Archive for the Law Category

Infectious Disease & the Law

Posted in Law on 20110928 by Avenging Sword

In response to comments by H.M. Stuart & one Lee Pierson regarding Steve’s recent vaccination post, I figured I’d take a stab at the legal & constitutional aspects of mandatory vaccination & quarantine measures.  Note:  I’m a layman, not a lawyer, and I haven’t studied this matter in detail; so take what follows with a grain of salt.

1.       From a federal constitutional standpoint, mandatory vaccination is not analogous to the ACA’s individual mandate provision, since vaccination is primarily mandated by state – not federal – law.[1]  Such laws are enacted as part of states’ police power, which does not implicate the strictures of Article I.

2.       State sovereignty is not absolute; the Constitution places many limits upon state action,[2] and empowers federal courts[3] (and sometimes Congress[4]) to enforce these limits.  However, state vaccination mandates have long been deemed consistent with these limits.[5]

3.       Federal & state quarantine authorities derive from the Commerce Clause & state police powers, respectively.[6]  Federal law primarily concerns the military,[7] as well as interstate & foreign travel.[8]  The primary constitutional limit upon quarantine powers isn’t the First Amendment’s association clause, but rather due process & the writ of habeas corpus.[9]

Corrections & comments welcome.


[1] Kathleen S. Swendiman, Cong. Research Serv., RS21414, Mandatory Vaccinations: Precedent and Current Laws 2-4 (2011), available at http://www.fas.org/sgp/crs/misc/RS21414.pdf.  Federal vaccination mandates do extend to immigrants & the military.  Id. at 7-8.

[2] See, e.g., U.S. Const. art. I, § 10; U.S. Const. amend. XIV, § 1.

[3] See, e.g., Randy E. Barnett, The Original Meaning of the Judicial Power, 12 S. Ct. Econ. Rev. 115, 123-125 (2004); Saikrishna B. Prakash & John C. Yoo, The Origins of Judicial Review, 70 U. Chi. L. Rev. 887, 948-951, 958, 960, 964 (2003).

[4] See, e.g., U.S. Const. amend. XIV, § 5.

[5] Jacobson v. Massachusetts, 197 U.S. 11 (1905).

[6] Kathleen S. Swendiman & Jennifer K. Elsea, Cong. Research Serv., RL33201, Federal and State Quarantine and Isolation Authority 3-4 (2007), available at http://www.fas.org/sgp/crs/misc/RL33201.pdf.

[7] 42 U.S.C. § 266 (2006).

[8] 42 U.S.C. § 264 (2006).

[9] See Swendiman & Elsea, supra note 6, at 12-15.

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Compensated Emancipation, the Civil War, and Alien Space Bats

Posted in Law, Mil on 20110818 by Avenging Sword

A while back, co-blogger Red Emma pointed to a page on Smart Dope, which discussed the question of whether it would have been cheaper to emancipate slaves & compensate their owners in 1860 than to fight the Civil War.  Admittedly, the answer to this question isn’t quite straightforward:  on the one hand, we can’t be sure how much compensation slaveowners would’ve demanded in such a hypothetical situation;[1] and OTOH we can only guess at how the US economy would’ve fared absent the Civil War.  Aside from such uncertainties, however, such a cost comparison raises the question of whether or not the compensated emancipation was even feasible at the time of the Civil War.  For several reasons, I’m doubtful that it was.

First, it appears compensated emancipation may not have been politically feasible.  By 1860, abolitionists were apparently quite opposed to paying sinners (i.e., slaveowners) not to sin (i.e., own slaves).[2]  Even before the advent of this moral stance, however, abolitionist compensated emancipation proposals were repeatedly rejected by antebellum slaveowners, who consistently opposed any proposal that smacked of weakening their “peculiar institution.”[3]  Moreover, even if these two interest groups had accepted compensated emancipation, one wonders whether the American people at large would have followed suit.  Historically, it took the experience of the Civil War to bring the bulk of northerners around to supporting universal emancipation;[4] and it took enforcement at gunpoint to convince slaveowners to accept that outcome.  Absent the war, how likely is it that Americans would have willingly accepted a quadrupling of their tax burden[5] to satisfy slaveowners and a group of radicals?

Economic factors also militated against acceptance of compensated emancipation.  Plantation slavery was profitable,[6] and its rate of return was competitive with other antebellum investments.[7]  Moreover, slave labor was more efficient than its free counterpart,[8] owing to greater intensity of labor per hour.[9]  Finally, given slaves’ adeptness at industrial work,[10] it seems improbable that slaveowners would’ve endorsed compensated emancipation for fear that industrialization might doom slavery.  Absent a miraculous mass conversion to abolitionism, it seems unlikely slaveowners would have voted against their pocketbooks.

Finally, the antebellum Constitution erected significant barriers to federal involvement in any emancipation scheme.[11]  Enumeration of powers restricted federal interference with slavery in the states.[12]  The Fifth Amendment imposed further limits upon any federal emancipation scheme, by requiring Due Process and “just compensation” for any federal taking of private property.[13]  A constitutional amendment could have bypassed these restrictions, but for the reasons mentioned above, I don’t think such a provision would have commanded enough political support to win ratification.  Nor does it seem likely that the Taney Court – which handed down the Dred Scott decision – would have accepted the sort of creative abolitionist constitutional interpretations proposed by Lysander Spooner and the like.[14]  The final alternative would have been enactment of compensated emancipation at the state level; but there appears to have been little antebellum support for such measures in the slave states.[15]

For all the foregoing reasons, I don’t think compensated emancipation was a viable alternative in 1860.  One other aspect of the comparison between war and compensated emancipation bears mentioning, however:  both sides’ underestimation of the war’s true costs.  When “the war came,” both Union & Confederacy thought it would be short & cheap;[16] only gradually did they come to realize that this wasn’t the case.  Claudia Goldin – the economist who made the aforementioned cost comparison – suggested as much:

In all probability, the major reason that the war was fought instead of there being a political settlement was that its costs were incorrectly anticipated. The North was obviously surprised by the tenacity of the South, and the South had counted on more support from Great Britain. It appears that neither side thought the war would last more than one or two years.[17]

Or, as the folks at Straight Dope more colorfully observed:

Perhaps had [Southern leaders] foreseen that their society was about to be dismantled with cannonballs they’d have taken the money, said ta-ta to their former chattels, and split for Nicaragua without further fuss.

Perhaps if Alien Space Bats had “Flashforwarded” America’s 1860 population a decade thence, antebellum Americans would have possessed the 20/20 hindsight we now enjoy, and both opposition to war and support for compensated emancipation might have been greater.  In reality, however, neither side had sufficient a priori knowledge of the Civil War’s true costs (in both blood & treasure).  Hence, we should not be surprised that neither made an accurate comparison of the relative costs & benefits of war vs. compensated emancipation.

Update 20110818:  Though I didn’t know it when I posted the above, yesterday Matt Yglesias argued that compensated emancipation would’ve been cheaper than fighting the Civil War.  In response, Ta-Nehisi Coates explained why compensated emancipation wasn’t a viable option.


[1] Claudia Goldin, the economist whose analysis (ahem) figures in the Smart Dope post, considers a compensated emancipation scheme wherein “the government buys slaves from their owners with bonds that pay six percent and are refunded, an equal amount each year, over a period of thirty years.”  Claudia Dale Goldin, The Economics of Emancipation, 33 J. Econ. Hist. 66, 74 (1973).  Goldin also notes, however, that the “internal rate of return on slave owning” was apparently “ten percent”.  Id. at 69 n.5.  If slaveowners had demanded this rate, rather than the 6% rate assumed by Goldin, then the price of compensation would’ve increased correspondingly.

[2] Betty L. Fladeland, Compensated Emancipation: A Rejected Alternative, 42 J. S. Hist. 169, 169 (1976) (acknowledging such opposition).

[3] Id. at 171-178, 180-182, 185.

[4] Michael Vorenberg, Final Freedom: The Civil War, The Abolition of Slavery, and the Thirteenth Amendment 38 (paperback ed. 2004) (2001) (noting that “[t]he animosity of northerners towards southern whites, the success of African American soldiers, and the increasing hostility of the [Union] slave states themselves towards slavery – all fueled the drive toward universal emancipation.”).

[5] In 1860, federal spending was $63,130,598, and revenues were $56,064,608.  Bureau of the Census, Historical Statistics of the United States 1789-1945, at 297, 300 (1949).  Goldin estimates “the capital value of all slaves in 1860 to have been 2.7 billion 1860 dollars,” and assumes that slaveowners would have been fully compensated for this amount via 6% bonds amortized over 30 years.  Goldin, supra note 1, at 74, 75 n.21.  The per-year cost of such bonds over 30 years would’ve been $196,152,061.02, or ~3.5 times higher than total federal revenue in 1860.

[6] Robert William Fogel, Without Consent or Contract: The Rise and Fall of American Slavery 63-64 (reissued paperback ed. 1994) (1989).

[7] James McPherson, Battle Cry of Freedom: The Civil War Era 97-98 (paperback ed. 2003) (1988).

[8] Fogel, supra note 6, at 74-75.

[9] Id. at 78-79.

[10] Id. at 107.

[11] See generally Paul Finkelman, Lincoln, Emancipation, and the Limits of Constitutional Change, 2009 Sup. Ct. Rev. 349, 352-355.  Note that these limitations did not necessarily apply in times of war or rebellion.  Id. at 365-366, 385-386.

[12] Id. at 352-354.

[13] Id. at 354-355.

[14] See generally Randy E. Barnett, Was Slavery Unconstitutional Before the Thirteenth Amendment?: Lysander Spooner’s Theory of Interpretation, 28 Pac. L.J. 977 (1997).

[15] Fladeland, supra note 2, at 178 (noting opposition to compensated emancipation in Virginia, South Carolina, and “the other states of the Deep South . . . .”).

[16] McPherson, supra note 7, at 333

[17] Goldin, supra note 1, at 83.

Debt Ceiling: Law Links & Humor

Posted in Law on 20110718 by Avenging Sword

A while back, I stumbled across a post which argued that Sec. 4 of the Fourteenth Amendment somehow renders the debt ceiling unconstitutional.  Although I found the argument interesting, I wasn’t entirely convinced.  However, since I have no life like reading about obscure constitutional law topics, I did make a note to research the issue further.  Then I promptly got distracted by other stuff.

Fast-forward a couple of months (yes, I can stay distracted a _long_ time):  Someone in the MSM notices this argument, and suddenly I’m seeing it all over the legal blogs I frequent.  Now the idea seems pretty much dead, but for anyone who’s interested having trouble sleeping, here’s some links to posts which struck me as noteworthy:

  • The Garrett Epps post that started it all.  (Plus sequels:  2, 3, 4.)
  • An interesting back-and-forth by Jack Balkin & Michael Stern regarding the original meaning of Sec. 4.  Balkin I, Stern I, Balkin II, Stern II.
  • A link to one of the few articles written on Sec. 4.  (There’s another from 1933, but I don’t think anyone’s posted that one online….)
  • A post by Michael McConnell, arguing that Sec. 4 actually prohibits the President from violating the debt ceiling.
  • Mark Tushnet relates Sec. 4 to the Take Care Clause of Article II.  \
  • A thoughtful Jack Balkin post discussing when the President can violate the debt ceiling.
  • An NYT Op-Ed by Lawrence Tribe denying that Sec. 4 allows the President to violate the debt ceiling.
  • Michael McConnell declares the Sec. 4 argument dead, and credits Tribe with killing it.

And now for the humor:  Here’s another Jack Balkin post, which outlines an apparently-legal way for the President to pay all the government’s bills for the rest of the year, even if Congress fails to raise taxes, cut spending, or increase the debt limit.  This one had me laughing out loud.

More seriously, setting aside his pot-shots at Reagan & Bush II, Balkin does make an interesting point; and I’m wondering what (if anything) the legal blogosphere will make of it.

Update:  Fixed final link to point to correct Balkin post.

Iraq, Libya, & “Gaffes”

Posted in Law, Mil on 20110625 by Avenging Sword

A recent post by one of my co-bloggers contains this rather intriguing line:

I must mention once again Obama’s refusal to pursue Congressional resolution supporting the war in Iraq.

I say “intriguing,” because I’m not entirely sure what this means.  On its face, this statement seems to imply a “Congressional resolution supporting the war in Iraq” is necessary or desirable, and that “Obama’s refusal to pursue” such a resolution is ill-advised.  Yet I don’t see why this is the case.

As I understand it, America’s ongoing military activities in Iraq are authorized by § 3(a) of 2002 Iraq AUMF.[1]  Admittedly, Bruce Ackerman & Oona Hathaway argue otherwise;[2] but, for the reasons given by Robert Chesney, I don’t find such an argument persuasive.  So ISTM there’s no need to criticize “Obama’s refusal to pursue Congressional resolution supporting the war in Iraq”, because no such resolution is necessary.  I am left to wonder why my co-blogger seems to be implying otherwise.

Then again, maybe my co-blogger isn’t implying any such thing, and instead I’m guilty of overanalyzing the above statement.  (Wouldn’t be the first time; just ask my fiancée.)  Maybe my co-blogger wasn’t implicitly endorsing the Ackerman-Hathaway argument at all, and “Congressional resolution supporting the war in Iraq” was simply a “gaffe” which accidentally substituted “Iraq” for “Libya.”  This reading finds support in the bulk of my co-blogger’s post, which focuses on the Libyan War.  More specifically, there’s the immediate context whence the above statement is excerpted:

Last but not least I must mention once again Obama’s refusal to pursue Congressional resolution supporting the war in Iraq. Indeed, he had 3 months to do that – and yet, he demonstrated no desire in convincing the Congress to provide a legal justification for the war against Libya. Indeed, his claims that the war in Libya is not a war (they call it now “kinetic military action”) are not taken seriously by anyone. [Emphasis added]

The irony of this latter reading, of course, is that my co-blogger’s post also implies that someone who makes “gaffes” is “intellectually sloppy” and “cannot be smart and educated . . . .”  Now, I don’t think such phrases accurately describe my co-blogger.  First, the above Iraq/Libya mix-up was only a single “gaffe.”  Second and more importantly, as I’ve previously suggested, ISTM “gaffes” don’t necessarily correlate with low IQ, lack of education, or being “intellectually sloppy”.  Still, certain lines about glass houses & stones, and pots & kettles, do come to mind….

Y’all may now highlight/laugh uproariously at/broadcast to the world any gaffes, slip-ups, whoppers, etc., which may be present in the foregoing.


[1] This provision reads, in relevant part,

The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to—

(1) defend the national security of the United States against the continuing threat posed by Iraq; and

(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107-243, § 3(a), 116 Stat. 1498, 1501 (2002).

[2] Bruce Ackerman & Oona Hathaway, Limited War and the Constitution: Iraq and the Crisis of Presidential Legality, 109 Mich. L. Rev. 447, 457-472 (2011).

Debt Limit & Default

Posted in Econ, Law on 20110421 by Avenging Sword

Recently, H.M. Stuart posed the following query:

I have heard it claimed recently that, if the current debt ceiling is not raised, the U.S. would not be able to cover the interest currently due on our national debt and other immediate obligations and would immediately default. . . .

I have also heard it claimed recently that . . . current U.S. Treasury receivables are easily sufficient to pay such current obligations many times over.

What is the true situation, as best you can discover?

What follows is my attempt at an answer.

1.  The term “default,” as applied to the federal government, is ambiguous.  It could either refer to:

  • Inability of the government to pay principal & interest on the outstanding stock of federal debt; or
  • Inability of the government to pay obligations besides federal debt, such as salaries, entitlements, tax refunds, etc.

Since “default” is commonly defined to mean “failure to meet financial obligations,” either of the above could be characterized as “default.”  Given that federal outlays currently exceed receipts by a considerable margin, default on non-debt obligations appears highly probable absent a debt-limit increase or massive tax increases.  This may well be highly unfortunate, but I doubt it would induce the financial catastrophe that would likely result from a default on the national debt.  It is this sort of default that I – and methinks many others – have in mind when they worry about the federal government defaulting.  Default on the national debt, however, is probably avoidable even if the debt limit stays constant.  Preventing debt default would have two aspects:  rolling over the current stock of federal debt, and paying interest on the debt.

2.  Rollover:  When a given portion of the national debt comes due, Treasury rolls it over:  it sells new issues of bonds & bills, and uses the resultant proceeds to pay off maturing debt issues.  These rollover operations could still continue even if fedgov hit the debt limit.  Since the debt limit provision merely establishes an overall limit on outstanding debt, and does not specifically prohibit new issues of debt, ISTM Treasury would still be able to issue new debt to “roll over” existing debt issues as they expired.

3.  Interest Payments:  Treasury would still receive revenue from taxes, and could use a portion of this revenue to pay interest on the debt.  Monthly Treasury Statements for the previous 18 months show monthly revenue exceeding gross interest payments by a significant margin.  According to the March 2011 MTS

  • Total Receipts were ~$1.02 trillion through March 2011, and were estimated at $2.17 trillion for the full fiscal year.
  • Gross interest payments were ~$216 billion through March 2011, and were estimated at $430 billion for the full fiscal year.

It therefore appears that Treasury could continue paying interest on the national debt even if the debt limit weren’t raised.

4.  Of course, the foregoing analysis assumes that Treasury prioritizes debt rollover & payment of interest above other obligations.  Arguably, Sec. 4 of the Fourteenth Amendment mandates such prioritization, by mandating that “The validity of the public debt of the United States, authorized by law . . . shall not be questioned.”  ISTM Treasury also has the power to prioritize in this manner.  Although I’m unaware of any court cases addressing this question, a 1985 GAO report did conclude that Treasury is “free to liquidate obligations in any order it finds will best serve the interests of the United States.”  A 1981 OMB memorandum implicitly concurs, by outlining which governmental functions that would continue during a lapse in appropriations.  Finally, even though a recent statement by Deputy Secretary of the Treasury Neal Wolin deemed prioritization “unworkable,” it stopped short of asserting that Treasury is prohibited from prioritizing in this manner.

5.  Given such prioritization, ISTM the US would avoid the ill effects suggested by the first three bullets of a recent Treasury Notes blog post, i.e., “default on legal obligations of the United States,” a default-induced economy-wide increase in “all borrowing costs,” and “prolonged and far-reaching negative consequences on the safe-haven status of Treasuries . . . .”  OTOH, as noted in a recent CRS report:

Even if the government continued paying interest, it is not clear whether creditors would retain or lose faith in the government’s willingness to pay its obligations. If creditors lost this confidence, the federal government’s interest costs would likely increase substantially.

The probability of such a crisis in confidence depends on the psychology of those holding Treasury securities.  I have insufficient data to guestimate this probability.

Incorporation by Reference & the Constitution

Posted in Law, Poli-ticks on 20110404 by Avenging Sword

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.

Incorporation by Reference and the Government Shutdown Prevention Act

Posted in Law, Poli-ticks on 20110403 by Avenging Sword

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 . . . .”).