A discussion of the legal status of the US Code, and why it is, and is not, the law of the land.

1. The United States Code: Is It the Law?
By Frederick Frankel
The obvious answer to this question is yes, but a look at the beginning of
the first edition (1926) of the United States Code introduces some
interesting qualifications:
The matter set forth in the Code...shall establish prima facie the laws
of the United States, general and permanent in their nature, in force
on the 7th day of December, 1925; but nothing in this Act shall be
construed as repealing or amending any such law, or as enacting as
new law any matter contained in the Code. In the case of any
inconsistency arising through omission or otherwise between the
provisions of any section of this Code and the corresponding portion
of legislation heretofore enacted effect shall be given for all purposes
to such enactments.1
Congress did not replace any existing laws at that time, but chose instead to give the new Code a
secondary status as (very strong) evidence of the law. In the event of any conflict or uncertainty, the law as
put forth by the Code could be rebutted by the underlying language of the original statutes. In 1947,
Congress introduced a new element in its approach to the 50 titles of the Code. A distinction was made
between those titles that tell us what the law is on a merely “prima facie” basis, and those that, having been
presented to the Congress and enacted as a whole into positive law, constitute “legal evidence” of the law.
The United States Code now establishes:
...prima facie the laws of the United States...Provided, however, 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...2
A list of the 25 titles of the US Code that have been elevated to the status of positive law during the last 60
years, along with the public laws that enacted these changes, can be found in the Note to 1 USC § 204.
These include titles 11, 17, 28, and 35, but they do not include title 19 (Customs Duties), a part of the Code
that is often referred to by the Court.
The Origins of the United States Code
The reluctance on the part of Congress to certify so many titles of the Code as anything more than prima
facie evidence of the law stems from the unfortunate results of the first attempt at codification, which began
in 1866 and resulted in the Revised Statutes of 1873. At that time, Congress repealed all prior laws and
replaced them with the Revised Statutes, only to find afterwards that numerous errors in the Code produced
unintended changes in the law. A new edition of the Revised Statutes was issued in 1878 that attempted to
correct as many of these errors as possible. After that date several supplements were issued, but there
were no further revisions to this first version of the Code.3
Despite continuing problems with codification, the necessity for some kind of a systematic organization of
the laws remained. The United States Statutes at Large has unquestioned status as the “legal evidence of
laws,”4 but this set is simply a compilation of the public laws as they were enacted by Congress. It provides
no method for finding out what the law is on a particular subject, or of determining whether any individual
statute has been repealed or amended. In contrast, the function of a code is to organize the law according to

2. statute has been repealed or amended. In contrast, the function of a code is to organize the law according to
a system of topics, while making sure that the language reflects the state of the law as it currently exists.
When, in 1925, the Congress turned its attention to a new codification, it was determined to avoid the
mistakes of the past. Congress provided that the new Code would not create new law, and that in the case
of any conflict, the language of the Statutes at Large would be controlling.
The Process of Codification
The Office of Law Revision Counsel of the House of Representatives is responsible for issuing new editions
of the United States Code on a regular basis, and for classifying new laws according to their proper places
within it.5
The process of updating the Code sometimes requires modifications of the original language of the laws.
These changes are usually related to the intrinsic differences between the Code and the Statutes at Large.
For example:
A single public law may cover a variety of subjects, making it necessary to parcel out its provisions
among different sections of the Code.
Conversely, a single section of the Code may derive from a number of different public laws.
References to a “title” of the original act are replaced by references to a “chapter” of the Code.
Superseded language from an older law must be deleted, and the revised language of the newer law
must be inserted in its place in grammatically correct form.
Section numbers in the Code often do not bear any relation to the section numbers of the original
public laws.
Laws that are not of a permanent and general nature are excluded from the Code, and language that
cannot be easily fitted into the main text of the Code (sometimes as a result of drafting errors on the
part of the Congress) may need to be inserted as notes at the end of a code section.6
On occasion, a provision of a new law is in clear conflict with an earlier one, but the earlier law has not been
explicitly repealed. In this case, the Office of Law Revision Counsel may decide that the older law has been
repealed by implication, and delete it from the Code. In such cases, it is never entirely certain whether the
courts will ultimately agree with the editorial decision that was taken by the codifiers.7
It should be pointed out that there are some slight differences between the editorial approaches of the two
major commercial editions of the Code, the United States Code Annotated (USCA) and the United States
Code Service (USCS). The USCA follows the language used by the Office of Law Revision Counsel, while
the USCS tries, whenever there are any differences between the US Code and the public laws, to keep
more of the original language of the Statutes at Large.8 In practice, these differences are not very
significant.9
The United States Code as Positive Law
The 25 titles of the US Code that have been enacted into positive law are treated differently, in certain
respects, from the titles that have not. One noticeable difference involves the way in which the laws
contained in those titles are cited. The copyright laws, for instance, are found in Title 17, which is an enacted
title, and references to these laws cite directly to the relevant sections of the Code. The tariff laws, on the
other hand, are contained in title 19, which has retained its original status as prima facie evidence of the
law. References to these laws often cite to sections of the original Tariff Act of 1930, as amended, rather
than to the corresponding sections of title 19.10 This can be confusing to the researcher who has not kept in
mind the difference between the section numbers of the Code and those of the original acts of Congress.
This difference in the way the law is cited also affects the drafting of new laws.11 A recent illustration is to be

3. This difference in the way the law is cited also affects the drafting of new laws.11 A recent illustration is to be
found in a bill introduced in the 110th Congress, H.R. 1992, to “To amend the Tariff Act of 1930 to prohibit
the import, export, and sale of goods made with sweatshop labor.” Title I of this bill proposes changes to the
original Tariff Act. References to title 19 of the Code appear only in parenthesis. In contrast, a later section
of the same bill proposes changes to title 10 of the US Code, a title that has been enacted into positive law.
In this case, the bill uses the method of “direct amendment.”12 That is, it simply proposes the addition of a
new section to title 10 of the Code without mentioning any of the original public laws.
The Authority of the United States Code
The instances in which differences in language between the Code and the Statutes at Large are of any legal
significance “are few enough that it is unlikely that anyone would anticipate them...”13 But they have
occurred, and the examples are collected in the case annotations following 1 USC § 204 in both the USCA
and the USCS.
As might be expected, there is a difference in the way enacted and unenacted titles of the Code are treated
in court. When construing a provision of an unenacted title “recourse may be had to the original statutes
themselves,” but for a title that has the status of positive law, “a court may neither permit nor require proof of
underlying original statutes.”14
Yet, even for titles of the Code that are positive law, there exists the possibility that the underlying statutes
might have to be consulted.15 This possibility is almost entirely theoretical, but least one case exists in which
a court resorted to the Statutes at Large in order to rectify errors in the language of an enacted title of the
Code.16
In sum, while instances of error in either enacted or unenacted titles of the Code are rare, there are just
enough of them to “disappoint lovers of certainty and the United States Code.”17
1. Act of June 30, 1926, ch. 712, 44 Stat. 1.
2. Act of July 30, 1947, ch. 388, 61 Stat. 638 (codified at 1 USC § 204).
3. See William C. Chamberlain, Enactment of Parts of the United States Code into Positive law, 36 Geo.
L.J. 217, 218 (1948), and Luis Acosta & Jeanine Cali, Statutory and Legislative History Research using
Print and Electronic Sources, at 20, Law Library of Congress (Feb. 14, 2007),
http://www.law.asu.edu/files/Library/Research_Portals_&_Guides/Legislative_History_Program_Outline.pdf.
4. 1 USC § 112.
5. Pub. L. No. 93-554 (codified at 2 USC § 285a).
6. See discussions of this process in Michael J. Lynch, The US Code, the Statutes at Large, and some
Peculiarities of Codification, 16 Legal Ref. Serv. Q. 69, 71 (1997), and Acosta & Cali, supra, at 13- 14.
7. Chamberlin, supra, at 219.
8. Acosta & Cali, supra, at 24, and Lynch, supra, at 82, note 4.
9. But see United States v. Vivian, 224 F.2d 53 (7th Cir. 1956) and Springfield Terminal Ry. Co. V. United
Transp. Union, 767 F. Supp. 333 (D. Me. 1991). In each case, one commercial version was in error.
10. The Bluebook: A Uniform System of Citation R. 12.2.2, at 103 (Columbia Law Review Ass’n et al. eds.,
18th ed. 2005), recommends citing to the public laws only when the code language “differs materially from
the language in the session laws, and the relevant title has not been enacted into positive law” but otherwise
recommends citing to the Code, even for unenacted titles.
11. See discussions in Acosta & Cali, supra, at 14-15, and Lynch, supra, at 72-73.
12. Charles W. Johnson, How Our Laws Are Made, 55 (Government Printing Office, 2003).

4. 12. Charles W. Johnson, How Our Laws Are Made, 55 (Government Printing Office, 2003).
13. Lynch, supra, at 69.
14. 12A Federal Procedure, L.Ed. § 33:645 at 441-442 (2007).
15. Norman J. Singer, 2 Sutherland Statutory Construction, 36A:10 at 132-133 (6th ed. 2001) discusses
the possible continuing effect on enacted titles of statutes that were neither repealed nor codified.
16. See discussion of Goldstein v. Cox, 396 US 471 (1970) in Lynch, supra, at 75-76.
17. Lynch, supra, at 69.
Originally published in the U.S. Court of International Trade's Court Crier for June 2007, at p. 7. Minor
changes have been made. Reprinted with permission