Incorporation by Reference and the Government Shutdown Prevention Act

In a recent post, co-blogger Steve questions whether a provision in H.R. 1255, the “Government Shutdown Prevention Act of 2011,” would be unconstitutional if enacted.  The supposedly-problematic text apparently reads as follows:

If the House has not received a message from the Senate before April 6, 2011, stating that it has passed a measure providing for the appropriations for the departments and agencies of the Government for the remainder of fiscal year 2011, the provisions of H.R. 1, as passed by the House on February 19, 2011, are hereby enacted into law.[1]

Frankly, when I saw this, I wasn’t quite sure what the problem was.  By my reading, the above basically amounts to “incorporation by reference,” i.e.,

A method of making a secondary document part of a primary document by including in the primary document a statement that the secondary document should be treated as if it were contained within the primary one.[2]

In the case of H.R. 1255, the “primary document” is H.R. 1255 itself, the “secondary document” is H.R. 1.  And since H.R. 1255 states that “the provisions of H.R. 1 . . . are hereby enacted into law,” H.R. 1255 would appear to contain “a statement that the secondary document should be treated as if it were contained within the primary one.”  Though I’ll confess I’ve not looked into the matter in detail, I don’t see why incorporation by reference would render a federal statute unconstitutional.  After all, even if H.R. 1 was passed only by the House, the provision giving H.R. 1 the force of law – § 2(a) of H.R. 1255 – would still have to receive passage by both houses, and a presidential signature (or a bicameral veto override), in order to become the law of the land.

It’s also worth noting that H.R. 1255’s use of incorporation by reference is hardly unprecedented.  A brief text search of the Statutes at Large uncovered several prior uses of the technique.  For example:

[T]here is hereby enacted into law the amendment made by section 901 of S. 2582, as reported by the Committee on Foreign Relations of the Senate on April 18, 1984, except for subsection (c) of the section enacted by this proviso . . . .[3]

Also:

There is hereby enacted into law H.R. 3750, as introduced in the House of Representatives on December 11, 1987.[4]

Also:

Provided further, That the amendment in the nature of a substitute to the text of H .R. 4645, as ordered reported from the Committee on Banking, Finance and Urban Affairs on September 22, 1988, is hereby enacted into law: Provided further, That title I of H .R. 5263 as passed by the House of Representatives on September 20, 1988, is hereby enacted into law . . . Provided further, That notwithstanding any other provision of this Act, titles I and III of S. 2757 as reported by the Senate Committee on Foreign Relations on September 7, 1988, are hereby enacted into law . . . .[5]

Also:

The provisions of Senate Resolution 89, of the One Hundredth Congress, agreed to January 28, 1987, are hereby enacted into law, effective on the date such Senate Resolution 89 was agreed to.[6]

Also:

S. 2681, as passed by the Senate on September 12, 1992, is hereby enacted into law. [7]

Also:

Section 423 of H.R. 1361, as passed the House of Representatives on May 9, 1995, is hereby enacted into law.[8]

Also:

The provisions of section 5 of the bill, H.R. 1691 (104th Congress), as passed the House of Representatives on October 30, 1995, are hereby enacted into law.[9]

Also:

The provisions of the following bills of the 106th Congress are hereby enacted into law:

(1) H.R. 5547, as introduced on October 25, 2000.

(2) H.R. 5548, as introduced on October 25, 2000.[10]

Also:

The provisions of H.R. 5526 of the 106th Congress, as introduced on October 24, 2000, are hereby enacted into law.[11]

Also:

The provisions of H.R. 5408 of the 106th Congress, as introduced on October 6, 2000, are hereby enacted into law.[12]

Also:

The provisions of the following bills of the 106th Congress are hereby enacted into law:

(1) H.R. 5482, as introduced on October 18, 2000.

(2) H.R. 5483, as introduced on October 18, 2000.[13]

Also:

Section 4013 of the Uniform Per Student Funding Formula for Public Schools and Public Charter Schools Amendment Act of 2005, passed on first reading on May 10, 2005 (engrossed version of Bill 16–200), is hereby enacted into law.[14]

Also:

Notwithstanding any other provision of law, the reciprocal rights-of-way and easements identified on the map numbered 92337 and dated June 15, 2005, are hereby enacted into law.[15]

Admittedly, frequent Congressional usage is insufficient to render a practice constitutional.[16] Nevertheless, if “incorporation by reference” is unconstitutional, then it’s an unconstitutional practice that’s been perpetrated many times, by both Democratic & Republican Congresses, over the past quarter-century.


[1] Government Shutdown Prevention Act of 2011, H.R.1255, 112th Cong. § 2(a) (2011).

[2] Black’s Law Dictionary 834 (9th ed. 2009).

[3] Act of Oct. 12, 1984, Pub. L. No. 98-473, 98 Stat. 1837, 1885 (1984).

[4] Act of Dec. 22, 1987, Pub. L. No. 100-202, 101 Stat. 1329, 1329-134 (1987).

[5] Act of Oct. 1, 1988, Pub. L. No. 100-461, § 555, 102 Stat. 2268, 2268-036 (1988) (footnotes omitted).

[6] Legislative Branch Appropriations Act, 1990, Pub. L. No. 101-163, § 9, 103 Stat. 1041, 1046 (1989).

[7] Department of Defense Appropriations Act, 1993, Pub. L. No. 102-396, § 9168, 106 Stat. 1876, 1948 (1992).

[8] Department of Transportation and Related Agencies Appropriations Act, 1997, Pub. L. No. 104-205, § 341, 110 Stat. 2951, 2975 (1996).

[9] Housing Opportunity Program Extension Act of 1996, § 5(a), Pub. L. No. 104-120, 110 Stat. 834, 835 (1996).

[10] Act of Dec. 21, 2000, Pub. L. No. 106-553, § 1(a), 114 Stat. 2762, 2762 (2000).

[11] Act of Nov. 6, 2000, Pub. L. No. 106-429, § 101, 114 Stat. 1900 (2000).

[12] Act of Oct. 30, 2000, Pub. L. No. 106-398, § 1, 114 Stat. 1654 (2000).

[13] Act of Oct. 27, 2000, Pub. L. No. 106-377, § 1(a), 114 Stat. 1441 (2000).

[14] Transportation, Treasury, Housing and Urban Development, the Judiciary, the District of Columbia, and Independent Agencies Appropriations Act, 2006, Pub. L. No. 109-115, § 133, 119 Stat. 2396, 2522 (2005).

[15] Safe, Accountable, Flexible, Efficient Transportation Equity Act, Pub. L. No. 109–59, § 4408, 119 Stat. 1144, 1777 (2005).

[16] Cf. INS v. Chadha, 462 U.S. 919, 944 (1983) (“[T]he fact that a given law or procedure is efficient, convenient, and useful in facilitating functions of government, standing alone, will not save it if it is contrary to the Constitution. . . . our inquiry is sharpened rather than blunted by the fact that congressional veto provisions are appearing with increasing frequency in statutes which delegate authority to executive and independent agencies . . . .”).

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