Reminder: The United States Code is not the law

As news reports circulate about the various candidates being interviewed to replace James Comey as director of the FBI, some of you may have flipped over to the United States Code to see what was what. If so, you might have found 28 U.S.C. 532:

The Attorney General may appoint a Director of the Federal Bureau of Investigation. The Director of the Federal Bureau of Investigation is the head of the Federal Bureau of Investigation.

My reaction upon reading this was a bit of puzzlement: The attorney general? Everything I had been reading suggested that the president was to appoint the director. And what about Senate confirmation? The position has to be confirmed by the Senate, doesn’t it? Why isn’t that in the statute?

It turns out that if you click over to the “notes” below the codified provision, you’ll find a mention of Public Law 90-351, § 1101, June 19, 1968, 82 Stat. 236, which provides that “Effective as of the day following the date on which the present incumbent in the office of Director ceases to serve as such, the Director of the Federal Bureau of Investigation shall be appointed by the President, by and with the advice and consent of the Senate.” That’s the actual law governing the appointment of the director of the FBI, which is why both Comey and his replacement must be appointed by the president and confirmed by the Senate. It just isn’t in actual text of that section of the U.S. Code.

Now, other than a momentary confusion, nothing much ended up turning on this — especially since you can find the references in the formal notes to the now-obsolete Section 532. But this struck me as a good example of the obscure but important point that the United States Code is not generally the law. The law that is actually enacted by Congress and signed by the president can be found in the Statutes at Large, a giant chronological compilation of everything Congress has enacted, with subsequent amendments and repeals. The United States Code is a helpful edited collection that tries to reflect what the Statutes at Large actually add up to, but it is “prima facie” evidence of law, not the law itself.

(There is a complication, which is that some titles of the U.S. Code have subsequently been enacted by Congress and the President, and so the enacted titles are real law. But even then, the enacted titles may have subsequent amendments that aren’t codified — this is the case with Title 28, which is an enacted title, but which nonetheless doesn’t codify the subsequent amendment reflecting the appointment of the director of the FBI. And there is another complication, a few things that may not even be in the Statutes at Large, but luckily that’s rarely an issue.)

Anyway, if you want to read more about this, I highly recommend the short and excellent article by Tobias Dorsey, “Some Reflections on Not Reading the Statutes,” which rocked my world when I was in law school. From the article:

The Code is–no disrespect intended–a Frankenstein’s monster of session laws. The Code is made by taking the session laws, hacking them to pieces, rearranging them, and stitching them back together in a way that gives them false life. Many pieces are altered, and many others are thrown away. The result is something like a Cliffs Notes guide to the real law. That is all the Code is, and that is all it is supposed to be.

The good news is that the U.S. Code is nonetheless a pretty accurate guide to the law, so most of the time the differences don’t matter much. But every once in a while, they sure do.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/05/15/reminder-the-united-states-code-is-not-the-law/

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