Justice Souter, delivered the opinion of the Court.
The Comptroller of the Currency recently relied on a statutory provision enacted in 1916 to permit national banks located in small communities to sell insurance to customers outside those communities. These cases present the unlikely question whether Congress repealed that provision in 1918. We hold that no repeal occurred.
Almost 80 years ago, Congress authorized any national bank "doing business in any place the population of which does not exceed five thousand inhabitants . . . [to] act as the agent for any fire, life, or other insurance company." Act of Sept. 7, 1916, 39 Stat. 753. In the first compilation of the United States Code, this provision appeared as section 92 of Title 12. See 12 U. S. C. § 92 (1926 ed.); see also United States Code editions of 1934, 1940, and 1946. The 1952 edition of the Code, however, omitted the insurance provision, with a note indicating that Congress had repealed it
Despite the absence of section 92 from the Code, Congress has assumed that it remains in force, on one occasion actually amending it. See Garn-St. Germain Depository Institutions Act of 1982, § 403(b), 96 Stat. 1511; see also Competitive Equality Banking Act of 1987, § 201(b)(5), 101 Stat. 583 (imposing a 1-year moratorium on section 92 activities). The regulators concerned with the provision's subject, the Comptroller of the Currency and the Federal Reserve Board, have likewise acted on the understanding that section 92 remains
The ruling came on a request by United States National Bank of Oregon (Bank), a national bank with its principal place of business in Portland, Oregon, to sell insurance through its branch in Banks, Oregon (population: 489), to customers nationwide. The Comptroller approved the request in 1986, interpreting section 92 to permit national bank branches located in communities with populations not exceeding 5,000 to sell insurance to customers not only inside but also outside those communities. See App. to Pet. for Cert. in No. 92-507, pp. 74a-79a. The Bank is the petitioner in the first of the cases we decide today; the Comptroller of the Currency, the Office of the Comptroller of the Currency, and the United States are the petitioners in the other.
Respondents in both cases are various trade organizations representing insurance agents. They challenged the Comptroller's decision in the United States District Court for the District of Columbia, claiming the Comptroller's ruling to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" under the Administrative Procedure Act (APA), 5 U. S. C. § 706(2)(A). Respondents argued,
Respondents had not asked the District Court to rule that section 92 no longer existed, and they took the same tack before the Court of Appeals for the District of Columbia Circuit, merely noting in their opening brief that section 92 may have been repealed in 1918 and then stating that all the relevant players had assumed its validity. The Court of Appeals, nevertheless, directed the parties to be prepared to address the status of section 92 at oral argument, and after oral argument (at which respondents' counsel declined to argue that the provision was no longer in force) ordered supplemental briefing on the issue. In their supplemental brief, respondents urged the court to decide the question, but took no position on whether section 92 was valid law. The Court of Appeals did decide the issue, reversing the District Court's decision and remanding with instructions to enter judgment for respondents. The court found first that, though the parties had not on their own questioned the validity of section 92, the court had a "duty" to do so, Independent
The Bank and the federal parties separately petitioned for certiorari, both petitions presenting the question whether section 92 remains in force and the Bank presenting the additional question whether the Court of Appeals properly addressed the issue. Because of a conflict on the important question whether section 92 is valid law, see American Land Title Assn. v. Clarke, 968 F.2d 150, 151-154 (CA2 1992), cert. pending, Nos. 92-482, 92-645, we granted the petitions. 506 U.S. 1032 (1992). We now reverse.
Before turning to the status of section 92, we address the Bank's threshold question, whether the Court of Appeals erred in considering the issue at all. Respondents did not challenge the validity of section 92 before the District Court; they did not do so in their opening brief in the Court of Appeals or, despite the court's invitation, at oral argument. Not until the Court of Appeals ordered supplemental briefing on the status of section 92 did respondents even urge the court to resolve the issue, while still taking no position on the merits. The Bank contends that the Court of Appeals lacked the authority to consider whether section 92 remains the law and, alternatively, that it abused its discretion in doing so. There is no need to linger long over either argument.
There is no doubt, however, that from the start respondents' suit was the "pursuance of an honest and actual antagonistic assertion of rights by one [party] against another," Muskrat v. United States, 219 U.S. 346, 359 (1911) (internal quotation marks and citation omitted), that "valuable legal rights . . . [would] be directly affected to a specific and substantial degree" by a decision on whether the Comptroller's ruling was proper and lawful, Nashville, C. & St. L. R. Co. v. Wallace, 288 U.S. 249, 262 (1933), and that the Court of Appeals therefore had before it a real case and controversy extending to that issue. Though the parties did not lock horns over the status of section 92, they did clash over whether the Comptroller properly relied on section 92 as authority for his ruling, and "[w]hen an issue or claim is properly before the court, the court is not limited to the particular legal theories advanced by the parties, but rather retains the independent power to identify and apply the proper construction of governing law," Kamen v. Kemper Financial Services, Inc., 500 U.S. 90, 99 (1991), even where the proper construction is that a law does not govern because it is not in force. "The judicial Power" extends to cases "arising under . . . the Laws of the United States," Art. III, § 2, cl. 1, and a court properly asked to construe a law has the constitutional power to determine whether the law exists, cf. Cohens v. Virginia, 6 Wheat. 264, 405 (1821) ("[I]f, in any controversy depending in a court, the cause should depend on the validity of such a law, that would be a case arising under
Nor did prudence oblige the Court of Appeals to treat the unasserted argument that section 92 had been repealed as having been waived. Respondents argued from the start, as we noted, that section 92 was not authority for the Comptroller's ruling, and a court may consider an issue "antecedent to . . . and ultimately dispositive of" the dispute before it, even an issue the parties fail to identify and brief. Arcadia v. Ohio Power Co., 498 U.S. 73, 77 (1990); cf. Cardinal Chemical Co. v. Morton Int'l, Inc., ante, at 88-89, n. 9 (addressing a legal question as to which the parties agreed on the answer). The omission of section 92 from the United States Code, moreover, along with the codifiers' indication that the provision had been repealed, created honest doubt about whether section 92 existed as law, and a court "need not render judgment on the basis of a rule of law whose nonexistence is apparent on the face of things, simply because the parties agree upon it." United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J., concurring in judgment). While the Bank says that by initially accepting the widespread assumption that section 92 remains in force, respondents forfeited their right to have the Court of Appeals consider whether the law exists, "[t]here can be no estoppel in the way of ascertaining the existence of a law," South Ottawa v. Perkins, 94 U.S. 260, 267 (1877). In addressing the status of section 92, the Court of Appeals did not stray beyond its constitutional or prudential boundaries.
The Court of Appeals, accordingly, had discretion to consider the validity of section 92, and under the circumstances did not abuse it. The court was asked to determine under
Though the appearance of a provision in the current edition of the United States Code is "prima facie" evidence that the provision has the force of law, 1 U. S. C. § 204(a), it is the Statutes at Large that provides "legal evidence of laws," § 112, and despite its omission from the Code section 92 remains on the books if the Statutes at Large so dictates.
First. Notes of circulation.
In 1913 Congress amended Rev. Stat. § 5202 by adding a fifth exception to the indebtedness limit. The amendment was a detail of the Federal Reserve Act of 1913 (Federal Reserve Act or 1913 Act), which created Federal Reserve banks and the Federal Reserve Board and required the national banks formed pursuant to the National Bank Act to become members of the new Federal Reserve System. Federal Reserve Act, ch. 6, 38 Stat. 251; see P. Studenski & H. Krooss, Financial History of the United States 255-262 (2d ed. 1963). The amendment came in § 13 of the 1913 Act, the first five paragraphs of which set forth the powers of the new Federal Reserve banks, such as the authority to accept and discount various forms of notes and commercial paper, including those issued by national banks. Federal Reserve Act, § 13, 38 Stat. 263-264. This (subject to ellipsis) followed:
38 Stat. 264. The next and final paragraph of § 13 authorized the Federal Reserve Board to issue regulations governing the rediscount by Federal Reserve banks of bills receivable and bills of exchange. Ibid.
In 1916, Congress enacted what became section 92. It did so as part of a statute that amended various sections of the Federal Reserve Act and that, in the view of respondents and the Court of Appeals, also amended Rev. Stat. § 5202. Act of Sept. 7, 1916, 39 Stat. 752 (1916 Act). Unlike the 1913 Act, the 1916 Act employed quotation marks, and those quotation marks proved critical to the Court of Appeals's finding that the 1916 Act placed section 92 in Rev. Stat. § 5202. After amending § 11 of the Federal Reserve Act, the 1916 Act provided, without quotation marks,
Ibid. Then followed within quotation marks several paragraphs that track the first five paragraphs of § 13 of the 1913 Act, the modifications generally expanding the powers of Federal Reserve banks. After the quotation marks closed, this appeared:
"First. Notes of circulation.
39 Stat. 753-754. The second-to-last paragraph just quoted is the first appearance of the provision eventually codified as 12 U. S. C. § 92. After the quotation marks closed, the 1916 Act went on to amend § 14 of the Federal Reserve Act, introducing the amendment with a phrase not surrounded by quotation marks and then placing the revised language of § 14 within quotation marks. 39 Stat. 754. The pattern was repeated for amendments of §§ 16, 24, and 25 of the Federal Reserve Act. Id., at 754-756.
The final relevant statute is the War Finance Corporation Act, ch. 45, 40 Stat. 506 (1918 Act), which in § 20 amended Rev. Stat. § 5202 by, at least, adding a sixth exception to the indebtedness limit:
. . . . .
40 Stat. 512.
The argument that section 92 is no longer in force, adopted by the Court of Appeals and pressed here by respondents, is
A reader following the path of punctuation of the 1916 Act would no doubt arrive at the opposite conclusion, that the statute added section 92 to Rev. Stat. § 5202. The 1916 Act reads, without quotation marks, Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows.
A statute's plain meaning must be enforced, of course, and the meaning of a statute will typically heed the commands of its punctuation. But a purported plain-meaning analysis based only on punctuation is necessarily incomplete and runs the risk of distorting a statute's true meaning. Along with punctuation, text consists of words living "a communal existence," in Judge Learned Hand's phrase, the meaning of each word informing the others and "all in their aggregate tak[ing] their purport from the setting in which they are used." NLRB v. Federbush Co., 121 F.2d 954, 957 (CA2
Here, though the deployment of quotation marks in the 1916 Act points in one direction, all of the other evidence from the statute points the other way. It points so certainly, in our view, as to allow only the conclusion that the punctuation marks were misplaced and that the 1916 Act put section 92 not in Rev. Stat. § 5202 but in § 13 of the Federal Reserve Act.
The first thing to notice, we think, is the 1916 Act's structure. The Act begins by stating [t]hat the Act entitled
". . ." [39 Stat. 752]
". . ." [39 Stat. 752]
". . ."
". . ." [39 Stat. 754]
". . ." [39 Stat. 754]
". . ." [39 Stat. 754]
". . ." [39 Stat. 755]
The paragraph eventually codified as 12 U. S. C. § 92 is one of several inside the quotation marks that open after the
Further evidence that the 1916 Act amended only the Federal Reserve Act comes from the 1916 Act's title: An Act To amend certain sections of the Act entitled "Federal reserve Act," approved December twenty-third, nineteen hundred and thirteen. During this era the titles of statutes that revised pre-existing laws appear to have typically mentioned each of the laws they revised. See, e. g., Act of Sept. 26, 1918, ch. 177, 40 Stat. 967 ("An Act to amend and reenact sections four, eleven, sixteen, nineteen, and twenty-two of the Act approved December twenty-third, nineteen hundred and thirteen, and known as the Federal reserve Act, and sections fifty-two hundred and eight and fifty-two hundred and nine, Revised Statutes"). Cf. ch. 6, 38 Stat. 251 ("Federal
One must ask, however, why the 1916 Act stated that Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows, 39 Stat. 753, if it did not amend Rev. Stat. § 5202. The answer emerges from comparing the 1916 Act with the statute that all agree it did amend, the Federal Reserve Act of 1913, and noticing that the identical directory phrase appeared in § 13 of the 1913 Act, which did amend Rev. Stat. § 5202. As enacted in 1913, § 13 contained several paragraphs granting powers to Federal Reserve banks; it then included a paragraph amending Rev. Stat. § 5202 (by adding a fifth exception to the indebtedness limit for "[l]iabilities incurred under the provisions of the Federal Reserve Act"), a paragraph that began Section fifty-two hundred and two of the Revised Statutes of the United States is hereby amended so as to read as follows. 38 Stat. 264. The 1916 Act, in the portion following the phrase introducing a revision of § 13 of the 1913 Act, proceeded in the same manner. It contained several paragraphs granting powers to Federal Reserve banks, paragraphs that are somewhat revised versions of the ones that appeared in the 1913 Act, followed by the phrase introducing an amendment to Rev. Stat. § 5202 and then the language of Rev. Stat. § 5202 as it appeared in the 1913 Act. The similarity of the language of the 1916 and 1913 Acts suggests that, in order to amend § 13 in 1916, Congress restated the 1913 version of § 13 in its entirety, revising the portion it
In defending the Court of Appeals's contrary conclusion that the 1916 Act amended Rev. Stat. § 5202, respondents argue that any other reading would render meaningless the language in the 1916 Act that purports to amend that section of the Revised Statutes. But the 1916 Congress would have had good reason to carry forward that portion of the 1913 Act containing Rev. Stat. § 5202, even though in 1916 it did not intend to amend it any further. The 1916 Act revised § 13 of the 1913 Act by completely restating it with a mixture of old and new language (providing that § 13 is amended "to read as follows," 39 Stat. 752), and a failure to restate Rev. Stat. § 5202 with its 1913 amendment could have been taken to indicate its repeal.
The final and decisive evidence that the 1916 Act placed section 92 in § 13 of the Federal Reserve Act rather than Rev. Stat. § 5202 is provided by the language and subject matter of section 92 and the paragraphs surrounding it, paragraphs within the same opening and closing quotation marks. In the paragraph preceding section 92, the 1916 Act granted the Federal Reserve Board authority to regulate the
39 Stat. 753 (emphasis added). "[T]his Act" must mean the Federal Reserve Act, since it was § 13 of the Federal Reserve
We are not persuaded by respondents' argument that the term "this Act" in the discount-and-rediscount paragraph is an antecedent reference to "the Federal reserve Act," which is mentioned in the prior paragraph (in the fifth exception clause of Rev. Stat. § 5202). 39 Stat. 753; see also 38 Stat. 264 (1913 Act). If respondents are right, then the 1916 Act may be read as placing the discount-and-rediscount paragraph (and section 92, which necessarily accompanies it) in Rev. Stat. § 5202. But while the antecedent interpretation is arguable as construing "this Act" in the discount-andrediscount paragraph, that reading cannot attach to the other uses of "this Act" in the 1916 Act, see 39 Stat. 752, 753, 754, since none is within the vicinity of a reference to the Federal Reserve Act. Presumptively, "`identical words used in different parts of the same act are intended to have the same meaning,'" Commissioner v. Keystone Consol. Industries, Inc., ante, at 159 (quoting Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932)), and since nothing rebuts that presumption here, we are of the view that each use of "this Act" in the 1916 Act refers to the Act in which the language is contained. Rather than aiding respondents, then, the single full reference to "the Federal reserve Act" in the portion of the 1916 Act that amended Rev. Stat. § 5202 cuts against them. The fact that it was not repeated in the next paragraph confirms that the statute's quotation of Rev. Stat. § 5202 had ended.
Section 92 remains in force, and the judgment of the Court of Appeals is therefore reversed. These cases are remanded for further proceedings consistent with this opinion.
We note finally, since respondents raise the point, that our remark in Posadas v. National City Bank, 296 U.S. 497, 502 (1936), that the 1916 Act "amends [sections of the Federal Reserve Act], and § 5202 of the Revised Statutes" is obviously not controlling, coming as it did in an opinion that did not present the question we decide in these cases. Were we to consider our past remarks about the statutes we discuss here, we would also have to account for Commissioner v. First Security Bank of Utah, N. A., 405 U. S., at 401-402, and n. 12, in which the Court treated section 92 as valid law, despite noting its absence from the United States Code. Neither case tells us anything helpful for resolving this one, though together they contain a valuable reminder about the need to distinguish an opinion's holding from its dicta.