When researching legislative history, we often refer to the Credits following a given section of the United States Code for a list of statutes that over the years contributed to that section. And once in a while we’re confronted with language in the Credits that’s not entirely clarifying. For example, the Credits for 20 U.S.C. § 1140m read:
- Pub. L. 89-329, Title VII, § 773, as added Pub. L. 110-315, Title VII, § 709(2), Aug. 14, 2008, 122 Stat. 3371.
What’s the significance of the word choice here – “as added”? Can’t we simply assume that the first statute listed in what can often be an extended paragraph of successive amending statutes is the original law?
The Law Revision Counsel (LRC) of the House of Representatives maintains the Detailed Guide to the United States Code Content and Features to help us decode The U.S. Code.
The phrase, “as added”, is used for very specific situations. It also signals to us a few things about a given Code section’s status.
The LRC uses the “as added” signal only in reference to non-positive law titles of the U.S. Code. So, the first thing “as added” tells us is that Congress hasn’t enacted Title 20 of the U.S. Code as positive law. In non-positive law titles, the first statute listed in the source credits is what’s called the base law – the statute on which the Code section is based and of which it is still a part. Contrast that with a positive law title in which the first statute listed in the source credits is the one that enacted that section of the code. That positive law section of the code is no longer a part of some other statute; there is no base law associated with it.
The second bit of information conveyed by the “as added” notation is that the language in 20 U.S.C. § 1140m was not originally a part of its base law. It was added by Pub. L. 110-315, Title VII, § 709(2). Less obviously, the notation tells us that Pub. L. 110-315 added § 773 to Title VII of the base law, Pub. L. 89-329. Don’t go to Hein or GPO.gov and pull up Pub. L. 89-329 expecting to find § 773. You won’t actually see it with your eyes. None of your senses will detect its existence. And it doesn’t have a Statutes at Large citation, because it’s not in the Statutes at Large. But be still and know that’s where the language of 20 U.S.C. § 1140m officially resides for purposes of the base law.
And again, the base law is important. Congress hasn’t enacted 20 U.S.C. § 1140m. But Congress did enact both the base law and the 2008 statute adding § 773 to the base law. This difference has consequences for how the Law Revision Counsel explains the statutes vis-a-vis the U.S. Code. Understanding the difference between positive and non-positive titles of the Code will contribute to both your understanding of the Source Credits and will help make sense of tricky legislative histories.