision that is clearly inapplicable or does not exist—a court may construe the statute with
the correction in mind,the correction in mind,~~540~~581 or it may defer to the relevant agency’s interpretation of the provision at or it may defer to the relevant agency’s interpretation of the provision at
issue.issue.~~541~~582 For example, the Supreme Court has concluded that it is appropriate for courts to correct 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~~ 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”). 573 See, e.g., CRS Legal Sidebar LSB10526, PRWORA and the CARES Act: What’s the Prospective Power of a “Notwithstanding” Clause?, by Ben Harrington. 574 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). 575 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). 576 See Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990) (“We assume that Congress is aware of existing law when it passes legislation.”). 577 See supra notes 26–33 and accompanying text. 578 See, e.g., Mowbray v. Kozlowski, 914 F.2d 593, 594, 599 (4th Cir. 1990) (concluding that the phrase , 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 “‘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 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 Secretary of Health and Human Services’s “reasonable interpretation of the two provisions in issue which harmonizes
them”). them”).
~~538~~579 See Torres v. Lynch, 136 S. Ct. 1619, 1633 (2016) (“Rather than expecting (let alone demanding) perfection in 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 drafting, we have routinely construed statutes to have a particular meaning even as we acknowledged that Congress
could have expressed itself more clearly.”). could have expressed itself more clearly.”).
~~539~~580 See, e.g., King v. Burwell, 135 S. Ct. 2480, 2492 (2015) (noting that “the Act creates three separate Section 1563s”). , King v. Burwell, 135 S. Ct. 2480, 2492 (2015) (noting that “the Act creates three separate Section 1563s”).
~~540~~581 See Chickasaw Nation v. United States, 534 U.S. 84, 91 (2001) (“[I]n context, common sense suggests that the 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 cross-reference is simply a drafting mistake, a failure to delete an inappropriate cross-reference in the bill that Congress
later enacted into law.”); later enacted into law.”); cf. Michigan v. Bay Mills Indian Cmty., 695 F.3d 406, 416 n.1 (6th Cir. 2012) (construing an 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 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”). reference . . . to subsection 4.18(Y)” because “[s]ubsection 4.18(Z) does not provide the power to sue and be sued”).
~~541~~582 Cf. Valero Energy Corp. v. EPA, 927 F.3d 532, 534–36 (D.C. Cir. 2019) (declining to review the EPA’s 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~~
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~~link to page 40 link to page 48 link to page 10 link to page 10 link to page 77~~ ~~Understanding Federal Legislation~~

Congressional Research Service 86 Understanding Federal Legislation (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.”583 In the main, however, a court presumes that Congress “says what it means and means what it says,”584 and will not “rewrite” a statute through its interpretation simply because the law is imprecise, duplicative of another law, or contains a loophole.585 Sometimes it is not manifestly clear that a provision contains a drafting error,586 and a court has to decide whether the most natural reading of the provision accords with Congress’s intent.587 Some judges adhere closely to the text of the statute if it reads clearly to them, even if extra-textual 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.evidence suggests that Congress may have intended a different result.~~547~~588 Others have Others have
demonstrated a willingness to expand the lens to take in evidence of congressional intent from the 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.legislative history of the act or the regulatory scheme as a whole.~~548~~589
Takeaways and Suggestions for Reading a Bill
Understanding how a draft or pending bill would change the law if enacted requires familiarity 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 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 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 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 from the report and suggestions for reading a bill to help Members and congressional staff flag
potential interpretive issues to discuss with legislative attorneys in their offices and within CRS. potential interpretive issues to discuss with legislative attorneys in their offices and within CRS.
1.
~~Scan the whole bill before reviewing any given section. Key definitions or~~
~~limitations on the bill’s scope may be placed at the end of the bill or within a~~
~~particular division.549 If the bill is amending an existing law, consult the statute to~~
~~be amended to understand fully the changes the bill would make. The statute’s~~
~~table of contents in the U.S. Code may serve as a guide to the amendment’s place~~
~~in the overall statutory scheme and indicate general rules or definitions that might~~
~~apply to the bill.550~~
2.
~~Pay attention to whether language in a bill is “inside the quotes”—signifying~~
~~language that would be added to, or removed from, an existing law—or “outside~~
~~the quotes”—indicating a stand-alone provision.551 If a reference to “this act” or a~~
~~particular subdivision (i.e., “this section”) is “outside the quotes,” it likely 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~~

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). 583 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.”). 584 Simmons v. Himmelreich, 136 S. Ct. 1843, 1848 (2016). 585 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.’”). 586 See, e.g., CRS Legal Sidebar LSB10304, Waiver of Congressional Notification Period in the Arms Export Control Act, by Jennifer K. Elsea. 587 See, e.g., Rubin v. Islamic Republic of Iran, 138 S. Ct. 816, 826 (2018) (finding “no basis to conclude that Congress’ failure to change ‘this section,’” which appeared in amendatory language, to a reference to a section of the Congress’ failure to change ‘this section,’” which appeared in amendatory language, to a reference to a section of the
underlying public law “was the result of a mere drafting error”). underlying public law “was the result of a mere drafting error”).
~~547~~588 See, e.g., King v. Burwell, 135 S. Ct. 2480, 2496, 2505 (2015) (Scalia, J., dissenting) (rejecting the majority’s , King v. Burwell, 135 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 produced an “absurd result,” the Court had “no authority to dismiss the terms of the reasoning that unless the phrase produced an “absurd result,” the Court had “no authority to dismiss the terms of the
law as a drafting fumble”). law as a drafting fumble”).
~~548~~589 See, e.g., , King, 135 S. Ct. at 2490 (majority opinion) (reasoning that although “it might seem that a Federal , 135 S. 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,’ . . . is not so clear.” (internal citation omitted)); Koons Buick Pontiac GMC, Inc. v. Nigh, overall statutory scheme,’ . . . is not so clear.” (internal citation omitted)); Koons Buick Pontiac GMC, Inc. v. Nigh,
543 U.S. 50, 65 (2004) (Stevens, J., concurring) (“[W]e cannot escape this unambiguous statutory command by 543 U.S. 50, 65 (2004) (Stevens, J., concurring) (“[W]e cannot escape this unambiguous statutory command by
proclaiming that it would produce an absurd result. We can, however, escape by using common sense. The history of proclaiming that it would produce an absurd result. We can, however, escape by using common sense. The 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). Thus, the Court unquestionably decides existing interpretation of (i) as being limited by the ceiling contained in (ii). Thus, the Court unquestionably decides
this case correctly. It has demonstrated that a busy Congress is fully capable of enacting a scrivener’s error into law.”). this case correctly. It has demonstrated that a busy Congress is fully capable of enacting a scrivener’s error into law.”).
~~549 See supra “Definitions” and “General Rules and Exceptions.”~~
~~550 See supra “Freestanding Versus Amendatory Bills.”~~
~~551 See supra “Freestanding Versus Amendatory Bills.”~~
~~552 See supra ““This Act” or “This Section” (or Other Subdivision).”~~
~~Congressional Research Service~~
84 Congressional Research Service 87

link to page link to page 2140 link to page link to page 1750 link to page link to page 2810 link to page link to page 4010 link to page link to page 7478 link to page link to page 7521 link to page link to page 4817 link to page link to page 5228 link to page link to page 840 link to page link to page 8475 link to page link to page 5476 link to page 50 Understanding Federal Legislation 1. Scan the whole bill before reviewing any given section. Key definitions or limitations on the bill’s scope may be placed at the end of the bill or within a particular division.590 If the bill is amending an existing law, consult the statute to be amended to understand fully the changes the bill would make. The statute’s table of contents in the U.S. Code may serve as a guide to the amendment’s place in the overall statutory scheme and indicate general rules or definitions that might apply to the bill.591 2. Pay attention to whether language in a bill is “inside the quotes”—signifying language that would be added to, or removed from, an existing law—or “outside the quotes”—indicating a stand-alone provision.592 If a reference to “this act” or a particular subdivision (i.e., “this section”) is “outside the quotes,” it likely refers to the bill itself. The same reference “inside the quotes” likely refers to the underlying statute instead of the bill.593 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 ~~link to page 69 link to page 88 link to page 60~~ ~~Understanding Federal Legislation~~

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.~~553~~594
4. 4.
Remember that statements of purpose and findings generally do not create legal Remember that statements of purpose and findings generally 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.~~554~~595
5. 5.
In deciding what a term means, check for applicable definitions in the bill and In deciding what a term means, check for applicable definitions in the bill and
any statutes that the bill would amend.any statutes that the bill would amend.~~555~~596 A court will likely give defined terms A court will likely give defined terms
the meaning that Congress has chosen while often according undefined terms the meaning that Congress has chosen while often according undefined terms
their ordinary meaning. Observe whether a definition is prefaced by “means,” their ordinary meaning. Observe whether a definition is prefaced by “means,”
suggesting that what follows is an exhaustive definition, or “includes,” suggesting that what follows is an exhaustive definition, or “includes,”
suggesting that what follows is illustrative but not exhaustive.suggesting that what follows is illustrative but not exhaustive.~~556~~597
6. 6.
Consider whether a provision is framed in mandatory (e.g., “shall”, “may not”) or Consider whether a provision is framed in mandatory (e.g., “shall”, “may not”) or
discretionary (e.g., “may”) terms.discretionary (e.g., “may”) terms.~~557~~598 Note any exceptions, exemptions, or other Note any exceptions, exemptions, or other
special rules. Language that qualifies a provision usually signals an important special rules. Language that qualifies a provision usually signals an important
limitation on the provision’s scope (e.g., “Except as provided in paragraph (2),” limitation 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)).~~558~~599
7. 7.
In reviewing the substantive provisions in a bill, remember that a requirement In reviewing the substantive provisions in a bill, 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, private individuals an enforcement mechanism to promote compliance. Similarly, private individuals
~~or entities usually cannot enforce a benefit or protection without an explicitly~~
~~authorized private right of action.559~~
8.
~~If a provision potentially conflicts with an existing law, consider whether it~~
~~clearly addresses what rule should prevail through an exception, a~~
~~notwithstanding clause, or a preemption clause.560~~
9.
~~Check cross-references to other provisions or statutes. Not only will this help to~~
~~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~~
~~result of another amendment).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~~ 590 See supra “Definitions” and “General Rules and Exceptions.” 591 See supra “Freestanding Versus Amendatory Bills.” 592 See supra “Freestanding Versus Amendatory Bills.” 593 See supra ““This Act” or “This Section” (or Other Subdivision).” 594 See supra “Introductory and Organizational Elements of a Bill” and and “The Role of Statutory Interpretation.”
~~554~~595 See supra “Prefatory Statements.” ”
~~555~~596 See supra “Definitions.”
~~556~~597 See supra ““Means” Versus “Includes”.”
~~557~~598 See supra ““Shall” Versus “May”.”
~~558~~599 See supra “General Rules and Exceptions.” ”
~~559 See supra “Rights, Remedies, and Enforcement.”~~
~~560 See supra “How a New Act Affects Existing Law,” ““Notwithstanding” Clauses,” and “Preemption Clauses.”~~
~~561 See supra “Technical and Conforming Amendments” and “Drafting Errors.”~~
~~562 See supra “Timing Rules.”~~
~~Congressional Research Service~~
85

~~Understanding Federal Legislation~~

~~Author Information~~

~~Victoria L. Killion~~

~~Legislative Attorney~~

~~Acknowledgments~~
~~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~~
~~Nicole Vanatko. Sandra Edwards and Jonathan Kardashian in CRS’s Office of Publishing provided~~
~~essential support on the figures and general formatting.~~
Congressional Research Service 88 link to page 53 link to page 8 link to page 87 link to page 55 link to page 70 link to page 91 link to page 61 Understanding Federal Legislation 8. or entities usually cannot enforce a benefit or protection without an explicitly authorized private right of action.600 9. If a provision potentially conflicts with an existing law, consider whether it clearly addresses what rule should prevail through an exception, a notwithstanding clause, or a preemption clause.601 10. Check cross-references to other provisions or statutes. Not only will this help to 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 result of another amendment).602 11. 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.603 Author Information Victoria L. Killion Legislative Attorney
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
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
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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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subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
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600 See supra “Rights, Remedies, and Enforcement.” 601 See supra “How a New Act Affects Existing Law,” ““Notwithstanding” Clauses,” and “Preemption Clauses.” 602 See supra “Technical and Conforming Amendments” and “Drafting Errors.” 603 See supra “Timing Rules.” Congressional Research Service Congressional Research Service
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