§ 9.41    Notwithstanding Any Other Provision of Law

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The phrase "notwithstanding any other provision of law" is popular with people who have not really thought through a problem. They think that it is an effective way to ensure that a new rule prevails over an old rule--but they are wrong.

Courts do not take the phrase very seriously, and for good reason: Even when Congress does use the phrase, Congress usually does not intend that all other laws are to be disregarded. When Congress says, "Notwithstanding any other provision of law, the Secretary shall ensure that X, Y, and Z happen," Congress usually does not mean that the secretary may violate criminal laws and appropriations laws and administrative procedure laws and personnel laws and a whole host of other general laws. And yet that is literally what Congress seems to have said.

A definitive statement from the Supreme Court is hard to come by, but several federal appeals courts have held that the phrase is not always to be taken literally and does not require that all otherwise applicable laws be disregarded.

For example, when Congress passed a law that required the award of timber sale contracts "notwithstanding any other provision of law," Congress meant to disregard environmental laws only; Congress did not mean to disregard other laws, such as federal contracting requirements. Oregon Natural Resources Council v. Thomas, 92 F.3d 792 (9th Cir. 1996).

Likewise, when Congress directed that a bridge be constructed "notwithstanding any other provision of law," Congress did not mean to disregard historic preservation laws. D.C. Federation of Civic Associations v. Volpe, 459 F.2d 1231 (D.C. Cir. 1971), cert. denied, 405 U.S. 1030.

On the other hand, the court will not adopt a construction that "renders meaningless" the phrase. Schneider v. United States, 27 F.3d 1327, 1331 (8th Cir. 1994).

In short, a court will try to give "notwithstanding any other provision of law" some meaning, but it is never clear precisely what that meaning will be. The provision might end up disregarding too many laws or too few, and might or might not disregard the ones with which your client was really concerned.

In most cases, when the client proposes to use "notwithstanding any other provision of law," try to identify the specific laws with which the client is concerned, and state that they do not apply or are to be disregarded.

The phrase usually represents sloppy or lazy thinking. There once was a proposal to state that the Department of Energy "may use project review groups notwithstanding any other provision of law." What could this possibly mean?

The drafter eventually determined that a project review group was an advisory group comprised of personnel of the department as well as personnel of one or more contractors of the department. The department already had authority to use this sort of group, so a rule of discretion ("may use project review groups") was not really what was needed.

The real problem turned out to be that a project review group qualified as an "advisory committee" under the Federal Advisory Committee Act, and that Act places burdens on advisory committees that the department did not want placed on project review groups. (Notably, however, a group that included only department personnel, and not also contractor personnel, did not qualify as an advisory committee and would not be so burdened.) The final language was precise and clear and did not cover too much or too little:

"An officer or employee of a management and operating contractor of the Department of Energy, when serving as a member of a group reviewing or advising on matters related to any one or more management and operating contracts of the Department, shall be treated as an officer or employee of the Department for purposes of determining whether the group is an advisory committee within the meaning of section 3 of the Federal Advisory Committee Act (5 U.S.C. App.)."

Section 3112 of the National Defense Authorization Act for Fiscal Year 2004 (Public Law 108-136; 117 Stat. 1743; 42 U.S.C. 7234 note).