united-states legal-history legal-writing
Why is the structure of the US Code so poor? (And would it even be legal to reorganize it?)
<p>In the process of researching the legality of coil guns in Massachusetts (University engineering project), I stumbled across Cornell's Legal Information Institute, which offers what appears to be a complete rendition of the entire United States Code, and decided to do a little exploring.</p>

<p>While I learned a lot of interesting tidbits of information perusing the U.S.C., I was amazed at how poorly it was structured. I know politics is sticky business, and not everything is going to be clean, but what I saw struck me as exceptionally bad.</p>

<p>In software design, there's a widely used phrase to describe certain particularly jumbled programs: spaghetti code. This term can be applied to programs which have poor data structure designs, are poorly organized, or simply just don't make logical sense in terms of the way they are laid out. The name comes from how these attributes can be applied to a bowl of spaghetti; it's jumbled and tangled together, and you would be required to really dig deep to find, say, the two ends of a single strand.</p>

<p>As someone who is very active in open-source programming, a development style that fundamentally breeds spaghetti code, my first reaction upon seeing the U.S.C. in its entirety was, <strong>"Oh my god, this is spaghetti code."</strong> The organization is so horribly jumbled.</p>

<p>For example, in regards to the Titles, why would topics that sound so incredibly broad, such as Title 6 - Domestic Security, and Title 12 - Banks and Banking, be in the same structural level as Title 23 - Highways, or Title 24 - Hospitals and Asylums?</p>

<p>Why do we have Title 14 - Coast Guard and Title 32 - National Guard when there is Title 10 - Armed Forces? The Coast Guard and the National Guard are clearly both a subset of the Armed Forces.</p>

<p>Why is a "machine gun" defined under Title 26 - Internal Revenue Code, when every single other type of firearm seems to be defined under Title 18 - Crimes and Criminal Procedure? It's not as if Title 26 is redefining a machine gun for the purpose of tax law; Title 18 actually states something along the lines of "Machine gun, as defined in Title 26 / Section etc etc".</p>

<p>I could go on and on about the various inconsistencies that I see in regards to how the U.S.C. is structured. Maybe I see it as more of a problem due to my involvement in software development, a field in which structure is paramount to success, but this just doesn't sit right with me. That leads me to my questions (finally):</p>

<p><strong>1. Are there any underlying reasons behind the nonsensical structure of U.S.C. titles? Is it simply a case of "This is how it's been for awhile, don't fix what isn't broken." or is there more to it than that?</strong></p>

<p><strong>2. Pretend that over the next few election cycles, a super majority of software engineers and computer scientists are elected to the House and Senate. These people take structure very seriously, and they are very unhappy with the structure of the U.S.C. Barring the even more ridiculous case of Congress repealing everything and passing the exact same laws again, just under different Titles/Chapters/etc, would it be possible for Congress to arbitrarily merge, combine, and delete Titles, and to rearrange the location of laws, definitions, etc? Are there laws/regulations governing this?</strong></p>

<blockquote>
  <p>Are there any underlying reasons behind the nonsensical structure of
  U.S.C. titles? Is it simply a case of "This is how it's been for
  awhile, don't fix what isn't broken." or is there more to it than
  that?</p>
</blockquote>

<p>First of all, the United States Code is generally not designed to be used by non-lawyers.</p>

<p>Second, one of the main ways to research case law interpreting a statute is by doing a boolean search on the code section of that statute. Every time you change a title or section number, you impair the ability of people doing legal research (both judges and lawyers) to find previous case law interpreting the meaning of the statute. </p>

<p>Third, you make it much harder to determine when the substance of the provision was originally enacted (e.g. if you want legislative history or to determine which of two conflicting statutory provisions was enacted first) since an annotated statute will often show when the current section was enacted but will not explain what it was derived from.</p>

<p>Fourth, the location of a statute within the context of other statutory sections often informs its meaning. Machine gun may have one definition in two or three laws, and a different one in two or three other laws, and there may be yet other laws where machine gun is an undefined term. Moving a statutory section from one part of the code to another could influence the default definition that one uses for an undefined term changing substantive law.</p>

<p>Fifth, usually a new codification will also involve some drafting standards, for example, to add gender neutrality or to avoid notoriously ambiguous constructions (like 250 word sentences). But, it isn't at all uncommon for very slight changes like the position of a comma or the formatting of a section with multiple indents, to result in a change of the likely meaning of a somewhat ambiguous statute and it is pretty much impossible to know a priori when a statutory section is ambiguous until you are confronted with a fact pattern that makes the ambiguity in that context clear. This isn't confined to obscure laws of little importance. For example, the question of whether Obamacare applied in states that hadn't set up their own exchanges hinged on these kinds of issues.</p>

<p>None of this is to say that you should never recodify the statutes. But, a basically aesthetic motivation that mostly matters to people who make up a tiny portion of the main users of the product (non-lawyers) that poses multiple threats to how statutes will be located using legal research tools, and how it will be interpreted once located, means that reorganizing statutes is not something to be done lightly.</p>

<p>In short, there are a lot of serious, substantive costs that can accompany a recodification of a law.</p>

<p>As a result, re-codification is most often done only as part of an overall omnibus reform of an area of law on the merits where the interest in being able to track prior interpretive caselaw and determine the original meaning of a statute enacted long ago is at its lowest.</p>

<blockquote>
  <p>Barring the even more ridiculous case of Congress repealing everything
  and passing the exact same laws again, just under different
  Titles/Chapters/etc, </p>
</blockquote>

<p>This is not so ridiculous. </p>

<p>Most states have done exactly that one or two times in their history (sometimes more for older states). Also, many newly admitted to the union states also do something similar. For example, the basic template for the statutes in Colorado was the statutes of the state of Illinois. Basically, the first time around, somebody started with an Illinois statute book, eliminated Illinois specific laws and laws that they didn't like, rearranged them and adopted them as the original statutes of the State of Colorado (it may have actually been version 2.0 after a stopgap set of statutes, I don't recall which).</p>

<p>Also, most states completely repeal and readopt all of their statutes in codified form on the recommendation of the codifier to a legislative committee, to reflect the acts passed in the previous session, every year. This doesn't involve overhauls really, but in principle is a complete repeal and reenactment.</p>

<p>While the federal government has never overhauled the entire U.S. Code in this manner, it has been done at the level of individual titles of the U.S. Code. </p>

<p>For example, the most recent major reorganization and overhaul of the structure of the Internal Revenue Code (Title 26) was in 1986. The copyright laws were overhauled in the late 1970s. Both of those accompanied major substantive changes in those areas of law.</p>

<p>Another major recodification of many parts of the U.S. Code took place following 9-11 in connection with the creation of the Department of Homeland Security, which reorganized both the bureaucracy and the associated U.S. Code language associated with dozens of federal agencies.</p>

<blockquote>
  <p>would it be possible for Congress to arbitrarily
  merge, combine, and delete Titles, and to rearrange the location of
  laws, definitions, etc? Are there laws/regulations governing this?</p>
</blockquote>

<p>Yes. Congress can do so any time it wants by passing a bill (it would be the longest bill ever - dozens of volumes long) doing so, and getting the President to sign it. The legislative process would be exactly the same as any other bill.</p>

<p>Congress <em>is</em> reorganizing the U.S. Code. <a href="http://uscode.house.gov/codification/legislation.shtml;jsessionid=3CB1E6F6D8883632B6BBEF467809CD7F">Positive Law Codification</a>:</p>

<blockquote>
  <p>Section 205(c) of House Resolution No. 988, 93d Congress, as enacted into law by Public Law 93-554 (2 U.S.C. 285b), provides the mandate for positive law codification.</p>
</blockquote>

<p><a href="http://uscode.house.gov/codification/positive_law_codification.pdf">Here</a> is a brochure.</p>

<p>You describe "Congress repealing everything and passing the exact same laws again" as "ridiculous", but that is actually what happens at the completion of a title's positive law codification. For example, <a href="https://www.gpo.gov/fdsys/pkg/PLAW-111publ314/pdf/PLAW-111publ314.pdf">the enactment of Title 51</a> repealed a bunch of Title 42 and its enacting legislation and re-enacted much of the same law anew in Title 51.</p>

<p>ohwilleke's answer is an excellent overview. I will attempt to resolve these specific examples you gave.</p>

<blockquote>
  <p>Why is a "machine gun" defined under Title 26 - Internal Revenue Code, when every single other type of firearm seems to be defined under Title 18 - Crimes and Criminal Procedure? It's not as if Title 26 is redefining a machine gun for the purpose of tax law; Title 18 actually states something along the lines of "Machine gun, as defined in Title 26 / Section etc etc".</p>
</blockquote>

<p>Actually, that is the exact reason that machine gun is under Title 26, for the purposes of tax law. Specifically so that anyone found to illegally own, manufacture, or operate a machine gun can be arrested and tried for tax evasion. This also includes short barreled rifles and shotguns, as well as supressors. All of these items require transfer and registration taxes, and the manufacturers of these items also pay a tax to be allowed to build them. The details and exceptions of these taxes are covered under the <a href="https://en.wikipedia.org/wiki/National_Firearms_Act">National Firearms Act of 1934</a>.</p>

<blockquote>
  <p>Why do we have Title 14 - Coast Guard and Title 32 - National Guard when there is Title 10 - Armed Forces? The Coast Guard and the National Guard are clearly both a subset of the Armed Forces.</p>
</blockquote>

<p>This one comes down to history. The National Guard was essentially the state militias, and was much larger than the Army, and under the control of the individual states. In 1903 the <a href="https://en.wikipedia.org/wiki/Militia_Act_of_1903">National Guard was created</a>, which stated how the Guard could be federalized, and also provided federal funding for equipment and training. Only in 1933 the National Guard became a component of the Army, but individual states could still mobilize their guard units.</p>

<p>The Coast Guard originally had a much different purpose, which was for collecting tariffs, with the additional orders of responding to distress calls and preventing piracy. When this began, the US had no naval forces, and the Coast Guard was called the Revenue Cutter Service, and was part of the Treasury Department. In 1915 the <a href="https://en.wikipedia.org/wiki/Coast_Guard_Act">modern Coast Guard</a> was essentially created as an armed forces branch when the Revenue Cutter Service was merged with the US Life Saving Service, but it was still under the control of the Treasury Department during peacetime. In 1939 the Lighthouse Service was added, and in 1942 the Bureau of Marine Inspection and Navigation was added. 1967 Coast Guard moved from Treasury to the DoT, and in 2003 it became part of the DHS.</p>

<p>Great question. </p>

<p>As a software developer and being somewhat neurotic about orderliness, it is worth pointing out that the analogy between the US Code and a software program <em>simply breaks down</em> when you consider some of the edge cases.  </p>

<p>Good software programs are managed over a more well-defined problem space (whatever the purpose of the software is), whereas the purpose of the US Code is to help adjudicate pretty much <em>anything that has ever happened before or might happen in the future which concerns the US</em>.  That makes it a lot tougher to put the US Code under the rules and best practices of software engineering :)</p>

<p>This may not be a very good, complete, answer for you.  It's maybe a deflection.  But what some of the other answers say about "yes, refactoring does happen", and "it happens, but its really complicated" kind of leads to this conclusion.  Why is it so "sensitive to initial conditions" (which is a short definition of "chaotic")?  Well, because the US Code has to handle literally every single actual occurrence of every permutation of actors and circumstances that has ever occurred and has been "important enough" to make a codified rule about. <em>That's</em> why it is so complicated and messy.</p>

<p>IANAL but my understanding is Laws are passed by congress/presidential approval.  Those laws can cover multiple topics and legal "areas" within the same bill.  The USC is "evidence" of the law, not the law itself as the "law" is the properly passed bill.  A bill that becomes law is then interpreted, dissected and the USC is then updated in the proper places.  The USC is indexed by general areas such that one can quickly find what is "legal" or not, and then if desired, can use the incorporated reference to find the actual "law".</p>
