Incorporation by Reference & the Constitution

As it turns out, the constitutionality of incorporation by reference in federal statutes has been previously considered, by minds far more knowledgeable than my own.  A decade ago, Hershey Corporation (of Hershey Kisses fame) got annoyed by one particular usage of incorporation by reference, and decided to sue in federal court.  The challenged provision read:

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

. . . .

(8) H.R. 3428 of the 106th Congress, as introduced on November 17, 1999 . . . .[1]

Hershey argued that this provision’s enactment violated the Presentment Clause.[2] The court was not impressed:

Laws containing cross-references do not appear to be uncommon. While no case has addressed the Presentment Clause challenge, several courts have upheld laws containing cross-references. See e.g., United States v. Sharpnack, 355 U.S. 286, 293, 2 L. Ed. 2d 282, 78 S. Ct. 291 (1958)(“Wether Congress sets forth the assimilated laws in full or assimilates them by reference, the result is as definite and as ascertainable as are the state laws themselves.”); United States v. Menominee Indian Tribe of Wisconsin, 694 F. Supp. 1373, 1375 (E.D. Wis. 1988)(“It is well established that Congress may incorporate by reference state criminal laws in federal criminal statutes.”); Robertson v. Seattle Audubon Soc’y, 503 U.S. 429, 433 n.1, 118 L. Ed. 2d 73, 112 S. Ct. 1407 (1992)(involving an appropriations act in which Congress incorporated by reference, among other things, a list of spotted owl habitat areas contained in a Forest Service environmental impact statement).

For the foregoing reasons, the Court is not persuaded by plaintiff’s interpretation of the Presentment Clause. Congress may incorporate by cross-reference in its bills if it chooses to legislate in that manner. Nothing in the Presentment Clause, or elsewhere in the Constitution, demands otherwise.[3]

Since § 2(a)[4] of the Government Shutdown Prevention Act contains language similar to the provision challenged in Hershey, that precedent suggests that § 2(a) is likewise constitutional.

More recently, the General Accounting Office considered the matter.  In a letter report, the agency defined incorporation by reference as follows:

As a legislative tool, incorporation by reference is the use of legislative language to make extra-statutory material part of the legislation by indicating that the extra-statutory material should be treated as if it were written out in full in the legislation.[5]

After discussing various precedents regarding the practice, the report concluded:

Legislative incorporation by reference is well founded historically and the Supreme Court has accepted it as a legislative tool without objection.[6]

As previously noted, I was disinclined to reject the constitutionality of incorporation by reference.  After reading the above, I’m even less inclined to do so now.


[1] Act of Nov. 29, 1999, Pub. L. No. 106-113, § 1000(a), 113 Stat. , 1536 (1999).

[2] U.S. Const. art. I, § 7, cl. 2.

[3] Hershey Foods Corp. v. USDA, 158 F. Supp. 2d 37, 41 (D.D.C. 2001), aff’d, 293 F.3d 520 (D.C. Cir. 2002).

[4] Government Shutdown Prevention Act of 2011, H.R.1255, 112th Cong. § 2(a) (2011) (“[T]he provisions of H.R. 1, as passed by the House on February 19, 2011, are hereby enacted into law.”).

[5] U.S. Gov’t Accountability Office, B-316010, Consolidated Appropriations Act, 2008—Incorporation by Reference 4 (2008), available at http://www.gao.gov/decisions/appro/316010.pdf.

[6] Id. at 9.

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