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This article tells the story of the enactment of the bill containing Section 2013. It also provides context for Congress's widespread practice of inserting substantive provisions into appropriations bills, and argues that this practice is inappropriate and counterproductive. Enacted in haste, at the end of a lengthy and historically contentious legislative session plagued by threats of an unfunded government, Section 203 was slipped into a bill about a wholly different topic - "keeping the government open and functioning" - without input from key legislators or stakeholders. Hence, its difficulties were foreseeable.

Part II of this piece offers background about the DMF and its uses, early warnings regarding security problems, and sources of identity theft other than the DMF. Part III uncovers the process of enacting Section 203, the congressional opposition to it, and the adverse consequences of Section 203's enactment. The article concludes that Section 203's enactment, as accomplished by bypassing congressional rules, was both misguided and a diversion from correcting profound governmental failures involving long-term fraudulent use of personal information. This enactment process threatens to exacerbate the public's profound lack of confidence in Congress - the only branch created to be democratic - and to erode core democratic principles. Part VI offers theories, based in both law and equity, that challenge the current process to revive some confidence in government.


Originally published by Mitchell Hamline Law Review in 2016.

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