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

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URL: https://www.frixlaw.com/law-library/documents/crs%3AR46484

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** May 19, 2022
- **Citation:** R46484

## Text

Understanding Federal Legislation:
A Section-by-Section Guide to
Key Legal Considerations
Updated May 19, 2022

Congressional Research Service
https://crsreports.congress.gov
R46484

SUMMARY

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

R46484
May 19, 2022
Victoria L. Killion

Federal bills are increasingly complex, making them difficult to understand for the average
Legislative Attorney
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
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,
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
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
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:



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.



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.



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.



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.



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.
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.



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
implicitly preempted state law, presuming that it did not but asking, among other questions, whether it is
impossible to comply with both laws.



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.



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.

Beyond these considerations about the parts of a bill, it is useful to know how courts have interpreted common legislative
language. For example:



The word “shall” generally introduces a requirement. While “may” can leave room for discretion, “may
not” signals a prohibition.



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
bill text.



The phrase “notwithstanding any other provision of law” is susceptible to different interpretations
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,
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.

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Contents
A Bill in Context.............................................................................................................................. 2
How a New Act Affects Existing Law ...................................................................................... 3
Freestanding Versus Amendatory Bills ..................................................................................... 5
The U.S. Code and Positive Law Codification.......................................................................... 9
The Role of Statutory Interpretation ....................................................................................... 12
Parts of a Bill and Their Legal Significance.................................................................................. 15
Introductory and Organizational Elements of a Bill ............................................................... 16
Preliminary Identifiers ...................................................................................................... 16
The Long Title .................................................................................................................. 17
The Enacting Clause ......................................................................................................... 19
Short Titles ........................................................................................................................ 20
Headings and Subheadings ............................................................................................... 21
Prefatory Statements ............................................................................................................... 23
Preambles .......................................................................................................................... 24
Sense of Congress Provisions ........................................................................................... 27
Declarations of Policy ....................................................................................................... 28
Statements of Purpose ....................................................................................................... 31
Findings ............................................................................................................................ 32
Definitions ............................................................................................................................... 35
When the Bill Defines a Term Used in the Bill ................................................................ 36
When the Bill Does Not Define a Term Used in the Bill .................................................. 37
When the Term Does Not Have an Applicable Statutory Definition ................................ 39
Substantive Provisions ............................................................................................................ 44
General Rules and Exceptions .......................................................................................... 45
Rights, Remedies, and Enforcement ................................................................................. 48
Preemption Clauses ................................................................................................................. 50
Savings Clauses....................................................................................................................... 54
Timing Rules ........................................................................................................................... 56
Effective Dates .................................................................................................................. 56
Transitional Provisions ..................................................................................................... 57
Sunset Provisions .............................................................................................................. 58
Severability or Inseverability Clauses ..................................................................................... 59
When a Bill Contains a Severability Clause ..................................................................... 60
When a Bill Does Not Address Severability ..................................................................... 61
When a Bill Contains an Inseverability Clause ................................................................ 64
Technical and Conforming Amendments ................................................................................ 65
Authorization of Appropriations ............................................................................................. 68
Common Terms, Phrases, and Interpretive Issues ......................................................................... 70
HOLC’s “Three Important Conventions” ............................................................................... 70
“Means” Versus “Includes”............................................................................................... 70
“Shall” Versus “May” ....................................................................................................... 71
Singular and Plural............................................................................................................ 72
Reference Words ..................................................................................................................... 73
“This Act” or “This Section” (or Other Subdivision) ....................................................... 73
“Any Other” ...................................................................................................................... 78
“Such” and “So” ............................................................................................................... 79

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Definite and Indefinite Articles ............................................................................................... 81
“Notwithstanding” Clauses ..................................................................................................... 82
Drafting Errors ........................................................................................................................ 86
Takeaways and Suggestions for Reading a Bill............................................................................. 87

Figures
Figure 1. Freestanding Bill with Requirements Under Separate Bill Sections................................ 6
Figure 2. Freestanding Bill in the Form of a Title ........................................................................... 7
Figure 3. Amendatory Bill Proposing Amendments to U.S. Code .................................................. 8
Figure 4. Divisions Within a Section of the Code ........................................................................... 9
Figure 5. Amendatory Bill Proposing Amendments to Act ........................................................... 12
Figure 6. Bill Identifiers ................................................................................................................ 17
Figure 7. Long Title ....................................................................................................................... 18
Figure 8. Enacting Clause.............................................................................................................. 19
Figure 9. Short Title....................................................................................................................... 20
Figure 10. Section Headings.......................................................................................................... 22
Figure 11. Preamble....................................................................................................................... 25
Figure 12. Sense of Congress ........................................................................................................ 27
Figure 13. Statement of Policy ...................................................................................................... 29
Figure 14. Purpose ......................................................................................................................... 31
Figure 15. Findings........................................................................................................................ 32
Figure 16. Definitions Subsection ................................................................................................. 36
Figure 17. Exceptions to a General Rule ....................................................................................... 46
Figure 18. Exceptions to Exceptions ............................................................................................. 47
Figure 19. Preemption Clause ....................................................................................................... 51
Figure 20. Savings Clause ............................................................................................................. 55
Figure 21. Transitional Provision .................................................................................................. 58
Figure 22. Sunset Provision........................................................................................................... 59
Figure 23. Severability Clause ...................................................................................................... 60
Figure 24. Inseverability Clause .................................................................................................... 65
Figure 25. Technical Amendment .................................................................................................. 66
Figure 26. Conforming Amendment.............................................................................................. 67
Figure 27. Authorization of Appropriations .................................................................................. 69
Figure 28. “This Section” Referring to Underlying Statute: Example 1 ....................................... 74
Figure 29. “This Section” Referring to Underlying Statute: Example 2 ....................................... 75
Figure 30. “This Act” Referring to Bill as a Whole ...................................................................... 76
Figure 31. “This Act” Referring to Division of Bill ...................................................................... 77

Contacts
Author Information........................................................................................................................ 89

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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
organizational elements like headings and numbered lists “with enthusiasm whenever
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
understand what changes a given bill would make to the law.3 Often, the picture is further
obscured when the bill is viewed against the vast backdrop of legal principles on how to interpret
legislative language.4

A

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
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
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
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
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
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
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
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
Supreme Court has recognized, statutory interpretation depends heavily on the precise wording of

1 See 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/
draftstyle.pdf [hereinafter HOLC MANUAL ON DRAFTING STYLE].
2 Id.
3 See Outrageous Bills: Why Congress Writes Such Long Laws, 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
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.”).
4 See 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
governmental legislation. And there are jurisprudential conventions that make legal interpretation more than just a
linguistic exercise . . . .”).
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,
among courts, and among judges. See infra “The Role of Statutory Interpretation.”
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.
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
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. See ABNER
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
relevant area.8
Report Terminology on Types of Federal Legislation
This report focuses on federal legislation9 in the form of bills, which, to become law, must be passed by both
houses of Congress and presented to the President for consideration.10 For simplicity, the terms “bill” and
“legislation” are used interchangeably. Bills become law upon enactment, that is, (1) when the President signs the
bill into law; (2) when 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.11
The report also references elements characteristic of joint resolutions—the other vehicle that Congress may
use to pass laws—where applicable. Like bills, 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
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
pending legislation.14 Accordingly, the report generally refers to laws rather than bills when discussing matters of
statutory interpretation, and to that end uses the terms “public law,”15 “act,” and “statute” interchangeably
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
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
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 United States Code. The discussion in this

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

and practices may vary depending on the jurisdiction. See, e.g., MD. DEP’T OF LEGISLATIVE SERVS., 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/
legislativedraftingmanual.pdf.
10 See generally CRS Infographic IG10005, From Bill to Law: Stages of the Legislative Process, by Valerie Heitshusen
and Jennifer E. Manning.
11 U.S. CONST. art. I, § 7, cl. 2; see also ROBERT B. DOVE, PARLIAMENTARIAN, U.S. SENATE, ENACTMENT OF A LAW
(1997), https://www.congress.gov/resources/display/content/Enactment+of+a+Law++Learn+About+the+Legislative+Process.
12 A different process exists for joint resolutions proposing a constitutional amendment. See generally CRS Report
R46603, Bills, Resolutions, Nominations, and Treaties: Characteristics and Examples of Use, by Jane A. Hudiburg.
13 See Types of Legislation, UNITED STATES SENATE, https://www.senate.gov/legislative/common/briefing/
leg_laws_acts.htm (last visited May 19, 2022) (explaining how bills and the three forms of resolutions differ).
14 Pre-enactment challenges typically are not ripe for judicial consideration. See, e.g., Brubaker Amusement Co. v.
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
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).
15 “Most laws passed by Congress are public laws”—laws that “affect society as a whole” rather than “an individual,
family, or small group.” U.S. Gov’t Publishing Office, About Public and Private Laws, GOVINFO,
https://www.govinfo.gov/help/plaw (last visited May 19, 2022).

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part refers primarily to legislation outside of appropriations bills, which are not presumed to make
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
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
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
otherwise,20 the act remains in force until Congress amends (i.e., changes) or repeals (i.e.,
revokes) it.21
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
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 coexistence,” 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

16 See 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
for authorized programs.”). But cf. 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
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
statutes.’ (internal citations omitted)). For more information on interpreting appropriations bills, see CRS Report
R46899, Regular Appropriations Acts: Selected Statutory Interpretation Issues, by Sean M. Stiff.
17 U.S. CONST. art. I, § 7, cl. 2; see generally Enactment of Legislation, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artI-S7-C2-1/ALDE_00001052/.
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.
See H. Off. of Legis. Counsel, Drafting Legislation, HOLC, https://legcounsel.house.gov/holc-guide-legislativedrafting (last visited May 19, 2022) [hereinafter HOLC Guide to Legislative Drafting] (“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.”).
19 See infra “Effective Dates.”
20 See infra “Sunset Provisions.”
21 See generally Amendment, BLACK’S LAW DICTIONARY (11th ed. 2019); Repeal, BLACK’S LAW DICTIONARY (11th ed.
2019). Appropriations bills are the exception. Their provisions are presumptively in force only for the fiscal years to
which they apply. See 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
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.
Devine, 733 F.2d 114, 120 (D.C. Cir. 1984); GAO, PRINCIPLES OF FEDERAL APPROPRIATIONS LAW 2-34 (1982))); id. at
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)).
22 See generally Repeal, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining “express repeal,” in relevant part, as
“[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
Reorganization Act Cases, 419 U.S. 102, 133–34 (1974)).
24 See Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1624 (2018) (observing the presumption that “‘Congress will
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))).

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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
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
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
principles in a 2018 decision:
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.
Allowing judges to pick and choose between statutes risks transforming them from
expounders of what the law is into policymakers choosing what the law should be. Our
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
to write the laws and to repeal them. 29

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 “irreconcilable conflict” with an existing law, the
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
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 clearly intended as a substitute.”32
Congressional intent to replace the old law in its entirety is key because the Supreme Court “has

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
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) (“Notwithstanding section 479B of the Higher
Education Act of 1965 (20 U.S.C. § 1087uu) and except as provided in clause (ii), provision of such training services
shall be limited to individuals who. . . .” (emphasis added)). See infra “General Rules and Exceptions” and
““Notwithstanding” Clauses.”
26 Ruckelshaus, 467 U.S. at 1017 (internal quotation marks omitted) (quoting Reg’l Rail Reorganization Act Cases, 419
U.S. 102, 133 (1974)).
27 Id.; see, e.g., 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
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”);
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.”).
28 Epic Sys. Corp., 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
effect to both.’” (quoting Morton, 417 U.S. at 551)).
29 Id.
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
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
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));
see, e.g., 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
under § 1346(a)(1) for up to four years.”).
32 Posadas, 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 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
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
section of a bill, would make.
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 in Figure 1,36
requirements related to a Department of Veterans Affairs hiring plan are listed directly under
section 3 of the bill.

33 J.E.M. Ag. Supply, Inc., 534 U.S. at 144.
34 See generally CRS Report R45190, From Slip Law to United States Code: A Guide to Federal Statutes for

Congressional Staff, by Eva M. Tarnay.
35 See id.; see also MIKVA ET AL., supra 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
statutes”).
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.

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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
Senate, May 24, 2016), https://www.congress.gov/114/bills/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,
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 . . .
and for other purposes.”38 As shown in Figure 2, the 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
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
example, “SECTION 1. SHORT TITLE” refers to the first section of the bill, while the reference

37 See 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”).
38 See 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.
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 as Figure
1 illustrates.

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to “SEC. 101. DEFINITIONS” refers to the first section of title I, subtitle A of the Ensuring
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 enrolled),
https://www.congress.gov/114/bills/hr6452/BILLS-114hr6452enr.pdf.

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
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 U.S. Code.41 This
40 See HOLC MANUAL ON DRAFTING STYLE, supra 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’.’.”); see generally
FILSON & STROKOFF, supra note 37, at 191 (distinguishing between the “vehicular language” that introduces the
amendment and the amendment itself).
41 See H.R. 4902, 114th Cong. (as introduced, Apr. 12, 2016), https://www.congress.gov/114/bills/hr4902/BILLS114hr4902ih.pdf; Act of Dec. 8, 2016, Pub. L. No. 114-250, 130 Stat. 1001, https://www.congress.gov/114/plaws/
publ250/PLAW-114publ250.pdf.

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bill, an excerpt of which appears at Figure 3, 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
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.
Figure 3. Amendatory Bill Proposing Amendments to U.S. Code

Source: H.R. 4902, 114th Cong. (2016) (as enrolled), https://www.congress.gov/114/bills/hr4902/BILLS114hr4902enr.pdf.

As shown in Figure 3, when 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,
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
The statute’s table of contents in the U.S. Code 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
bill.45 To understand the specific 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
deleted.46
42 See supra note 18 (explaining that a bill is styled as “An Act” once it passes one house of Congress).
43 See HOLC Guide to Legislative Drafting, supra 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
indicate where in the existing statute the new material is to be placed.”).
44 See id.
45 See, e.g., Off. of Law Revision Counsel, United States Code, https://uscode.house.gov/browse/prelim@title5/part3/
subpartD/chapter55/subchapter5&edition=prelim (last visited May 19, 2022) (displaying the table of contents for
5 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
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/

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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 U.S. Code (the Code), the official
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 Code.48
The Code 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
subparagraph as in Figure 4.50 A given Code title may also include broader units such as subtitles
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 Lexis Advance.

Because the U.S. Code 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
naming a post office.”52 Moreover, with certain freestanding provisions, OLRC exercises its
discretion in determining which statutory provisions to assign to Code 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)
(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).
48 2 U.S.C. §§ 285, 285b.
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 May 19, 2022).
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 May 19, 2022) [hereinafter Detailed Guide to the U.S.
Code]. A subparagraph may be further broken down into “clauses, subclauses, and items.” Id.
51 Id.; see, e.g., 11 U.S.C. §§ 101 et seq. (Bankruptcy).
52 Off. of Law Revision Counsel, United States Code: Frequently Asked Questions and Glossary,
http://uscode.house.gov/faq.xhtml (last visited May 19, 2022).

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organizational units of the Code) and which to include as statutory notes following a particular
section’s text.53
Statutory Versus Editorial Notes
Placing a public law’s text in a statutory note 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 Code.
The Code also contains editorial notes.55 Like statutory notes, these notes follow the text of a Code section.
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
source, derivation, history, references, translations, effectiveness and applicability, codification, defined terms,
prospective amendments, and related matters.”56

There are two types of titles in the Code: positive law and non-positive law titles.57 Non-positive
law titles of the Code consist of separately enacted federal statutes arranged and edited by OLRC
to conform to the Code’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
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
times into a codification bill so that Congress can reenact the law as a single restatement of the
law on that subject.60
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 Code titles contain “the laws”
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 See generally 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 May 19, 2022); Detailed Guide to the U.S. Code,
supra note 50.
54 See Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1251 (11 th 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
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
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.”).
55 Detailed Guide to the U.S. Code, supra note 50.
56 Id.
57 See CRS Report R45190, From Slip Law to United States Code: A Guide to Federal Statutes for Congressional Staff,
supra note 34, at 6–8.
58 See Off. of Law Revision Counsel, United States Code: Positive Law Codification, https://uscode.house.gov/
codification/legislation.shtml (last visited May 19, 2022) [hereinafter Positive Law Codification].
59 Id.
60 See id. (explaining that 2 U.S.C. § 285b “provides the mandate for positive law codification”).
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.,
21st ed. 2020) (directing legal professionals to “cite statutes currently in force” to the U.S. Code “[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
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
legislation of which is included: 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, in all the courts of the United States,
the several States, and the Territories and insular possessions of the United States.”).

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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
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
meaning when interpreting a statute.65
When it comes to understanding a bill, it also helps to know that amendments to positive and nonpositive 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 Code
itself (e.g., Figure 3). In contrast, if Congress seeks to amend or add a new section to a nonpositive 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., Figure 5).

63 See Positive Law Codification, supra note 58 (“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
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., United States Statutes at
Large, https://www.govinfo.gov/app/collection/STATUTE (last visited May 19, 2022) (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 that the Statutes at Large “shall be legal evidence of laws . . . therein contained, in all the courts of the United
States”)).
64 See Positive Law Codification, supra 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
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))).
65 For example, in Citizens Against Casino Gambling v. Hogen, 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
“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,
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 U.S. Code, was “Seneca Nation (New York) Land Claims
Settlement,” Congress had actually assigned the act the short title “Seneca Nation Settlement Act of 1990,” which
mentioned neither the terms “land” nor “claim.” Id. at 178–79. The court held that it was unreasonable for the agency to
rely on the short title printed in the U.S. Code because Congress had not yet enacted the applicable Code title into
positive law. Id. at 179.
66 See FILSON & STROKOFF, supra 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 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),
https://www.congress.gov/114/bills/hr3594/BILLS-114hr3594ih.pdf.

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
authority—does not depend on whether the language amends a positive law or non-positive law
title of the Code. 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
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.

The Role of Statutory Interpretation
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.
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

67 See, e.g., 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.
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
kind that Congress uses to create substantive rights”).
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
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
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,
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
many entities weighing in on a law’s meaning, some basic ground rules for interpreting the law
are needed to promote consistent interpretations.74
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
interpretation involves consideration of a law’s “text, structure, purpose, and history” to discern
Congress’s meaning.76 It is not a simple formula. While, for the Supreme Court and many federal
courts, statutory interpretation begins with the law’s text,77 there are different approaches to
69 See generally CRS Infographic IG10005, From Bill to Law: Stages of the Legislative Process, by Valerie Heitshusen

and Jennifer E. Manning.
70 See, e.g., 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
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
outbreak. I note, however, that the Act includes several provisions that raise constitutional concerns.”).
71 See 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,
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.”). See generally CRS In Focus IF10003, An
Overview of Federal Regulations and the Rulemaking Process, 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
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.”); see also 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
of statutory construction and must reject administrative constructions which are contrary to clear congressional
intent.”).
73 See 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
whether our decision focused only on statutory text or also relied . . . on the policies and purposes animating the law.”
(internal citation omitted)).
74 See SCALIA & GARNER, supra 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
hedged in by rules. . . .”).
75 See id. 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
inherent meaning”); Abbe R. Gluck, Intersystemic Statutory Interpretation: Methodology as “Law” and the Erie
Doctrine, 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
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.
76 Gen. Dynamics Land Sys. v. Cline, 540 U.S. 581, 600 (2004); see also 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
legislative history and other traditional aids of statutory interpretation to determine congressional intent.”).
77 See, e.g., 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,
we start with its text, giving the language its ordinary meaning.” (internal citations omitted)).

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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
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
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
cases, judges disagree over which 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
necessary.84

78 See, e.g., James J. Brudney & Lawrence Baum, Protean Statutory Interpretation in the Courts of Appeals, 58 WM. &

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
textualist and purposive resources in ways that are more pragmatic, and less dogmatic, than their Supreme Court
counterparts”); Aaron-Andrew P. Bruhl, Hierarchy and Heterogeneity: How to Read a Statute in a Lower Court, 97
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
Court and in the lower courts.”).
79 See, e.g., 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
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
aware of these principles. See, e.g., 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
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”).
But legal scholars have also observed significant changes in the field of statutory interpretation since the founding. See,
e.g., Gluck, supra 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”).
80 See, e.g., City of Chicago v. Fulton, 141 S. Ct. 585, 591 (2021) (rejecting a reading that would “render the central
command” of a statutory section “largely superfluous”); Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S.
644, 669 (2007) (“[W]e have cautioned against reading a text in a way that makes part of it redundant.”).
81 See CRS Report R45153, Statutory Interpretation: Theories, Tools, and Trends, supra note 75, at 28 (footnotes
omitted).
82 See 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)
(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”).
83 Compare 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
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)), with id. at 970 (Kagan
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
list.’ Then, the exact opposite is usually true: . . . the modifying phrase refers alike to each of the list’s terms.” (internal
citation omitted)).
84 Compare 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
are persuaded that an aggressive interpretation of ‘tangible object’ must be rejected.”), with id. at 563–64 (Kagan,
Scalia, Kennedy, and Thomas, JJ., dissenting) (“Getting nowhere with [the] surplusage [canon], the plurality switches
canons, hoping that noscitur a sociis and ejusdem generis 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
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)).

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The extent to which judges and legal practitioners look to a law’s purpose, as well as the sources
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
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
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
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
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
publications,91 may affect how closely an agency or court examines certain parts of a bill, such as
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
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
these sections in a different order.93

85 Compare 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
an appropriate source for this Court to consider when interpreting a statute.”); with id. at 783 (Thomas, Alito, &
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
men, and are governed by what Congress enacted rather than by what it intended.’” (citation omitted)).
86 See SCALIA & GARNER, supra note 4, at 16 (“Textualism, in its purest form, begins and ends with what the text says
and fairly implies.”); CRS Report R45153, Statutory Interpretation: Theories, Tools, and Trends, supra note 75, at 14–
16.
87 Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018); see also 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
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
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)).
88 Simmons v. Himmelreich, 136 S. Ct. 1843, 1848 (2016).
89 See CRS Report R45153, Statutory Interpretation: Theories, Tools, and Trends, supra note 75, at 12–14.
90 But see id. at 17–19 (discussing a possible “convergence of theories”).

See, e.g., id. at 10–20; CRS Legal Sidebar LSB10122, No Overtime for Auto Service Advisors
after Court’s “Fair Reading” of the FLSA, by Jon O. Shimabukuro.
91

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 HOLC Guide to Legislative Drafting, supra note 18; (2) The Legislative Drafter’s Desk
Reference: Second Edition by Lawrence E. Filson and Sandra L. Strokoff, supra 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
Congress.gov.
93 See 1A SUTHERLAND STATUTORY CONSTRUCTION § 20:2 (7th ed. 2019) (listing the “customary order of provisions” in
“original, comprehensive, legislation”); FILSON & STROKOFF, supra 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
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
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
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
legal practitioner interpreting the statute may look to these contextual elements to resolve an
ambiguous provision that is 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
distinct introductory and organizational elements of a bill, discussed below.

Preliminary Identifiers
As shown in Figure 6, a typical bill introduced in the House or Senate begins by identifying:








the then-current session of Congress,
the bill number,95
the long title of the bill,96
the house in which the bill was introduced,
the date of introduction,
the bill’s sponsor and any cosponsors, and
any congressional committee referrals.

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
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

94 See 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.
Trainmen v. Balt. & Ohio R.R., 331 U.S. 519, 528–29 (1947))); Bd. of R.R. Trainmen, 331 U.S. at 529 (“For
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.”).
95 The bill number is “typically the next number available in sequence during that two-year Congress.” CRS Report
R42843, Introduction to the Legislative Process in the U.S. Congress, supra note 6, at 3.
96 See infra “The Long Title.”
97 See, e.g., CONGRESS.GOV, https://www.congress.gov/ (last visited May 19, 2022) (allowing viewers to search for
legislation by session of Congress, bill number, sponsor, and committee).
98 See, e.g., 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
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., Congressional Bills, 103rd Congress (1993-1994) to Present: About Congressional Bills,
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),
https://www.congress.gov/115/bills/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 prefatory words “A BILL” as shown in Figure 7. The long title generally summarizes or
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
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

99 FILSON & STROKOFF, supra note 37, at 119.
100 Id. 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),
https://www.congress.gov/115/bills/hr5163/BILLS-115hr5163ih.pdf.

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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
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
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
example, in Jackson Women’s Health Organization v. Currier, 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 law as a ban on, rather than a regulation of, pre-viability abortion because the act’s full title
included the language “To Prohibit 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
of the United States of America in Congress assembled,” shown in Figure 8. The language and
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),
https://www.congress.gov/115/bills/hr5163/BILLS-115hr5163ih.pdf.

101 See, e.g., 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 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,
suggests that this was actually a change in the law.”).
102 See FILSON & STROKOFF, supra note 37, at 120.
103 See supra notes 99–100 and accompanying text.
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,
277 (2019), cert. granted, No. 19-1392 (May 17, 2021).
105 Id. (internal quotation marks omitted).
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
the Senate and House of Representatives of the United States of America in Congress assembled.’”); id. § 103
(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
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
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
clause.109

Short Titles
Congressional drafters often include short titles for their bills, as in the example in Figure 9. If
the bill is enacted, OLRC may assign the specified short title to a section in the U.S. Code110 or
place it in the statutory notes following the text of a Code section.111
Figure 9. Short Title

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

107 See Enacting Clause, BLACK’S LAW DICTIONARY (11th ed. 2019); cf. 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
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))).
108 See 1 U.S.C. § 102 (prescribing a “resolving clause” for “all joint resolutions”).
109 See 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
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”). But cf. Joiner, 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
enacting clause “is a mere matter of form, a relic of antiquity, and serves no useful purpose”).
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
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
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.

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Unlike a bill’s long title, a designated short title does 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
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
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
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
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
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
footnote, the state supreme court suggested that the law’s short title supported its reading because
it included the language “to create 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
divisions of a bill. In Figure 10, section 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
chapter 41 of title 18 of the U.S. Code is separately entitled “Publication of personally identifiable
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).
113 Id.
114 Doe v. Boy Scouts of America, 224 P.3d 494, 498 (Idaho 2009).
115 Id. 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

in the U.S. Code if the bill were enacted. See Detailed Guide to the U.S. Code, supra note 50 (noting that the “basic
unit of every Code title is the section,” that in positive law titles, Code sections have “the exact same text as in the
enacting and amending acts,” and that even in non-positive law titles, if a Code section “is based on an act section that
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),
https://www.congress.gov/114/bills/hr6478/BILLS-114hr6478ih.pdf.

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
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
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
117 See 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”).
118 See, e.g., 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
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
contested issue in the case was whether the language “involving a minor or ward” modified:
(1) “aggravated sexual abuse,” “sexual abuse,” and “abusive sexual conduct”; or (2) only the last
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
“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,
tracked the language of a federal offense that also triggered enhanced penalties under
section 2252. The Court explained:
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
sexual-abuse offenses involving adults or minors and wards. And it places those federal
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
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
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
state sexual-abuse predicate crimes in § 2252(b)(2): “aggravated sexual abuse,” “sexual
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
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
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
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
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
However, because these statements tend to describe the legislation’s general purposes, they may

119 See Lockhart v. United States, 136 S. Ct. 958, 961, 964 (2016) (quoting 18 U.S.C. § 2252(b)(2)).
120 Id. at 961.
121 Id. at 964.
122 Id. (footnote omitted). Cf. id. 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
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
abuse of children. And if any doubt remained, the rule of lenity would command the same result. . . .”).
123 Id. at 964 (majority opinion).
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
of the Court’s holding that Congress was not acting within its enumerated Commerce Clause power). Cf. District of
Columbia v. Heller, 554 U.S. 570,577 (2008) (noting that a “prefatory clause” in a constitutional provision may
“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
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
beginning of a bill declaring Congress’s findings or goals for the legislation.126 Whereas clauses
may appear in joint resolutions before the resolving clause (e.g., Figure 11), but are used less
frequently in modern bill 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 infra), as a preamble.128

125 See supra “The Role of Statutory Interpretation.”
126 See Preamble, BLACK’S LAW DICTIONARY (11th ed. 2019) (noting that a preamble “often consists of a series of

clauses introduced by the conjunction whereas,” 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,
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
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/
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. See, e.g., 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.
128 See, e.g., 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
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
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.Res. 49, 115th Cong. (2017) (as enrolled), https://www.congress.gov/115/bills/sjres49/BILLS115sjres49enr.pdf.

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
129 Cf. 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 Hawaii v. Office of Hawaiian Affairs, the Supreme Court
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
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
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
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
“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
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
“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
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
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
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
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
disfavored.139

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
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
quotation marks and citations omitted)).
130 Hawaii v. Office of Haw. Affairs, 556 U.S. 163, 175 (2009); see also 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
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”).
131 556 U.S. 163, 168 (2009) (internal quotation marks omitted) (quoting Joint Resolution to Acknowledge the 100 th
Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, Pub. L. No. 103-150, 107 Stat. 1513
(1993)).
132 Id. at 167.
133 Id. at 168 (internal quotation marks and citation omitted).
134 Id.
135 Id. at 170.
136 Id. at 175 (internal quotation marks omitted) (quoting 177 P.3d 884, 901 (Hawaii 2008)).
137 Id. at 168–69 (quoting 107 Stat. at 1512).
138 Id. at 173–75.
139 Id. 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).

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Sense of Congress Provisions
Some bills contain a provision stating the “sense of Congress” about a particular topic addressed
by the legislation (e.g., Figure 12).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
House, Aug. 4, 2017), https://www.congress.gov/115/bills/s88/BILLS-115s88rfh.pdf#page=3.

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
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
court held that the language “neither require[d] nor prohibit[ed] any action on the part of the
states or any other party.”144
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
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

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. See, e.g., 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
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.”). See supra “Report Terminology on Types of
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
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 “should 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
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)).
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 (1 st Cir. 1992).
144 Id.
145 See generally 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)); id. at 16
(“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.”).

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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
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
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
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
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
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
that the sense of Congress language “merely corroborates what . . . the statute as a whole already
provides.”153

Declarations of Policy
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
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
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

language seeking to bind the President, the provision could raise separation-of-powers issues. Cf. Zivotofsky, 576 U.S.
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.”).
147 See Zivotofsky, 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 systematically favor the unitary President over the plural
Congress in disputes involving foreign affairs”).
148 See Thomas M. Franck & Clifford A. Bob, The Return of Humpty-Dumpty: Foreign Relations Law After the Chadha
Case, 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
disagreement with a particular course of action taken by the executive branch).
149 See, e.g., 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
penalty [was] authorized by the Act”).
150 See, e.g., 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
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). But cf. 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
judicial interpretation of a treaty,” and reasoning that it did “not in any way alter the plain text of the [statute’s] other
provisions”).
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)).
153 Id. at 1116.
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
policy in the Merchant Marine Act of 1936 as a statement of Congress’s “goals”).
155 See, e.g., S.D. Warren Co. v. Me. Bd. of Envt’l Prot., 547 U.S. 370, 386 (2006) (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
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 in Figure 13. But,
as noted above, even an expressly stated policy position will not, in and of itself, create thirdparty rights and obligations.156
Figure 13. Statement of Policy

Source: Israel Anti-Boycott Act, S. 720, 115th Cong. § 3 (as introduced, Mar. 23, 2017),
https://www.congress.gov/115/bills/s720/BILLS-115s720is.pdf#page=4.

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
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
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

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)
(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
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”). But see 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
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
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”).
156 See 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
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, inter alia, 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
which to infer a private right of action).
157 See generally CRS Report R45732, The Federal Tort Claims Act (FTCA): A Legal Overview, by Kevin M. Lewis.

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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
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
policy to determine whether a particular governmental action was sufficiently based on public
policy considerations to be insulated from judicial review.161
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
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
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:
“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
Commission in Schaffer Transportation Company v. United States, the Supreme Court referred to
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
“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
Congress.”166
The Court’s focus on the National Transportation Policy in Schaffer Transportation can be traced
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
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
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
Federal Aviation Administration (FAA)—charged with “safety regulation”—and the Civil
Aeronautics Board (CAB)—responsible for “economic regulation.”168 The amended declaration
158 28 U.S.C. § 2680(a).
159 See CRS Report R45732, The Federal Tort Claims Act (FTCA): A Legal Overview, supra note 157, at 19.
160 See 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
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]”).
161 See Baldassaro v. United States, 64 F.3d 206, 211–12 (5th Cir. 1995) (reasoning that a declaration that “an efficient
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
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.
163 Id.
164 Id.
165 355 U.S. 83, 87–88 (1957).
166 Id. at 88 (internal citation omitted).
167 See id. 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
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.

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set forth factors that the CAB “shall consider” in evaluating new air transportation services,
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
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
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
or combined with proposed congressional findings. In the example in Figure 14, the purpose of
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.
§ 2(b) (as introduced, Apr. 26, 2018), https://www.congress.gov/115/bills/hr5630/BILLS-115hr5630ih.pdf#page=3.

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
example, in interpreting the Fair Credit Reporting Act, the Supreme Court construed the phrase
“increase in any charge for . . . insurance” to include an unfavorable initial rate due to an
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

§§ 1371–87 (1976)).
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).
170 Air Line Pilots Ass’n Int’l, 667 F.2d at 188.
171 See 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
of the CDA,” expressed, inter alia, in the “policy” statements in § 230(b)); EEOC v. First Catholic Slovak Ladies
Ass’n, 694 F.2d 1068, 1070 (6th Cir. 1982) (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
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
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.
§ 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
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
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
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.g., Figure 15) or alongside statements of purpose.
Figure 15. Findings

Source: Innocent Sellers Fairness Act, H.R. 1118, 115th Cong. § 2 (as introduced, Feb. 16, 2017),
https://www.congress.gov/115/bills/hr1118/BILLS-115hr1118ih.pdf#page=2.

Like other prefatory text, congressional findings generally do not have independent legal effect or
“override the plain meaning of specific provisions”—regardless of whether they are included in
the bill itself or in the legislative record.175 Nevertheless, two considerations may weigh in favor
173 Id. at 62; see also 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] grand bargain” as reflected in “its statement of purpose”).
174 See 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
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
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
statements of findings and purpose to override the plain meaning of specific provisions of the Act”); see also Astrue v.

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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 perception of Congress’s intended meaning when weighing competing
interpretations of a disputed provision.178 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, discussed below.179 In such situations, judicial deference to formal
congressional findings may reflect broader concerns about the judiciary second-guessing the
legislature’s factual determinations in scrutinizing the challenged law.180
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
Commerce Clause.181 The Supreme Court has interpreted that Clause to empower Congress to
regulate, among other things, intrastate economic activity that has a “substantial effect” on
interstate commerce.182 On occasion, the Court has concluded that Congress exceeded its
Commerce Clause power by regulating noneconomic activity within the province of the states
“based solely on [the activity’s] aggregate effect on interstate commerce.”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 See 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 “[c]arrying more weight” than a finding in the conference report on the bill);
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
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
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
physical impairment that precluded the performance of some isolated, unimportant, or particularly difficult manual task
to qualify as disabled.” Id. 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. See ADA Amendments Act of 2008,
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.
2020) (recognizing that the 2008 amendments superseded the Court’s interpretation in Toyota Motor Manufacturing).
179 See 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.”).
180 See Hodel, 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’
express findings, set out in the Act itself, about the effects of surface coal mining on interstate commerce.”).
181 U.S. CONST. art. I, sec. 8, cl. 3; 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). See generally 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”:
(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”).
183 United States v. Morrison, 529 U.S. 598, 617 (2000); see also Lopez, 514 U.S. at 567–68 (stating the need to
distinguish “between what is truly national and what is truly local”).

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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 Second, the Court cautioned that “the existence of congressional findings is not
sufficient, by itself, to sustain the constitutionality of Commerce Clause legislation.”186
Morrison involved a provision in the Violence Against Women Act of 1994 (VAWA) that created
a cause of action for victims of gender-motivated violence.187 The Court observed that VAWA was
“supported by numerous findings regarding the serious impact that gender-motivated violence has
on victims and their families.”188 However, the Court found the relationship between gendermotivated violence—itself “noneconomic” conduct—and interstate commerce too attenuated,
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
Constitution’s distinction between national and local authority.”189
Outside the Commerce Clause context, there are at least three other areas where congressional
findings may come into p

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR46484. Public record. Not legal advice.