Notice & Comment

Dead-Hand Control and “Magical Passwords”: Center for Investigative Reporting v. DOJ (Part I)

Congress enacts a statute, and includes within it a provision requiring that any future law enacted to limit the statute’s scope expressly refer to the statute. Is such a provision unconstitutional, and thus void ab initio?  The argument, which has some support in Supreme Court precedent, has recently been deployed by Ninth Circuit Judge Patrick J. Bumatay’s dissent in Investigative Reporting v. Department of Justice, 982 F.3d 668 (Dec. 3, 2020).  This is the first of a series of blogposts assessing this startling and largely obscure theory.

The OPEN FOIA Act and the Tiahrt Rider

The Freedom of Information Act (“FOIA”) generally mandates disclosure of documents upon request, but includes nine exemption allowing the Government to withhold records.  Exemption 3, 5 U.S.C. §552(b)(3), is essentially a savings clause, permitting the Government to withhold documents when other statutes require the Government to do so.[1] 

A provision in the OPEN FOIA Act of 2009, Pub. L. No. 111-83, § 564, 123 Stat. 2142, 2184 (2009), was meant to address the considerable controversy over which statutes qualify as Exemption 3 statutes.  The provision was also designed to ensure congressional awareness of the FIOA implications of potential future statutory provisions mandating agency withholding of documents.  As Senator Leahy, the bill’s prime sponsor explained:

Too often, legislative exemptions to FOIA are buried within a few lines of very complex and lengthy bills, and these new exemptions are never debated openly before becoming law. The consequence of this troubling practice is the erosion of the public’s right to know, and the shirking of Congress’ duty to fully consider these exemptions.

155 Cong. Rec. S3175 (March 17, 2009)(Sen. Leahy).[2]  The OPEN FOIA Act added to Exemption 3 the requirement that any future statute Congress intended to operate as an Exemption 3 statute must specifically reference Exemption 3 in its text.

The Tiahrt Rider, an annual rider to appropriations bills from 2003 until at least 2012, has limited the use of appropriated funds to disclose the contents of the Firearms Trace System database (“FTS database”) maintained by the Bureau of Alcohol, Tobacco and Firearms (“ATF”). [3] The database houses records tracking weapons from manufacturer or importer, through the firearms distribution chain, to the first retail purchaser.  Though almost identical in form to the riders enacted before the OPEN FOIA Act, the post-Act versions fail to reference Exemption 3.

The question of whether the post-2009 Tiahrt Riders should be recognized as Exemption 3 statutes has confounded courts.  Several district court judges in the D.C., Sixth, and Ninth Circuits had concluded that the post-OPEN-FOIA Tiahrt Riders qualify as Exemption 3 statutes. But in 2019 a district judge in the Southern District of New York disagreed.  I have discussed the district judge’s decision in a prior blogpost.  FOIA Exemption 3’s Clear Statement Rule and the Canon of Repeal by Comprehensive Revision: Everytown for Gun Safety v. ATF).  The conflicting opinions provided the setting for Investigative Reporting v. Department of Justice. 

Investigative Reporting and Judge Bumatay’s Dissent

In Investigative Reporting v. Department of Justice, a Ninth Circuit panel concluded that the post-OPEN-FOIA Tiahrt Riders did not qualify as Exemption 3 statutes because they have made no reference to that exemption.  But Judge Bumatay dissented.  

He argued that the OPEN FOIA Act’s express statement requirement placed unconstitutional restrictions on future legislatures and thus was void.  Accordingly, the OPEN FOIA Act requirement could have no impact upon the Tiahrt Rider’s effectiveness.  Thus the Tiahrt Rider precluded ATF provision of documents from the FTS database in response to FOIA requests.

Judge Bumatay argued that one legislature could not impose upon another any requirements for enacting legislation. Congress could not supplement the Constitution’s bicameralism and presentment requirements.[4]  In doing so, he, extended the standard Chadha-based argument that the bicameralism and presentment requirements are necessary for valid federal legislation,[5] to make an assertion that they are also sufficient and cannot be enhanced, even by Congress.

Judge Bumatay noted the historical provenance of the principle that “one legislature cannot abridge the powers of a succeeding legislature.” The Supreme Court had articulated the principle as early as Chief Justice Marshal’s seminal opinion in Fletcher v. Peck, 10 U.S. 87, 135 (1810).[6]  Judge Bumatay referenced other historical sources affirming the rule, among them the writings of William Blackstone and James Madison.[7] 

Moreover, Judge Bumatay asserted, entrenchment provisions, i.e., provisions that make legislation difficult to repeal or amend, run counter to the principles of representative democracy.[8] 

In Judge Bumatay’s view, the prohibition on binding future legislatures encompassed express-acknowledgement and express-statement laws like the OPEN FOIA Act requirement.[9]  He cited Marcello v. Bonds, 349 U.S. 302, 310 (1955),[10] and Dorsey v. United States, 567 U.S. 260, 274 (2012) (Breyer, J.),[11] in support. Justice Scalia made the point more colorfully in Lockhart v. United States, 546 U. S. 142 (2005): when “the plain import of a later statute directly conflicts with an earlier statute,” “the later enactment governs, regardless of its compliance with any earlier-enacted requirement of an express reference or other ‘magical password.’ ” Id. at 149 (Scalia, J., concurring)(emphasis added) Judge Bumatay explained that express acknowledgment and express statement laws qualify as a form of entrenchment because they require a later enacted law to expressly reference a prior law to successfully supersede that law.

Altogether, Judge Bumantay observed, the weight of constitutional history and precedent shows that where two statutes conflict, the later statute controls, despite attempts by past congresses to “hobble” later ones.  Capping his argument with a flourish, he proclaimed: “Simply put, Congress is not bound by the dead hand of the past—at least not when it comes to statutory law.” (Emphasis added.)

The majority refused to engage in a constitutional debate it clearly considered extraneous, responding simply:

because the 2010 and 2012 Tiahrt Riders do not explicitly purport to repeal the OPEN FOIA Act, this issue at least implicates the following: (1) whether there exists an “irreconcilable conflict” between the Rider and the OPEN FOIA Act, and (2) the Supreme Court’s “especially strong” aversion to implied repeals of standalone laws through appropriation riders. (citation omitted)

Within a few days of the Ninth Circuit’s decision, the Second Circuit reversed the Southern District of New York, and held that post-OPEN-FOIA Tiahrt Riders, like their pre-OPEN-FOIA predecessors qualified as Exemption 3 statutes. Everytown for Gun Safety Support Fund v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 984 F.3d 30 (Dec. 23, 2020). 

The Second Circuit panel, like Judge Bumatay, cited Dorsey in support of the proposition that Congress “was not bound to follow the specific-citation requirement it had adopted in the OPEN FOIA Act” when it enacted the post-OPEN-FOIA Tiahrt Riders.  Id. at 38.  The panel was heavily influenced by the specific context, in which “Congress reenacted a longstanding FOIA exemption that predated the OPEN FOIA Act.” Id. at 43.[12]  And the panel was careful to limit the scope of its holding, asserting: “Nothing in our decision today prevents the “background principle of interpretation” that the OPEN FOIA Act establishes from guiding the interpretation of other, more ambiguous statutes.”  Id. at 43.

Before I fully address the challenge posed by Judge Bumatay’s dissent, I will raise a preliminary question: how often does Congress include express acknowledgement or express statement provisions in legislation?

A Somewhat Empirical Digression—How Often Does Congress Establish Clear Statement Rules

Administrative law experts may recall an Administrative Procedure Act (APA) provision that establishes just such a “clear statement” requirement, 5 U.S.C. §559.  The APA established several provisions pertaining to administrative law judges.  Section 559 provides that no subsequent statute may be held “to supersede or modify” those provisions “except to the extent that it does so expressly.” [13] This provision was at issue in Marcello v. Bonds.

Two basic statutory provisions regarding the effect of legislative actions, dating back at least 150 years to the Dictionary Act, Act of Feb. 25, 1871, c 71, 16 Stat. 431 (available from Hein Online), include express statement clauses.  Each was codified in 1947 as a part of the codification of Title 1 of the United States Code.[14]  Section 108 of Title 1, section 3 of the Dictionary Act, provides that the repeal of a repealing act does not “revive” the former act (i.e., the act that the repealing act repealed), “unless it shall be expressly so provided.” Section 109 of Title 1, section 4 of the Dictionary Act, provides that Congress’ repeal of a statute does not “release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide.” That provision was at issue in Dorsey.

These sections of the Dictionary Act are examples of express statement provisions.  The principle established by the earlier act can be avoided by a future Congress if it merely expressly mandates that a contrary principle apply to a particular statute.  The earlier statue does not require future Congresses to specifically reference its express statement provisions.  Express acknowledgement provisions, on the other hand, require a future legislature to specifically reference the earlier statute in making it inapplicable to a statute it enacts.  The OPEN FOIA Act provision and the 5 U.S.C. §559 provide examples of such statutes,

The frequency with which Congress adopts express statement or express acknowledgement provisions is difficult to quantify.  However, a search of the U.S. Code for the phrase “specifically cites,” the language used in the OPEN FOIA provision, returned 10 results, seven of which are provisions regarding the disclosure of government information. I have set forth the list in Appendix A.[15]  But this is clearly not a comprehensive listing of express statement, or even express acknowledgment, provisions, Such provisions may be phrased differently than the OPEN FOIA Act requirement.

A Summary of My Upcoming Analysis

Past legislatures cannot bind future ones; a legislative body may always amend or repeal extant statutes.[16] Even that statement, however, is not invariably true.  State legislatures can authorize entry into contracts that bind future legislators to some extent.  While such statutes cannot divest the legislature of its regulatory powers, it can result in monetary damages.  United States Trust Co. v. New Jersey, 431 U.S. 1, 23-24 & nn.20 & 21 (1977).  And even monetary damages prevent a substantial impediment to statutory repeal or modification.    

The core principle, that present legislatures cannot bind future ones, would presumably apply to legislation that either purports to immunize a statute from repeal or requires subsequent legislatures to muster supermajorities to repeal or amend the statute.  In 2002-2003, three sets of renowned legal scholars engaged in a vibrant debate regarding the constitutional validity of such statutes.[17]  But a provision that leaves unchanged the simple majority requirements for enacting legislation should be distinguished from those that alter those requirements.  To encompass within the anti-entrenchment prohibition the former types of provisions, such as express acknowledgement or express statement requirements, is unsupportable.

Rules requiring express acknowledgement of a law before making it inapplicable imposes a quite modest impediment to statutory repeal. Indeed the “burden” imposed is no more onerous than the impediments to legislative action the Supreme Court has itself imposed in adopting various “clear statement” rules of its own. Nor do express acknowledgement provisions create much more of an impediment to future legislative action than the very act of legislating itself, i.e., establishing rights and obligations that will last indefinitely until amended or repealed.

And such express acknowledgment and express statement rules have at least two salutary effects. First, they ensure that subsequent legislatures enacting related statutes are aware of and consider the statutes they would be limiting or to which they would be creating exceptions. Second, such provisions assist the judiciary in one of its most critical tasks — “reconciling many laws enacted over time.”[18]

Under the theory that express acknowledgement/express statement requirements are unconstitutional, long-standing meta-statutes (i.e., statutes regarding statutes) might be constitutionally-suspect., Several provisions of the Dictionary Act,[19] including the provision specifying the precise wording of statutory enacting clauses, might well be considered unconstitutional.

Upcoming Installments of this Series

Part II of this series will discuss the court’s imposition of “plain statement” rules and discuss whether that practice provides a justification for Congress’ use of express statement and express acknowledgment provisions.  Part III will discuss judicial reconciliation of conflicting statutes, and assess whether express statement and express acknowledgement provisions add to the burden future legislatures already shoulder under judicial rules for reconciling statutes.  Part IV will discuss the remainder of the arguments for questioning the proposition that express statement and express acknowledgement statutes are unconstitutional and thus void.


Statutes Using the Term “Specifically Cites”

A. Provisions Regarding Government Information

1.  5 U.S.C. §552(b)(3) (FOIA Exemption 3)

2.  10 U.S.C. §2254a (establishing authority to withhold data files of military flight operations quality assurance systems, and providing that the exemption can be superseded only by a statute that “specifically cites” section 2254a).

3.  44 U.S.C. §3581. (establishing presumption of accessibility for the material produced by statistical agencies and units, unless a subsequent statute the specifically cites the section 3581 in providing otherwise).

4.  50 U.S.C. §3141. (authorizing withholding of operational files maintained by the Central Intelligence Agency, which can be superseded only by a statute that “specifically cites” and repeals or modifies section 3141).

5.  50 U.S.C. §3142 (authorizing withholding of operational files of the National Geospatial-Intelligence Agency, which can be superseded only by a statute that “specifically cites” and repeals or modifies section 3142).

6.  50 U.S.C. §3143. (authorizing withholding of operational files of the National Reconnaissance Office, which can be superseded only by a statute that “specifically cites” and repeals or modifies section 1343)

7.  50 U.S.C. §3144. (authorizing withholding of operational files of the National Security Agency, which can be superseded only by a statute that “specifically cites” and repeals or modifies section 1344).

8.  50 U.S.C. §3146. (authorizing withholding of certain files of the Office of the Director of National Intelligence, which can be superseded only by a statute that “specifically cites” and repeals or modifies section 1346).

B. Provisions in Other Statutes

1.  10 U.S.C. §8689 (establishing requirements for availability of funds relating to advanced naval nuclear fuel systems based on low-enriched uranium, which cannot be superseded “except by a provision of law that specifically supersedes, repeals, or modifies this section,” and further specifying that “a provision of law, including a table incorporated into an Act, that appropriates funds . . . for low-enriched uranium activities may not be treated as specifically superseding this section unless such provision specifically cites to this section”).

2.  25 U.S.C. §2719 (mandating application of provisions of the Internal Revenue Code to  the winnings from gaming or wagering operations shall apply to Indian gaming operations conducted on tribal lands, and permitting the provision to be superseded only by a provision that cites section 2719(d)).

3.  35 U.S.C. §210 (patent law provision stating that “[t]he Act creating this chapter shall be construed to take precedence over any future Act unless that Act specifically cites this Act and provides that it shall take precedence over this Act”).

[1] As originally enacted, Exemption 3 referred merely to matters that are “specifically exempted from disclosure by statute.” In Federal Aviation Administration v. Robertson 422 U.S. 255 (1975), the Supreme Court adopted a liberal interpretation of Exemption 3, overturning the more constrained construction of the exemption that had been developing in the lower courts.  In 1976, shortly after Robertson, Congress amended Exemption 3 to provide that a statute could only qualify as an Exemption 3 statute if it either “requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue” or “establishes particular criteria for withholding or refers to particular types of matters to be withheld.”  Pub. L. 94-409, § 5(b), Sept. 13, 1976.  See generally, Richard Olin Berner, The Effect of the 1976 Amendment to Exemption Three of the Freedom of Information Act, 76 COLUM. L. REV. 1029 (1976).

[2] The provision, originally introduced as S. 662, was co-sponsored by Senator Cornyn of Texas.  Ironically, given Senator Leahy’s complaint, the OPEN FOIA Act was “buried within a few lines” of a “complex and lengthy” bill, the Department of Homeland Security Appropriations Bill for 2010, which runs 48 pages in the Statutes at large.

[3] The 2003, 2004, 2005, 2006, 2008, 2009, 2010, and 2012 versions were quoted in an appendix to Everytown for Gun Safety Support Fund v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 984 F.3d 30 (Dec. 23, 2020)

[4] The United States Constitution differs from many state constitutions.  The latter often include requirements for legislative procedure in addition to bicameralism and presentment.  WILLIAM D, POPKIN, MATERIALS ON LEGISLATION: POLITICAL LANGUAGE AND THE POLITICAL PROCESS 1063 (5th ed. 2009).  Among such provisions are title and one-subject rules, rules prohibiting inclusion of substantive provisions in appropriations legislation, and rules setting forth the content of enacting clauses.  Congress generally specifies these types of legislative provisions by statute or the rules of the particular legislative chamber,

[5] See Bernard W. Bell, Legislative History Without Legislative Intent: The Public Justification Approach To Statutory Interpretation. 60 OHIO ST. L. J. 1, 52 (1999)(noting that, for new textualists, “[l]egislative history lacks legitimacy because it does not undergo this constitutionally-mandated enactment process”).

[6] Marshal’s statement was dicta.  Judge Bumatay cited United States v. Winstar Corp., 518 U.S. 839, 873 (1996), as a contemporary reaffirmation of the principle.

[7] See, e.g., 1 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 90 (1765) (“Acts of parliament derogatory from the power of subsequent parliaments bind not.”).

He could also have cited Theodore Sedgwick’s 1874 treatise on statutory interpretation, which canvassed pre-Revolutionary British precedents as well as Nineteenth Century American ones.  THEODORE SEGWICK, A TREATISE ON THE RULES WHICH GOVERN THE INTERPRETATION AND CONSTRUCTION OF STATUROTY AND CONSTITUTIONAL LAW 103 note (2d ed. 1874) (“[a] general rule adopted by the Legislature prescribing the forms and modes of future legislation, is repealed pro tanto by an act not complying with such rule”), and accordingly, “[o]ne Legislature cannot bind another to any mode of repeal.”); id. at 111 note.  .

[8] He cited James Madison in support of that proposition.  In Federalist No. 52, Madison observed: “Frequent elections are unquestionably the only policy by which” the legislature’s accountability to the People can be achieved.”  THE FEDERALIST NO. 52(James Madison)

[9] He did not use the terms “express acknowledgement” and “express statement.”  I have coined the terms, and will define them later in this post.

[10] Marcello involved a provision of the Administrative Procedure Act, 5 U.S.C. §559, which precluded Congress from altering the APA provisions regarding administrative law judges without expressly referring to that provision..  The post-APA statute establishing procedures for deportation hearings permitted special inquiry officers, who were subject to the supervision of INS investigatory and supervisory officials, to preside over such hearings.   Though this conflicted with the APA’s provisions, the deportation statute did not explicitly reference section 559.  The Court found the deportation statute’s provision valid nevertheless.  The Court explained that Congress’ intent to exempt statutes establishing deportations procedures from the APA’s provisions was clear from the text of the statute and the House and the Senate debates.  Indeed, the bill’s initial draft had expressly provided that the deportations provisions would govern notwithstanding section 559, but that provision was inexplicably removed early in the legislative process. Marcello v. Bonds, supra 349 U.S. at 309.

[11] Dorsey involved the implications of the Dictionary Act, which provided that a new criminal statute that repeals an older one shall not change the penalties “incurred” under that older statute “unless the repealing Act shall so expressly provide.”  But Dorsey provides, at best, only limited support for Judge Bumatay’s argument.  First, even in Dorsey, the Court took the general savings clause of the Act of 1871 as a background principle of interpretation, requiring that the clear import of the later statute be to exempt its provisions from the general statute.  Id. at 264, 274-75. Second, Dorsey involved a conflicting background statute passed at a later time. Id. at 275 (“Second, the Sentencing Reform Act sets forth a special and different background principle.”).

[12] It noted that Congress had enacted the first post-OPEN-FOIA Tiahrt Rider just two months after it had adopted the OPEN FOIA Act. Id. at 33.  And as I noted in my August 22, 2019 post regarding the district court opinion in Everytown:

“lawyers tend to re-use language that works, and change only as little as need be.  Thus, sponsors of legislation, committees considering legislative proposals, or members participating in floor debate may simply not realize that previously-sufficient language must be supplemented in view of the OPEN FOIA statute’s “new” requirements.”

[13] Section 559 provides:

[a] [s]ubsequent statute may not be held to supersede or modify this subchapter, chapter 7, sections 1305, 3105, 3344, 4301(2)(E), 5372, or 7521 of this title, or the provisions of section 5335(a)(B) of this title that relate to administrative law judges, except to the extent that it does so expressly.

[14] Act of July 30, 1947, Pub. L. 278, 61 Stat. 633 (available at Hein Online).

[15] My search of “extent +s express,” the phraseology used in section 559 returned 145 results, but many of these related to requirements for express provisions in documents other than statutes. My search using the term “subsequent statute” yielded 10 results that were not particularly relevant. My search of the term “’effect’ +3 ‘other statutes’” revealed 17 results, but all of those involved clauses saving other extant statutes. My search of “’effect’ +3 ‘subsequent statutes’” yielded only one result. 

[16] Judge Bumatay appears to assume that a particular legislature may limit its own power to repeal or amend a statute.  But what is the basis for such a limitation upon the anti-entrenchment doctrine? Legislative sentiment or popular will could change during a legislative session for all sorts of reasons — the results of special elections, untoward results of legislation adopted, or popular discontent with the legislation expressed through grass root activity.

Granted, the anti-entrenchment rule is commonly discussed in terms of subsequent legislatures. Apparently there was an English rule precluding introduction of any bill to amend or repeal a bill that had been adopted in that session of Parliament.  SEGWICK, supra note 7, at 97.  But Parliament made a practice of defeating that rule by insertion of a provision to the contrary in every bill enacted.  Id.  And that rule or practice limiting repeal or amendment in the same session did not take hold in the United States. Id. Indeed, the Sutherland treatise states: “A legislature can amend acts passed at a previous session of the same legislature or acts passed at the same session at which the amendment is made.”  1A SUTHERLAND STATUTORY CONSTRUCTION § 22:2 (7th ed.)

If the anti-entrenchment doctrine applies equally to later actions taken by the legislature in the same session and actions taken by subsequent legislators, Judge Bumatay’s constitutional rule may threaten legislatively-adopted procedural rules that require support by supermajorities, even if they purport to apply only to the sitting Congress.

[17] Eric A. Posner & Adrian Vermeule, Legislative Entrenchment: A Reappraisal, 111 YALE L.J. 1665 (2002); John O. McGinnis & Michael B. Rappaport, Symmetric Entrenchment: A Constitutional and Normative Theory, 89 VA. L. REV. 385, (2003); John C. Roberts & Erwin Chemerinsky, Entrenchment of Ordinary Legislation: A Reply to Professors Posner and Vermeule, 91 CAL. L. REV. 1773, 1777–78 (2003).  The seminal piece in this area is Julian N. Eule, Temporal Limits on the Legislative Mandate: Entrenchment and Retroactivity, 1987 AM. B. FOUND. RES. J. 379;

[18] FDA v. Brown and Williamson, 529 U.S. 120, 143 (2000)(quoting United States v. Fausto, 484 U. S. 439, 453 (1988) 

[19] The Act of Feb. 25, 1871, § 2, 16 Stat. 431.

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