[House Practice: A Guide to the Rules, Precedents and Procedures of the House]
[Appropriations]
[From the U.S. Government Printing Office, www.gpo.gov]
[[Page 67]]
APPROPRIATIONS
I. Introductory
Sec. 1. In General; Constitutional Background
Sec. 2. Power to Originate Appropriation Bills; House and Senate
Roles
Sec. 3. Definitions; Kinds of Appropriation Measures
Sec. 4. Committee and Administrative Expenses
Sec. 5. Authorization, Appropriation, and Budget Processes
Distinguished
II. General Appropriation Bills
A. Introductory
Sec. 6. Background; What Constitutes a General Appropriation Bill
Sec. 7. The Restrictions of Rule XXI Clause 2
Sec. 8. Committee Jurisdiction and Functions
Sec. 9. Duration of Appropriation
B. Authorization of Appropriation
Sec. 10. In General; Necessity of Authorization
Sec. 11. Duration of Authorization
Sec. 12. Sufficiency of Authorization
Sec. 13. Proof of Authorization; Burden of Proof
Sec. 14. Increasing Budget Authority
C. Authorization for Particular Purposes or Programs
Sec. 15. In General
Sec. 16. Agricultural Programs
Sec. 17. Programs Relating to Business or Commerce
Sec. 18. Defense Programs
Sec. 19. Funding for the District of Columbia
Sec. 20. Interior or Environmental Programs
Sec. 21. Programs Relating to Foreign Affairs
Sec. 22. Legislative Branch Funding
Sec. 23. Salaries and Related Benefits
D. Authorization for Public Works
Sec. 24. In General
[[Page 68]]
Sec. 25. Works in Progress
Sec. 26. -- What Constitutes a Work in Progress
III. Legislation in General Appropriation Bills; Provisions Changing
Existing Law
A. Generally
Sec. 27. The Restrictions of Rule XXI Clause 2
Sec. 28. Changing Existing Law by Amendment, Enactment, or Repeal;
Waivers
Sec. 29. Imposing Contingencies and Conditions
Sec. 30. -- Conditions Requiring Reports to, or Action by, Congress
Sec. 31. -- Conditions Imposing Additional Duties
Sec. 32. Language Describing, Construing, or Referring to Existing Law
Sec. 33. Particular Propositions as Legislation
B. Changing Prescribed Funding
Sec. 34. In General
Sec. 35. Affecting Funds in Other Acts
Sec. 36. Transfer of Funds-- Within Same Bill
Sec. 37. -- Transfer of Previously Appropriated Funds
Sec. 38. Making Funds Available Prior to, or Beyond, Authorized Period
Sec. 39. Funds ``To Remain Available Until Expended''
Sec. 40. Reimbursements of Appropriated Funds
C. Changing Executive Duties or Authority
Sec. 41. In General; Requiring Duties or Determinations
Sec. 42. Burden of Proof
Sec. 43. Altering Executive Authority or Discretion
Sec. 44. Mandating Studies or Investigations
Sec. 45. Granting or Changing Contract Authority
D. The Holman Rule; Retrenchments
Sec. 46. In General; Retrenchment of Expenditures
Sec. 47. Germaneness Requirements; Application to Funds in Other Bills
Sec. 48. Reporting Retrenchment Provisions
Sec. 49. Floor Consideration; Who May Offer
[[Page 69]]
IV. Limitations on General Appropriation Bills
Sec. 50. In General; When in Order
Sec. 51. Limitations on Amount Appropriated
Sec. 52. Limitations on Particular Uses
Sec. 53. Interference With Executive Discretion
Sec. 54. Imposing Duties or Requiring Determinations
Sec. 55. -- Duties Relating to Construction or Implementation of Law
Sec. 56. Conditional Limitations
Sec. 57. Exceptions to Limitations
Sec. 58. Limitations as to Recipients of Funds
Sec. 59. Limitations on Funds in Other Acts
V. Reappropriations
Sec. 60. In General
VI. Reporting; Consideration and Debate
A. Generally
Sec. 61. Privileged Status; Voting
Sec. 62. When Bills May Be Considered
Sec. 63. Debate; Consideration of Amendments
Sec. 64. -- Limitation Amendments; Retrenchments
Sec. 65. Points of Order-- Reserving Points of Order
Sec. 66. -- Timeliness
Sec. 67. -- Points of Order Against Particular Provisions
Sec. 68. -- Waiving Points of Order
Sec. 69. Amending Language Permitted to Remain
B. Senate Amendments
Sec. 70. In General
Sec. 71. Authority of Conference Managers
VII. Nonprivileged Appropriation Measures
Sec. 72. In General; Continuing Appropriations
Sec. 73. Supplemental Appropriations
Sec. 74. Appropriations for a Single Agency
Sec. 75. Consideration
[[Page 70]]
VIII. Appropriations in Legislative Bills
Sec. 76. In General
Sec. 77. What Constitutes an Appropriation in a Legislative Bill
Sec. 78. Points of Order; Timeliness
Sec. 79. -- Directing Points of Order Against Objectionable Language
Research References
U.S. Const. art. I Sec. 7
U.S. Const. art. I Sec. 9
4 Hinds Secs. 3553-4018
7 Cannon Secs. 1116-1720
7 Deschler Chs 25, 26
Manual Secs. 143, 671a, 671b, 694c, 726, 834-848, 1007-1012
I. Introductory
Sec. 1 . In General; Constitutional Background
The source of the congressional power to appropriate is found in
the Constitution. Article I (Sec. 7 clause 1) provides that no money
``shall be drawn from the Treasury'' but in consequence of
appropriations made by law. U.S. Const. art. I Sec. 9 clause 7.
Appropriation bills are the device through which money is permitted to
be ``drawn from the Treasury'' for expenditure. Deschler Ch 25 Sec. 2.
This constitutional provision is construed as giving Congress
broad powers to appropriate money in the Treasury and as a strict
limitation on the authority of the executive branch to exercise this
function. The Supreme Court has recognized that Congress has a wide
discretion with regard to the details of expenditures for which it
appropriates funds and has approved the frequent practice of making
general appropriations of large amounts to be allotted and expended as
directed by designated government agencies. Cincinnati Soap Co. v
United States, 301 US 308, 322 (1937).
Sec. 2 . Power to Originate Appropriation Bills; House and Senate
Roles
Under the Constitution, it is exclusively the prerogative of the
House to originate ``revenue'' bills. Article I Sec. 7 clause 1
provides:
All Bills for raising Revenue shall originate in the House of
Representatives; but the Senate may propose or concur with
Amendments as on other Bills.
The House has traditionally taken the view that this prerogative
encompasses the sole power to originate all general appropriation
bills. Deschler
[[Page 71]]
Ch 25 Sec. 13. (And on more than one occasion the House has returned
to the Senate a Senate bill or joint resolution appropriating money on
the ground that it invaded the prerogatives of the House. Deschler Ch
13 Secs. 20.2, 20.3.) In 1962, when the Senate passed a joint
resolution continuing funds for the Department of Agriculture, the
House passed a resolution declaring that the Senate's action violated
Article I Sec. 7 of the Constitution and was an infringement of the
privileges of the House. Deschler Ch 13 Sec. 20.2. In support of the
view that the House has the sole power to originate appropriation
bills, it has been noted that at the time of the adoption of the
Constitution the phrase ``raising revenue'' was equivalent to
``raising money and appropriating the same.'' The Supply Bills. S.
Doc. No. 872, 62d Cong. 1st Sess.
Sec. 3 . Definitions; Kinds of Appropriation Measures
Generally
An appropriation is a provision of law that provides budget
authority for federal agencies to incur obligations. ``Budget
authority'' means the authority provided by law to incur financial
obligations as defined by the Congressional Budget Act of 1974,
Sec. 3(2)(A).
An appropriation act is the most common means of providing budget
authority. Deschler Ch 25 Sec. 2. It has been held that language which
authorizes the Secretary of the Treasury to use the proceeds of
public-debt issues for the purposes of making loans is not an
appropriation. Deschler Ch 25 Sec. 4.43.
Types of Appropriation Acts
The principal types of appropriation acts are general,
supplemental, special, and continuing.
General appropriation bills provide budget authority to
agencies, usually for a specified fiscal year. Today, there are
13 regular appropriation acts for each fiscal year. See Sec. 6,
infra.
A supplemental appropriation is an act appropriating funds in
addition to those in the 13 regular annual appropriation acts.
Supplemental appropriations provide additional budget authority
beyond the original estimates for an agency or program. Such a
bill may be used after the fiscal year has begun to provide
additional funding. Supplemental bills may also be ``general''
bills within the meaning of Rules XI and XXI if covering more
than one agency. See Sec. 73, infra.
[[Page 72]]
A special appropriation provides funds for one government
agency, program or project. See Sec. 74, infra.
Continuing appropriations--also known as continuing
resolutions--provide temporary funding for agencies or programs
that have not received a regular appropriation by the start of
the fiscal year. They are used to permit agencies to continue
to function and to operate their programs until their regular
appropriations become law. Continuing resolutions are usually
of short duration, but they have been used to fund agencies or
departments for an entire fiscal year. See Sec. 72, infra.
Privileged and Nonprivileged Appropriations Distinguished
The term ``general appropriation bill'' is used to refer to those
bills which may be reported at any time and are privileged for
consideration. See Sec. 6, infra. A joint resolution continuing
appropriations may also be reported and called up as privileged if
reported after September 15 preceding the beginning of the fiscal year
for which it is applicable. Sec. 72, infra. Other continuing
appropriation measures, and special appropriation bills, are not
privileged and are therefor considered under other procedures which
give them privilege--such as a unanimous-consent agreement, a special
order reported from the Committee on Rules, or under suspension.
Deschler Ch 25 Secs. 6, 7.
To file a report on a general appropriation bill, a member of the
Committee on Appropriations seeks recognition and presents the report
as folows:
The Member: Mr. Speaker, by direction of the Committee on
Appropriations, I submit the report on the bill making
appropriations for the Departments of __________ for printing under
the rule.
The Speaker: The report is referred to the Union Calendar and
ordered printed.
Sec. 4 . Committee and Administrative Expenses
Generally
Funding for House committees is provided by resolutions, which
allocate resources made available to the House in certain accounts in
annual Legislative Branch Appropriation Acts. Authorization for
payment may be obtained pursuant to House Rule XI clause 5, which
provides detailed provisions for the consideration of a primary
expense resolution and for subsequent supplemental expense
resolutions. With the exception of the Appropriations Committee, the
rule applies to ``any committee, commission or other entity.'' Manual
Sec. 732a. Generally, see Committees.
The authority of all committees to incur expenses, including
travel expenses, is made contingent upon adoption by the House of
resolutions re-
[[Page 73]]
ported pursuant to this rule. See clause 1(b), Rule XI. The rule was
amended in 1977 to extend its applicability to committees and entities
other than standing committees. H. Res. 988, 93d Cong.
Appropriations from accounts for salaries and other administrative
expenses of the House are under the jurisdiction of the Committee on
House Oversight. Rule X clause 1(h). Manual Sec. 677a. A resolution
reported by that committee providing for such an expenditure is called
up as privileged. Rule XI clause 4(a). Such a resolution, if not
formally reported by the committee, may be called up and agreed to by
unanimous consent. 94-1, Jan. 23, 1975, pp 1160, 1161.
Sec. 5 . Authorization, Appropriation, and Budget Processes
Distinguished
There are three phases in the complex process by which Congress
allocates the fiscal resources of the federal government. There is an
authorization process under which federal programs are created,
amended and extended in response to national needs. There is an
appropriations process which provides funding for these programs. The
congressional budget process, which may place spending ceilings on
budget authority and outlays for a fiscal year and otherwise provides
a mechanism for allocating federal resources among competing
government programs, interacts with and shapes both of the other
phases. The budget process is treated separately in this work.
In the authorization phase, the legislative committees establish
program objectives and may set dollar ceilings on the amounts that may
be appropriated. Once this authorization stage is complete for a
particular program or department, the Appropriations Committee
recommends the actual level of ``budget authority,'' which allows
federal agencies to enter into obligations. Occasionally, with the
consent of the House, the appropriation process precedes the
authorization phase. Special orders reported from the Committee on
Rules are often utilized to expedite floor consideration of
appropriation bills. The House may decline to appropriate funds for
particular purposes, even though authorization has been enacted.
Deschler Ch 25 Sec. 2.1.
As a general rule, these two stages should be kept separate. With
certain exceptions, authorization bills should not contain
appropriations (Sec. 76, infra), and, again with certain exceptions,
appropriation bills should not contain authorizations (Secs. 27 et
seq., infra). This general rule is complicated by the fact that some
budget authority becomes available as the result of previously enacted
legislation and does not require current action by Congress. Examples
include the various trust funds for which the obligational authority
[[Page 74]]
is already provided in basic law. Sec. 9, infra. In addition some
spending, sometimes referred to as direct spending, is controlled
outside of the annual appropriations process. It is composed of
entitlement and other mandatory spending programs. Such programs are
generally funded by provisions of the permanent laws that created
them. See Budget Process. Moreover, the authorization for a program
may be derived not from a specific law providing authority for that
particular program but from more general existing law--``organic''
law--mandating or permitting such programs. Thus, a paragraph in a
general appropriation bill purportedly containing funds not yet
specifically authorized by separate legislation was upheld where it
was shown that all of the funds in the paragraph were authorized by
more general provisions of law currently applicable to the programs in
question. 95-2, June 8, 1978, p 16778.
II. General Appropriation Bills
A. Introductory
Sec. 6 . Background; What Constitutes a General Appropriation Bill
Today, much of the federal government is funded through the annual
enactment of 13 regular appropriations bills. The subjects of these
bills are determined by and coincide with the subcommittee
jurisdictional structure of the Committee on Appropriations. Typically
the 13 regular appropriations bills are identified as:
Agriculture, Rural Development and related agencies
Commerce, Justice, State, and Judiciary and related agencies
Defense Department
District of Columbia
Energy and Water Development
Foreign Operations, Export Financing, and related programs
Interior Department and related agencies
Labor-HHS-Education Departments and related agencies
Legislative Branch
Military Construction
Transportation Department and related agencies
Treasury, Postal Service, and general government
Veterans' Affairs, Housing and Urban Development, Independent
Agencies
The question as to just what constitutes a general appropriations
bill is important because the rule against inclusion of substantive
legislation in appropriation measures (see Sec. 27, infra) applies
only to ``general'' appropria-
[[Page 75]]
tion bills. Deschler Ch 26 Sec. 1.1; Manual Sec. 835. And the
requirement that unauthorized appropriations or ``legislative''
provisions not be in order in an appropriation bill applies only to
``general'' appropriation bills. Deschler Ch 25 Sec. 2. In the House,
the 13 regular appropriation bills and measures providing supplemental
appropriations to two or more agencies are general appropriations
bills. Deschler Ch 25 Sec. 6; Deschler Ch 26 Sec. 1.3.
Measures which have been held not to constitute a general
appropriation bill include:
A joint resolution continuing appropriations for government
agencies pending enactment of the regular appropriation bills.
Deschler Ch 26 Sec. 1.2.
A joint resolution making supplemental appropriations for one
agency. Deschler Ch 25 Sec. 7.4.
A joint resolution making an appropriation to a department for
a specific purpose. 92-1, Aug. 4, 1971, p 29384.
Bills providing special appropriations for specific purposes.
8 Cannon Sec. 2285.
A joint resolution providing an appropriation for a single
government agency and permitting transfer of a portion of those
funds to another agency. 96-1, Oct. 25, 1979, pp 29627, 29628.
A joint resolution reported from the Committee on
Appropriations transferring appropriated funds from one agency
to another. 96-2, Mar. 26, 1980, pp 6716, 6717.
A joint resolution transferring unobligated balances to the
President to be available for specified purposes but containing
no new budget authority. 100-2, Mar. 3, 1988, pp 3235-39.
A bill making supplemental appropriation for emergency
construction of public works. 7 Cannon Sec. 1122.
Sec. 7 . The Restrictions of Rule XXI Clause 2
Generally
Rule XXI clause 2 contains two restrictions relative to
appropriations bills: it (1) prohibits the inclusion in general
appropriation bills of ``unauthorized'' appropriations, except for
works-in-progress, and (2) prohibits provisions ``changing existing
law''--usually referred to as ``legislation on an appropriation
bill''--except for provisions that retrench expenditures under certain
conditions, and except for rescissions of amounts provided in
appropriation acts reported by the Appropriations Committee. Manual
Sec. 834. The ``retrenchment'' provision is known as the Holman rule,
and is discussed in Sec. 46, infra.
In practice, the concepts ``unauthorized appropriations'' and
``legislation on general appropriation bills'' sometimes have been
applied almost interchangeably as grounds for making points of order
pursuant to Rule XXI
[[Page 76]]
clause 2. This occurs because an appropriation made without prior
authorization has, in a sense, the effect of legislation, particularly
in view of rulings of long standing (Sec. 28, infra) that a
``proposition changing existing law'' may be construed to include the
enactment of a law where none exists. Deschler Ch 26 Sec. 1. The two
concepts are treated separately in this article, however, because they
derive from different paragraphs of clause 2, Rule XXI and constitute
distinct restrictions on the authority of the Committee on
Appropriations.
Enforcement of Rule
As all bills making or authorizing appropriations require
consideration in Committee of the Whole, it follows that the
enforcement of the rule must ordinarily occur during consideration in
Committee of the Whole, where the Chair, on the raising of a point of
order, may rule out any portion of the bill in conflict with the rule.
4 Hinds Sec. 3811; Manual Sec. 835. Because portions of the bill thus
stricken are not reported back to the House, clause 8, Rule XXI was
added in the 104th Congress to empower the Committee of the Whole to
strike offending provisions without Members needing to reserve points
of order in the House. The enforcement of the rule also occurs in the
House, since a motion to recommit a general appropriation bill may not
propose an amendment in violation of the rule. Deschler Ch 26
Sec. 1.4; 101-1, Aug. 1, 1989, p 17159; 101-1, Aug. 3, 1989, p 18546.
It should be stressed, however, that the House may, through various
procedural devices, waive one or both requirements of the rule, and
thereby preclude the raising of such points of order against
provisions in the bill. Sec. 68, infra.
Sec. 8 . Committee Jurisdiction and Functions
Generally
Today, under Rule X clause 1 the House Committee on Appropriations
has jurisdiction over all appropriations, including general
appropriation bills. Manual Sec. 671b. And special Presidential
messages on rescissions and deferrals of budget authority submitted
pursuant to Sec. 1012 and Sec. 1013 of the Impoundment Control Act of
1974, as well as rescission bills as defined in Sec. 1011, are
referred to the Committee on Appropriations if the proposed
rescissions or deferrals involve funds already appropriated or
obligated. Manual Sec. 671b. Impoundments generally, see Budget
Process.
Under the Congressional Budget Act of 1974, the committee was
given jurisdiction over rescissions of appropriations, transfers of
unexpended balances, and the amount of new spending authority to be
effective for a fiscal year. See Rule X clause 1(b). Manual Sec. 671b.
[[Page 77]]
Committee Reports
A report from the Appropriations Committee accompanying any
general appropriation bill must contain a concise statement describing
fully the effect of any provision of the accompanying bill which
directly or indirectly changes the application of existing law. Rule
XXI clause 3. Manual Sec. 844b. Provisions in the bill which are
described in the report as changing existing law are presumed to be
legislation in violation of clause 2(c) of Rule XXI, absent rebuttal
by the committee. 98-2, May 31, 1984, p 14591. The rules further
require that such reports contain a list of appropriations in the bill
for expenditures not previously authorized by law. Rule XXI clause 3,
as amended in 1995.
Sec. 9 . Duration of Appropriation
Annual Appropriations
The most common form of appropriation provides budget authority
for a single fiscal year. All of the 13 regular appropriations bills,
for example, are annual, although certain accounts may ``remain
available until expended.'' Where a bill provides budget authority for
a single fiscal year, the funds have to be obligated during the fiscal
year for which they are provided; they lapse if not obligated by the
end of that year. Indeed, unless an act provides that a particular
fund shall be available beyond the fiscal year, appropriations are
made for one year only and any unused funds automatically go back into
the Treasury at the end of the current fiscal year. Norcross v U.S.,
1958, 142 Ct.Cl. 763.
An appropriation in a regular appropriation law may be construed
to be permanent or available continuously only if the appropriation
expressly provides that it is available after the fiscal year covered
by the law in which it appears, or unless the appropriation is for
certain purposes such as public buildings. 31 USC Sec. 1301.
The fiscal year for the federal government begins on October 1 and
ends on September 30. The fiscal year is designated by the calendar
year in which it ends.
Multi-year Appropriations
A multi-year appropriation is made when budget authority is
provided in an appropriations act that is available for a specified
period of time in excess of one fiscal year.
[[Page 78]]
Permanent Appropriations
A permanent appropriation is budget authority that becomes
available as the result of previously-enacted legislation and which
does not require current action by Congress. Examples include the
appropriations for compensation of Members of Congress (Pub. L. No.
97-51, Sec. 130(c)), and the various trust funds for which the
obligational authority is already provided in basic law.
Appropriations, Budget Estimates, Etc., S. Doc. No. 100-23, pp 2329,
2366.
B. Authorization of Appropriation
Sec. 10 . In General; Necessity of Authorization
Generally
The current House rule prohibits the inclusion in general
appropriation bills of ``unauthorized'' appropriations, except for
``public works and objects'' already under way. Rule XXI clause 2(a).
Manual Sec. 834. Thus, any Member may make a point of order on the
House floor to prevent consideration of an unauthorized appropriation
(Sec. 67, infra), although the House frequently waives the enforcement
of the rule (Sec. 68, infra).
Authorization to Precede Appropriation
The enactment of authorizing legislation must occur prior to, and
not following, the consideration of an appropriation for the proposed
purpose. Thus, delaying the availability of an appropriation pending
enactment of an authorization will not protect that appropriation
against a point of order. Deschler Ch 26 Sec. 7.3. A bill may not
permit a portion of a lump sum--unauthorized at the time the bill is
being considered--to subsequently become available; a further
appropriation upon the enactment of authorizing legislation would be
needed. Deschler Ch 25 Sec. 2. Likewise an appropriation will not be
permitted which is conditioned on a future authorization. Deschler Ch
26 Secs. 7.2, 47.4. But where lump sums are involved, language which
limits use of an appropriation to programs ``authorized by law'' or
which permits expenditures ``within the limits of the amount now or
hereafter authorized to be appropriated,'' has been held to insulate
the bill against the point of order. Deschler Ch 26 Sec. 7.10 (note).
The requirement that the authorization precede the appropriation
is satisfied if the authorizing legislation has been enacted into law
between the time the appropriation bill is reported and the time it is
considered in the Committee of the Whole. Deschler Ch 25 Sec. 2.21.
[[Page 79]]
It should be emphasized that the rule applies to ``general''
appropriation bills. A joint resolution containing continuing
appropriations is not considered a general appropriation bill within
the purview of the rule, despite inclusion of diverse appropriations
which are not ``continuing'' in nature. Deschler Ch 25 Sec. 2.
Sec. 11 . Duration of Authorization
Generally; Renewals
Until recent years, many authorizations were permanent, being
provided for by the organic statute that created the agency or
program. Such statutes often include provisions to the effect that
there are hereby authorized to be appropriated ``hereafter'' such sums
``as may be necessary'' or ``as approved by Congress,'' to implement
the law, thereby requiring the appropriate budget authority to be
enacted each year in accordance with this permanent authorization.
See, for example, Deschler Ch 26 Sec. 11.1.
Today, the House more commonly authorizes appropriations for only
a certain number of years at a time. Authorizations may extend for
two, five, or 10 years, and they may be renewed periodically. The
trend toward periodic authorizations is reflected in the House rule
adopted in 1970 which requires that each standing committee insure
that appropriations for continuing programs and activities will be
made annually ``to the maximum extent feasible,'' consistently with
the nature of the programs involved. And programs for which
appropriations are not made annually may have ``sunset'' provisions
which require that they be reviewed periodically to determine whether
they can be modified to permit annual appropriations. Rule X clause
4(f). Manual Sec. 699a.
Sec. 12 . Sufficiency of Authorization
Generally
The term ``authorized by law'' in Rule XXI clause 2 (Manual
Sec. 834) is ordinarily construed to mean a ``law enacted by the
Congress;'' statutory authority for the appropriation must exist.
Deschler Ch 25 Sec. 2.3. It has been held, for example, that a bill
passed by both Houses but not signed by the President nor returned to
the originating House is insufficient authorization to support an
appropriation. 92-1, May 11, 1971, p 14471. Similarly, an executive
order does not constitute sufficient authorization in the absence of
proof of its derivation from a statute enacted by Congress. Deschler
Ch 26 Sec. 7.7. On the other hand, sufficient ``authorization'' for an
appropriation may be found to exist in a treaty (Deschler Ch 26
Sec. 17.9) that has been rati-
[[Page 80]]
fied by both parties (4 Hinds Sec. 3587), or in legislation contained
in a previous appropriation act which has become permanent law
(Deschler Ch 25 Sec. 2.5).
Authorization From Specific Statutes or General Existing Law
Authorization for a program may be derived from a specific law
providing authority for that particular program or from a more general
existing law--``organic law''--authorizing appropriations for such
programs. Thus, a paragraph in a general appropriation bill
purportedly containing funds not yet specifically authorized by
separate legislation was held not to violate Rule XXI clause 2, where
it was shown that all of the funds in the paragraph were authorized by
more general provisions of law currently applicable to the programs in
question. 95-2, June 8, 1978, p 16778.
Similarly, a permanent law authorizing the President to appoint
certain staff, together with legislative provisions authorizing
additional employment contained in an appropriation bill enacted for
that fiscal year, constituted sufficient authorization for a lump-sum
supplemental appropriation for the White House for the same fiscal
year. Deschler Ch 25 Sec. 2.6. The legislative history of the law in
question may be considered to determine whether sufficient
authorization for the project exists. Deschler Ch 25 Sec. 2.7. The
omission to appropriate during a series of years for a program
previously authorized by law does not repeal the law, and it may be
cited as providing authorization for a subsequent appropriation. 4
Hinds Sec. 3595.
Some statutes expressly provide, however, that there may be
appropriated to carry out the functions of certain agencies only such
sums as Congress may thereafter authorize by law, thus requiring
specific subsequently enacted authorizations for the operations of
such agencies and not permitting appropriations to be authorized by
the ``organic statute'' creating the agency. (See, for example, 15 USC
Sec. 1024(e), establishing the Joint Economic Committee and
authorizing the appropriation of ``such sums as may be necessary
during each fiscal year.'' See Deschler Ch 26 Sec. 49.2 (note)).
Effect of Prior Unauthorized Appropriations
An appropriation for an object unauthorized by law, however
frequently made in former years, does not warrant similar
appropriations in succeeding years (7 Cannon Sec. 1150), unless the
program in question is such as to fall into the category of a
continuation of work-in-progress (Sec. 25, infra), or unless
authorizing legislation in a previous appropriation act has become
permanent law. Manual Sec. 836.
[[Page 81]]
Incidental Expenses; Implied Authorizations
A general grant of authority to an agency or program may be found
sufficiently broad to authorize items or projects that are incidental
to carrying out the purposes of the basic law. Deschler Ch 25
Sec. 2.10. An amendment proposing appropriations for incidental
expenses which contribute to the main purpose of carrying out the
functions of the department for which funds are being provided in the
bill is generally held to be authorized by law. Deschler Ch 26
Sec. 7.15. For example, appropriations for certain travel expenses for
the Secretary of the Department of Agriculture were held authorized by
law as necessary to carry out the basic law setting up that
Department. Deschler Ch 25 Sec. 2.10.
On the other hand, where the authorizing law authorizes a lump-sum
appropriation and confers broad discretion on an executive in
allotting funds, an appropriation for a specific purpose may be ruled
out as inconsistent therewith. Deschler Ch 26 Sec. 15.5 (note). The
appropriation of a lump sum for a general purpose having been
authorized, a specific appropriation for a particular item included in
such general purpose may be a limitation on the discretion of the
executive charged with allotment of the lump sum and not in order on
the appropriation bill. 7 Cannon Sec. 1452. Such a limitation may also
be ruled out on the ground that it is ``legislation'' on an
appropriation bill. Sec. 43, infra. An appropriation to pay a judgment
awarded by a court is in order if such judgment has been properly
certified to Congress. Deschler Ch 25 Sec. 2.2.
Sec. 13 . Proof of Authorization; Burden of Proof
Burden of Proof Generally
Under House practice, those upholding an item of appropriation
have the burden of showing the law authorizing it. 4 Hinds Sec. 3597;
7 Cannon Secs. 1179, 1276. Thus, a point of order having been raised,
the burden of proving the authorization for language carried in an
appropriation bill falls on the proponents and managers of the bill
(Deschler Ch 26 Sec. 9.4), who must shoulder this burden of proof by
citing statutory authority for the appropriation. Deschler Ch 25
Sec. 9.5. The Chair may overrule a point of order upon citation to an
organic statute creating an agency, absent any showing that such law
has been amended or repealed to require specific annual
authorizations. Deschler Ch 26 Sec. 9.6.
Burden of Proof as to Amendment
The burden of proof to show that an appropriation contained in an
amendment is authorized by law is on the proponent of the amendment, a
[[Page 82]]
point of order having been raised against the appropriation. Deschler
Ch 26 Secs. 9.1, 9.2; 102-1, Oct. 29, 1991, p ____. If the amendment
is susceptible to more than one interpretation, it is incumbent upon
the proponent to show that it is not in violation of the rule. Manual
Sec. 835.
Evidence of Compliance With Condition
An authorizing statute may provide that the authorization for a
program is to be effective only upon compliance by executive officials
with certain conditions or requirements. In such a case, a letter
written by an executive officer charged with the duty of furthering a
certain program may be sufficient documentary evidence of
authorization in the manner prescribed. Deschler Ch 26 Secs. 10.2,
10.3.
Sec. 14 . Increasing Budget Authority
Increases Within Authorized Limits
Authorizing legislation may place a ceiling on the amount of
budget authority which can be appropriated for a program or may
authorize the appropriation of ``such sums as are necessary.'' Absent
restrictions imposed by the budget process, it is in order to increase
the appropriation in an appropriation bill for a purpose authorized by
law if such increase does not exceed the amount authorized for that
purpose. Deschler Ch 25 Secs. 2.13, 2.15. An amendment proposing
simply to increase an appropriation for a specific purpose over the
amount carried in the appropriation bill does not constitute a change
in law unless such increase is in excess of that authorized. Deschler
Ch 25 Sec. 2.14. An amendment changing the figure in the bill to the
full amount authorized is in order. Deschler Ch 25 Sec. 2.16. Of
course, if the authorization does not place a cap on the amount to be
appropriated, an amendment increasing the amount of the appropriation
for items included in the bill is in order. Deschler Ch 25 Sec. 11.16.
Increases in Excess of Amount Authorized
An appropriation in excess of the specific amount authorized by
law may be in violation of the rule prohibiting unauthorized
appropriations (Rule XXI clause 2). Deschler Ch 26 Sec. 21. Thus,
where existing law limited annual authorizations of appropriations for
incidental expenses of a program to $7,500, an appropriation for
$10,000 was held to be unauthorized and was ruled out on a point of
order. 94-1, Sept. 30, 1974, p 30981.
[[Page 83]]
The rule that an appropriation bill may not provide budget
authority in excess of the amount specified in the authorizing
legislation has also been applied to:
An amendment proposing an increase in the amount of an
appropriation authorized by law for compensation of Members of
the House. Deschler Ch 26 Sec. 21.2.
A provision in an appropriation bill increasing the loan
authorization for the rural telephone program above the amount
authorized for that purpose. Deschler Ch 26 Sec. 33.3.
Language in an appropriation bill providing funds for the
Joint Committee on Defense Production in excess of the amount
authorized by law. 88-2, Apr. 10, 1964, p 7640.
A paragraph in a general appropriation bill containing funds
in excess of amounts permitted to be committed by a federal
agency for mortgage purchases. 97-2, July 29, 1982, p 18636.
Waiver of Ceiling
Where a limitation on the amount of an appropriation to be
annually available for expenditure by an agency has become law,
language in an appropriation bill seeking to waive or change this
limitation gives rise to a point of order that the language is
legislation on an appropriation bill. Deschler Ch 26 Sec. 33.2.
C. Authorization for Particular Purposes or Programs
Sec. 15 . In General
Absent an appropriate waiver, language in a general appropriation
bill providing funding for a program that is not authorized by law is
in violation of Rule XXI clause 2(a) and may also ``change existing
law'' in violation of clauses 2(b) or 2(c). See 98-2, May 31, 1984, p
14590. Provisions that have been ruled out as unauthorized under Rule
XXI clause 2 have included:
Appropriations for fiscal 1979 for the Department of Justice
and its related agencies. Deschler Ch 26 Sec. 18.3.
An appropriation for expenses incident to the special
instruction and training of United States attorneys and United
States marshals, their assistants and deputies, and United
States commissioners. Deschler Ch 26 Sec. 18.1.
Paragraphs containing funds for a fiscal year for Coast Guard
acquisitions, construction, research, development, and
evaluation. 95-1, June 8, 1977, pp 17945, 17946.
An appropriation for the U.S. Customs Service air interdiction
program. 98-2, June 21, 1984, pp 17693, 17694.
[[Page 84]]
An appropriation for liquidation of contract authority to pay
costs of certain subsidies granted by the Maritime
Administration. 92-1, June 24, 1971, p 21901.
Language permitting the Secretary of Labor and the Secretary
of Health, Education, and Welfare to use funds for official
reception and representation expenses. Deschler Ch 26
Sec. 20.19.
Language making funds available for distribution of
radiological instruments and detection devices to states by
loan or grant for civil defense purposes. Deschler Ch 26
Sec. 20.1.
Language making funds available for reimbursements of
Government employees for use by them of their privately owned
automobiles on official business. Deschler Ch 26 Sec. 20.6.
An appropriation for the American Revolution Bicentennial
Commission. 91-2, May 19, 1970, p 16165.
The rulings cited in this division are intended to illustrate the
application of the rule requiring appropriations to be based on prior
authorization. No attempt has been made to indicate whether measures
similar to those ruled upon, if offered today, would in fact be
authorized under present laws.
Sec. 16 . Agricultural Programs
Held Authorized by Existing Law
An appropriation to be used to increase domestic consumption
of farm commodities. Deschler Ch 26 Sec. 11.1.
Appropriations for cooperative range improvements (including
construction, maintenance, control of rodents, and eradication
of noxious plants in national forests). Deschler Ch 26
Sec. 11.3.
An appropriation to enable the Secretary of Agriculture to
carry out the provisions of the National School Lunch Act of
1946. Deschler Ch 26 Sec. 11.5.
Appropriations for the acquisition and diffusion of
information by the Agriculture Department. 4 Hinds Sec. 3649;
Deschler Ch 26 Sec. 11.10.
Appropriations for agricultural engineering research and for
programs relating to the prevention and control of dust
explosions and fires during the harvesting and storing of
agricultural products. Deschler Ch 26 Sec. 11.11.
An appropriation for the purchase and installation of weather
instruments and the construction or repair of buildings of the
Weather Bureau. Deschler Ch 26 Sec. 11.16.
Ruled Out as Unauthorized
Language providing funds for a celebration of the centennial
of the establishment of the Department of Agriculture. Deschler
Ch 26 Sec. 11.2.
The organization of a new bureau to conduct investigations
relating to agriculture. 4 Hinds Sec. 3651.
Language providing for cooperation by and with state
agriculture investigators. 4 Hinds Sec. 3650; 7 Cannon
Secs. 1301, 1302.
[[Page 85]]
A section providing funds to collect, compile, and analyze
data relating to consumer expenditures and savings. Deschler Ch
26 Sec. 11.7.
An appropriation to permit the Department of Agriculture to
investigate and develop methods for the manufacture and
utilization of starches from cull potatoes and surplus crops.
Deschler Ch 26 Sec. 11.9.
A provision for the refund of certain penalties to wheat
producers. Deschler Ch 26 Sec. 11.6.
An amendment appropriating funds for the immediate acquisition
of domestic meat and poultry to be distributed consistently
with provisions of law relating to distribution of other foods.
93-2, June 21, 1974, p 20620.
An appropriation for the control of certain crop diseases or
infestations. Deschler Ch 26 Secs. 11.12, 11.13.
Sec. 17 . Programs Relating to Business or Commerce
Held Authorized by Existing Law
An appropriation for the Director of the Bureau of the Census
to publish monthly reports on coffee stocks on hand in the
United States. Deschler Ch 26 Sec. 12.1.
An appropriation for the office of the Secretary of Commerce
for expenses of attendance at meetings of organizations
concerned with the work of his office. Deschler Ch 26
Sec. 12.6.
Ruled Out as Unauthorized
An appropriation for sample surveys by the Census Bureau to
estimate the size and characteristics of the nation's labor
force and population. Deschler Ch 26 Sec. 12.2.
Language providing appropriations for necessary expenses in
the performance of activities and services relating to
technological development as an aid to business in the
development of foreign and domestic commerce. Deschler Ch 26
Sec. 12.4.
Language appropriating funds for travel in privately owned
automobiles by employees engaged in the maintenance and
operation of remotely controlled air-navigation facilities.
Deschler Ch 26 Sec. 12.5.
Funds for necessary expenses of the National Bureau of
Standards (including amounts for the standard reference data
program) for fiscal 1979. Deschler Ch 26 Sec. 12.9.
[[Page 86]]
Sec. 18 . Defense Programs
Held Authorized by Existing Law
Funds for paving of streets and erection of warehouses
incident to the establishment of a naval station. 7 Cannon
Sec. 1232.
Appropriations to enable the President, through such
departments or agencies of the government as he might
designate, to carry out the provisions of the Act of Mar. 11,
1941, to promote the defense of the United States. Deschler Ch
26 Sec. 13.3.
Ruled Out as Unauthorized
Funds for transportation of successful candidates to the Naval
Academy. 7 Cannon Sec. 1234.
Funds for establishment of shooting ranges and purchase of
prizes and trophies. 7 Cannon Sec. 1242.
An appropriation for the construction and improvement of
barracks for enlisted men and quarters for noncommissioned
officers of the Army. Deschler Ch 26 Sec. 13.5.
An amendment striking out funds for a nuclear aircraft carrier
program and inserting funds for a conventional-powered aircraft
carrier program. Deschler Ch 26 Sec. 13.6.
A provision increasing the funds appropriated for a fiscal
year for military assistance to South Vietnam and Laos. 93-2,
Apr. 10, 1974, p 10594.
Language including funds for Veterans' Administration expenses
for the issuance of memorial certificates to families of
deceased veterans. Deschler Ch 26 Sec. 13.1.
Sec. 19 . Funding for the District of Columbia
Held Authorized Under Existing Law
An appropriation for opening, widening, or extending streets
and highways in the District of Columbia. 7 Cannon Sec. 1189.
An appropriation for street lights or for improving streets
out of a special fund created by the District of Columbia
Gasoline Tax Act. Deschler Ch 26 Secs. 11.15, 14.7.
An appropriation for expenses of keeping school playgrounds
open during the summer months. Deschler Ch 26 Sec. 14.5.
An appropriation for the preparation of plans and
specifications for a branch library building in the District of
Columbia. Deschler Ch 26 Sec. 14.13.
[[Page 87]]
Ruled Out as Unauthorized
Appropriations for certain federal office buildings in the
District of Columbia that were not approved by the Public Works
Committees of the House and Senate as required by the Public
Buildings Act of 1959. 86-2, Apr. 19, 1960, p 8230.
A paragraph permitting the use of funds by the Office of the
Corporation Counsel to retain professional experts at rates
fixed by the commissioner. Deschler Ch 26 Sec. 14.1.
An appropriation for the preparation of plans and
specifications for a new main library building in the District
of Columbia. Deschler Ch 26 Sec. 14.12.
An appropriation for the salary and expenses of the office of
Director of Vehicles and Traffic out of the District Gasoline
Tax Fund. Deschler Ch 26 Sec. 14.14.
Language permitting the Commissioners of the District of
Columbia to purchase a municipal asphalt plant. Deschler Ch 26
Sec. 14.19.
An amendment making funds available for expenditure by the
American Legion in connection with its national convention.
Deschler Ch 26 Sec. 14.3.
An appropriation to reimburse certain District of Columbia
officials for services and expenses. 7 Cannon Sec. 1184.
Sec. 20 . Interior or Environmental Programs
Held Authorized Under Existing Law
An appropriation for suppression of liquor or peyote traffic
among Indians. 7 Cannon Secs. 1210, 1212.
An appropriation for the examination of mineral resources of
the national domain. 7 Cannon Sec. 1222.
An appropriation for the development of an educational program
of the National Park Service. Deschler Ch 26 Sec. 15.17.
Language providing an appropriation for the purpose of
encouraging industry and self-support among Indians and
outlining areas of discretionary authority to be exercised by
the Secretary of the Interior. Deschler Ch 26 Sec. 15.26.
Appropriations for irrigation projects which had been
recommended by the Secretary of the Interior and approved by
the President. Deschler Ch 26 Sec. 15.30.
Ruled Out as Unauthorized
A paragraph containing funds to enable the EPA to obtain
reports as to the probable adverse effect on the economy of
certain federal environmental actions. Deschler Ch 26
Sec. 15.1.
A paragraph making funds available to the EPA to establish an
independent review board to review the priorities of the
agency. Deschler Ch 26 Sec. 15.2.
[[Page 88]]
Language authorizing the Secretary of the Interior, in
administering the Bureau of Reclamation, to contract for
medical services for employees and to make certain payroll
deductions. Deschler Ch 26 Sec. 15.9.
An appropriation for the Division of Investigations in the
Department of the Interior, to be expended under the direction
of the Secretary, to meet unforeseen emergencies of a
confidential character. Deschler Ch 26 Sec. 15.12.
Language appropriating funds ``out of the general funds of the
Treasury'' (and not the reclamation fund) for investigations of
proposed federal reclamation projects. Deschler Ch 26
Sec. 15.28.
Language requiring that part of an appropriation for general
wildlife conservation be earmarked expressly for the leasing
and management of land for the protection of the Florida Key
deer. Deschler Ch 26 Sec. 15.5.
Appropriations for the National Power Policy Committee to be
used by the committee in the performance of functions
prescribed by the President. Deschler Ch 26 Sec. 15.7.
Sec. 21 . Programs Relating to Foreign Affairs
Held Authorized by Existing Law
An appropriation for transportation and subsistence of
diplomatic and consular officers en route to and from their
posts. 7 Cannon Sec. 1251.
A provision earmarking an amount for a contribution to the
International Secretariat on Middle Level Manpower. Deschler Ch
26 Sec. 17.2.
An appropriation for the obligation assumed by the United
States in accepting membership in the International Labor
Organization. Deschler Ch 26 Sec. 17.3.
An amendment providing funds for a health exhibit at the
Universal and International Exhibition of Brussels. Deschler Ch
26 Sec. 17.6.
An appropriation for commercial attaches to be appointed by
the Secretary of Commerce. 7 Cannon Sec. 1257.
An appropriation to compensate the owners of certain vessels
seized by Ecuador. Deschler Ch 26 Sec. 17.1.
Ruled Out as Unauthorized
An amendment to earmark part of the appropriation for the USIA
to provide facilities for the translation and publication of
books and other printed matter in various foreign languages.
Deschler Ch 26 Sec. 17.7.
Appropriations for incidental and contingent expenses in the
consular and diplomatic service. 4 Hinds Sec. 3609.
An appropriation for the Foreign Service Auxiliary. Deschler
Ch 26 Sec. 17.14.
[[Page 89]]
An appropriation for the salary of a particular U.S. minister
to a foreign country where the Senate had not confirmed the
appointee. Deschler Ch 26 Sec. 17.17.
An amendment providing funds for acquisition of sites and
buildings for embassies in foreign countries. 4 Hinds
Sec. 3606.
Sec. 22 . Legislative Branch Funding
It is not in order to provide in an appropriation bill for
payments to employees of the House unless the House by prior action
has authorized such payments. 4 Hinds Sec. 3654. Such authorization is
generally provided for by resolution from the Committee on House
Oversight (formerly House Administration). The House in appropriating
for an employee may not go beyond the terms of the resolution creating
the office. 4 Hinds Sec. 3659.
A resolution of the House has been held sufficient authorization
for an appropriation for the salary of an employee of the House (4
Hinds Secs. 3656-3658) even though on one occasion the resolution may
have been agreed to only by a preceding House (4 Hinds Sec. 3660). A
resolution intended to justify appropriations beyond the term of a
Congress is ``made permanent law'' by a legislative provision in a
Legislative Branch Appropriation Act.
Held Authorized
Funds for employment of counsel to represent Members and to
appear in court officially. 7 Cannon Sec. 1311.
Funds for expenses incurred in contested election cases when
properly certified. 7 Cannon Sec. 1231.
Salaries for certain House employees. 91-1, Aug. 5, 1969, p
22197.
An increase in the salary of an officer of the House. 89-2,
Sept. 8, 1966, p 22020.
The salary of the Chief of Staff of the Joint Committee on
Internal Revenue Taxation. 92-2, Oct. 4, 1972, p 33744.
Salary adjustments for certain House employees. 92-2, Jan. 27,
1972, p 1531.
Overtime compensation for employees of the Publications
Distribution Service (Folding Room). 92-2, Mar. 2, 1972, p
6627.
Costs of stenographic services and transcripts in connection
with a meeting or hearing of a committee. Manual Sec. 703c. H.
Res. 988, 93d Cong.
Certain costs associated with the organizational meeting of
the Democratic Caucus or Republican Conference. Manual
Sec. 997. 2 USC Sec. 29a.
The transfer of surplus prior-year funds to liquidate certain
current obligations of the House. Deschler Ch 25 Sec. 5.3.
[[Page 90]]
Ruled Out as Unauthorized
An amendment proposing to increase the total amount for
salaries of Members beyond that authorized. Deschler Ch 26
Sec. 21.2.
Language providing an allowance payable to the attending
physician of the Capitol. 86-2, May 17, 1960, p 10447.
An amendment providing funds for a parking lot for the use of
Members and employees of Congress. Deschler Ch 26 Sec. 20.3.
An appropriation for employment by the Committee on
Appropriations of 50 qualified persons to investigate and
report on the progress of certain contracts let by the United
States. Deschler Ch 26 Sec. 20.2.
Sec. 23 . Salaries and Related Benefits
Language in a general appropriation bill providing funding for
salaries that are not authorized by law is in violation of Rule XXI
clause 2(a). 98-2, May 31, 1984, p 14589. Such propositions, whether
to appropriate for salaries not established by law or to increase
salaries fixed by law, are out of order. 4 Hinds Secs. 3664-3667,
3676-3679. The mere appropriation for a salary for one year does not
create an office so as to justify appropriations in succeeding years.
4 Hinds Secs. 3590, 3697. However, it has been held that a point of
order does not lie against a lump-sum appropriation for increased pay
costs as being unauthorized where language in the bill limits use of
the appropriation to pay costs ``authorized by or pursuant to law.''
Deschler Ch 25 Sec. 2.20.
Ruled Out as Unauthorized
Language providing for positions of employment in certain
grades, in addition to the number authorized in existing law.
86-1, May 11, 1959, p 7904.
Language providing funds for the hire of one other person in
excess of the number authorized by law. 87-2, Apr. 2, 1962, p
5932.
A paragraph containing funds for personal services for the
President ``without regard to provisions of law'' regulating
government employment and for entertainment expenses to be
accounted for solely on the certificate of the President. 93-1,
Aug. 1, 1973, pp 27286, 27287.
A paragraph permitting the use of funds by the D.C. Office of
the Corporation Counsel to retain professional experts at rates
fixed by the commissioner. 93-1, June 18, 1973, p 20068.
A paragraph authorizing an executive official to establish
salary levels of certain other officials. 97-2, Sept. 30, 1982,
pp 26290, 26291.
A provision appropriating necessary expenses for a designated
number of officers on the active list of an agency. 98-2, May
31, 1984, p 14590.
An appropriation for salaries and expenses of the Commission
on Civil Rights above the amount authorized by existing law for
that purpose. 92-1, June 24, 1971, p 21902.
[[Page 91]]
An amendment appropriating funds for salaries and expenses of
additional inspectors in the U.S. Customs Service. 98-2, Aug.
1, 1984, pp 21904, 21905.
An amendment providing for a salary of $10,000 per year for
the wife of the President for maintaining the White House.
Deschler Ch 26 Sec. 20.13.
D. Authorization for Public Works
Sec. 24 . In General
Language in a general appropriation bill providing funding for a
public work that is not authorized by law is in violation of Rule XXI
clause 2(a) (Deschler Ch 26 Sec. 19.13), unless the project can be
deemed ``work in progress'' within the meaning of that rule (Sec. 25,
infra). An appropriation for a public work in excess of the amount
fixed by law (4 Hinds Secs. 3583, 3584; 7 Cannon Sec. 1133), or for
extending a public service beyond the limits assigned by an executive
officer exercising a lawful discretion (4 Hinds Sec. 3598), is out of
order.
Held Authorized by Existing Law
An appropriation for necessary advisory services to public and
private agencies with regard to construction and operation of
airports and landing areas. Deschler Ch 26 Sec. 19.4.
An amendment proposing to increase a lump-sum appropriation
for river and harbor projects. Deschler Ch 26 Sec. 19.6.
An appropriation for the Tennessee-Tombigbee inland waterway.
Deschler Ch 26 Sec. 19.9.
An appropriation for construction of transmission lines from
Grand Coulee Dam to Spokane. Deschler Ch 25 Sec. 19.11.
Ruled Out as Unauthorized
Language providing an additional amount for construction of
certain public buildings. Deschler Ch 26 Sec. 19.1.
Appropriations for certain federal office buildings in the
District of Columbia where not approved by the Public Works
Committees of the House and Senate as required by the Public
Buildings Act of 1959. Deschler Ch 26 Sec. 19.2.
An appropriation for construction of a connecting highway
between the United States and Alaska. Deschler Ch 26 Sec. 19.5.
An amendment making part of an appropriation to the Army Corps
of Engineers for flood control available for studying specified
work of the Bureau of Reclamation. Deschler Ch 26 Sec. 19.8.
Language appropriating certain trust funds for expenses
relating to forest roads and trails. Deschler Ch 26 Sec. 28.2.
[[Page 92]]
Sec. 25 . Works in Progress
The House rule which bars appropriations not previously authorized
by law provides for an exception for appropriations for ``public works
and objects'' which are already in progress. Rule XXI clause 2(a).
Manual Sec. 834. Thus, when the construction of a public building has
commenced and there is no limit of cost, further appropriations may be
made under the exception for works in progress. Deschler Ch 26
Sec. 8.1. The exception for works in progress under Rule XXI may apply
even though the original appropriation for the project was
unauthorized. 7 Cannon Sec. 1340; Deschler Ch 26 Sec. 8.2.
Historically, the ``works in progress'' exception has been applied
only to projects funded from the general fund of the Treasury for
which no authorization has been enacted; it does not apply to language
changing existing law by extending the authorized availability of
funds or in contravention of law restricting use of a special fund.
103-1, Sept. 22, 1993, p ____. An appropriation for construction which
is in violation of existing law or which exceeds the limit fixed by
law is not permitted under the work-in-progress exception of Rule XXI.
4 Hinds Secs. 3587, 3702; 7 Cannon Sec. 1332; Manual Sec. 839.
The tendency of later decisions is to narrow the application of
the exception under Rule XXI clause 2(a) making in order
appropriations for ``works in progress.'' 7 Cannon Sec. 1333. The work
in question, to qualify under the rule, must have moved beyond the
planning stage. 7 Cannon Sec. 1336. To come within the terms of the
rule, it must be actually ``in progress,'' according to the usual
significance of those words (4 Hinds Sec. 3706), with actual work
having been initiated (Deschler Ch 26 Sec. 8.5); merely selecting or
purchasing a site for the construction of a building is not sufficient
(4 Hinds Secs. 3762, 3785). But the fact that the work has been
interrupted--even for several years--does not prevent it from
qualifying under the work-in-progress exception of clause 2(a). 4
Hinds Secs. 3707, 3708.
To establish that actual work has begun on the project, the Chair
may require some documentary evidence that work has been initiated.
Deschler Ch 26 Sec. 8.5. To this end, the Chair may consider a letter
from an executive officer charged with the duty of constructing the
project. Deschler Ch 26 Sec. 8.2. News articles merely suggesting that
work may have begun have been regarded as insufficient evidence that
work is in progress within the meaning of the rule. Deschler Ch 26
Sec. 8.7.
Sec. 26 . -- What Constitutes a Work in Progress
The ``works and objects'' referred to in the exception to the rule
prohibiting unauthorized appropriations is construed to mean something
tan-
[[Page 93]]
gible, such as a building or road; the term does not contemplate work
that is indefinite or intangible, such as an investigation. 4 Hinds
Secs. 3714, 3715, 3719. See also Deschler Ch 26 Sec. 8. The term does
not extend to projects that are indefinite as to completion and
intangible in nature, such as the gauging of streams. 4 Hinds
Secs. 3714, 3715. Nor does the term extend to the ordinary duties of
an executive or administrative office. 4 Hinds Secs. 3709, 3713.
Appropriations for extension or repair of an existing road (4
Hinds Secs. 3793, 3798), bridge (4 Hinds Sec. 3803), or public
building have been admitted as in continuation of a work (4 Hinds
Secs. 3777, 3778), although it is not in order as such to provide for
a new building in place of one destroyed (4 Hinds Sec. 3606). The
purchase of adjoining land for a work already established has been
admitted under this principle (4 Hinds Secs. 3766-3773), as well as
additions to or extensions of existing public buildings (4 Hinds
Secs. 3774, 3775). But the purchase of a separate and detached lot of
land is not admitted (4 Hinds Sec. 3776).
Appropriations for new buildings as additional structures at
Government institutions have sometimes been admitted (4 Hinds
Secs. 3741-3750), but propositions to appropriate for new buildings
that were not necessary adjuncts to the institution have been ruled
out (4 Hinds Secs. 3755-3759).
Projects that have qualified as a ``work or object . . . in
progress'' under Rule XXI clause 2(a) have included:
A topographical survey. 7 Cannon Sec. 1382.
The continuation of construction at the Kennedy Library, a
project owned by the United States and funded by a prior year's
appropriation. 100-2, June 14, 1988, p 14335.
A continuation of aircraft experimentation and development.
Jan. 22, 1926, p 2623.
Projects that have been ruled out as a ``work or object . . . in
progress'' under Rule XXI clause 2(a) have included:
New Army hospitals. 4 Hinds Sec. 3740.
A new lighthouse. 4 Hinds Sec. 3728.
An extension of an existing road. 103-1, Sept. 22, 1993, p
____.
[[Page 94]]
III. Legislation in General Appropriation Bills; Provisions Changing
Existing Law
A. Generally
Sec. 27 . The Restrictions of Rule XXI Clause 2
In General; Historical Background
The House rules have contained language forbidding the inclusion
in general appropriation bills of language ``changing existing law''
almost continuously since the 44th Congress. In 1835, when it became
apparent that appropriation bills were being delayed because of the
intrusion of legislative matters, John Quincy Adams suggested the
desirability of a plan that such bills ``be stripped of everything but
the appropriations.'' 4 Hinds Sec. 3578.
Today, House Rule XXI provides that, with two exceptions, ``[n]o
provision changing existing law shall be reported in any general
appropriation bill . . .'' (clause 2(b)), and that ``[n]o amendment to
a general appropriation bill shall be in order if changing existing
law.'' Clause 2(c). The exceptions set forth in clause 2(b) are for
germane provisions which change existing law in a way that would
``retrench'' expenditures (see Sec. 46, infra), and for rescissions of
previously enacted appropriations. Manual Sec. 834.
Language changing existing law in violation of Rule XXI is often
referred to as ``legislation on an appropriation bill.'' Deschler Ch
26 Sec. 1. What ``legislation'' means in this context is a change in
an existing law that governs how appropriations may be used.
Like the rule generally prohibiting unauthorized appropriations,
the restriction against legislating on general appropriations bills is
only enforced if a Member takes the initiative to enforce it by
raising a point of order. Sec. 67, infra. And such a point of order
may be waived pursuant to various procedural devices. See Sec. 68,
infra.
The rule against legislation in appropriation bills is limited to
general appropriation bills; thus, a joint resolution merely
continuing appropriations for government agencies pending enactment of
the regular appropriation bills is not subject to the clause 2 Rule
XXI prohibitions against legislative language. 90-1, Sept. 21, 1967, p
26370.
Construction of Rule
The rule that forbids language in a general appropriation bill
which changes existing law is strictly construed. Deschler Ch 26
Sec. 64.23. The restriction is construed to apply not only to changes
in an existing statute, but also to the enactment of law where none
exists, to language repealing exist-
[[Page 95]]
ing law (Sec. 28, infra), to a provision making changes in court
interpretations of statutory law (96-2, Aug. 19, 1980, p 21978) and to
a proposition to change a rule of the House (4 Hinds Sec. 3819). The
fact that legislative language may have been included in appropriation
acts in prior years and made applicable to funds in those laws does
not permit the inclusion in a general appropriation bill of similar
language. 98-1, Sept. 22, 1983, pp 25403, 25406, 25407.
The Rule XXI restrictions as to changing existing law apply
specifically to amendments to general appropriation bills. See clause
2(a). Manual Sec. 834. It follows that if a motion to recommit with
instructions constitutes legislation on an appropriation bill, the
motion is subject to a point of order. Deschler Ch 26 Sec. 1.4.
Burden of Proof
Where a point of order is raised against a provision in a general
appropriation bill as constituting legislation in violation of Rule
XXI clause 2, the burden of proof is on the Committee on
Appropriations to show that the language is valid under the precedents
and does not change existing law. Deschler Ch 26 Sec. 22.30.
Provisions in the bill, described in the accompanying report as
directly or indirectly changing the application of existing law, are
presumably legislation in violation of Rule XXI clause 2, in the
absence of rebuttal by the committee. Deschler Ch 26 Sec. 22.27.
Similarly, the proponent of an amendment against which a point of
order has been raised and documented as constituting legislation on an
appropriation bill has the burden of proving that the amendment does
not change existing law. Deschler Ch 26 Sec. 22.29.
Sec. 28 . Changing Existing Law by Amendment, Enactment, or Repeal;
Waivers
The provision of the rule (Rule XXI clause 2) forbidding in any
general appropriation bill a ``provision changing existing law'' is
construed to mean:
A change in the text of existing law. Deschler Ch 26
Secs. 23.11, 24.6.
Note: Existing law may be repeated verbatim in an appropriation
bill (4 Hinds Sec. 3414) but the slightest change of the text causes
it to be ruled out (4 Hinds Sec. 3817; 7 Cannon Secs. 1391, 1394).
The enactment of law where none exists.
Note: The provision of the rule forbidding legislation in any
general appropriation bill is construed to mean the enactment of law
where none exists (4 Hinds Secs. 3812, 3813), such as permitting funds
to remain available until expended or beyond the fiscal year covered
by the bill
[[Page 96]]
(93-1, Aug. 1, 1973, pp 27288, 27289), or immediately upon enactment
(100-2, June 28, 1988, p 16254), where existing law permits no such
availability.
The repeal of existing law. 7 Cannon Sec. 1403; Deschler Ch 26
Secs. 24.1, 24.7.
A waiver of a provision of existing law. Deschler Ch 26
Secs. 24.5, 34.14, 34.15.
Note: A waiver may be regarded as legislation on an appropriation
bill where it uses such language as ``notwithstanding the provisions
of any other law'' (Deschler Ch 26 Sec. 26.6) or ``without regard to
[sections of] the Revised Statutes'' (Deschler Ch 26 Sec. 24.8).
Sec. 29 . Imposing Contingencies and Conditions
Generally; Conditions Precedent
Provisions making an appropriation contingent on a future event
are often presented in appropriation bills. Such contingencies may be
phrased as conditions to be complied with, as in ``funds shall be
available when the Secretary has reported,'' or as restrictions on
funding, as in ``No funds until the Secretary has reported.'' Similar
tests are applied in both formulations in determining whether the
language constitutes legislation on an appropriation bill: Is the
contingency germane or does it change existing law? Deschler Ch 26
Sec. 49.2. Does it impose new duties (e.g. to report) where none exist
under law? See Sec. 31, infra.
Precedents in this discussion (Secs. 29-31, infra) could in many
instances be cited under the discussion on ``Limitations'' (Secs. 50-
59, infra). Language imposing a ``negative restriction'' is not a
proper limitation and is indeed ``legislation,'' if it creates new law
and requires positive determinations and actions where none exist in
law. Sec. 56, infra.
The proscription against changing existing law is applicable to
those instances in which the whole appropriation is made contingent
upon an event or circumstance as well as those in which the
disbursement to a particular participant is conditioned on the
occurrence of an event. Deschler Ch 26 Secs. 47, 48. The terms
``unless,'' ``until,'' or ``provided,'' in an amendment or proviso are
clues that the language may contain a condition that is subject
[[Page 97]]
under Rule XXI clause 2(b) or (c) to a point of order. Language that
has been ruled out pursuant to this rule has included:
An amendment providing that funds shall not be available for
any broadcast of information about the U.S. until the radio
script for such broadcast has been approved by the Daughters of
the American Revolution. Deschler Ch 26 Sec. 47.1.
An amendment to require, as a condition to the availability of
funds, the imposition of standards of quality or performance.
Deschler Ch 26 Sec. 59.1.
Language providing that none of the funds should be used
unless certain procurement contracts were awarded on a formally
advertised basis to the lowest responsible bidder. Deschler Ch
26 Sec. 23.14.
An amendment making the money available on certain
contingencies which would change the lawful mode of payment.
Deschler Ch 26 Sec. 48.1.
An amendment denying the obligation or expenditure of certain
funds unless such funds were subject to audit by the
Comptroller General. Deschler Ch 26 Sec. 47.8. (A subsequent
amendment which denied the use of funds not subject to audit
``as provided by law'' was offered and adopted.)
Language making certain funds for an airport available for an
access road (a federal project) provided Virginia makes
available the balance of funds necessary for the construction
of the road. Deschler Ch 26 Sec. 48.7.
Language providing that no part of the appropriation for
certain range improvements shall be expended in any national
forest until contributions at least equal to such expenditures
are made available by local public or private sources. Deschler
Ch 26 Sec. 48.6.
Language stating that no part of the funds shall be used
``unless and until'' approved by the Director of the Bureau of
the Budget. Deschler Ch 26 Sec. 48.3.
A proviso that no funds shall be available for certain
expenditures unless made in accordance with a budget approved
by the Public Housing Commissioner. Deschler Ch 26 Sec. 48.4.
An amendment specifying that no funds made available may be
expended until total governmental tax receipts exceed total
expenditures. Deschler Ch 26 Sec. 48.11.
An amendment containing certification requirements and
mandating certain contractual provisions as a condition to the
receipt of funds. 100-2, May 18, 1988, p 11388.
Sec. 30 . -- Conditions Requiring Reports to, or Action by, Congress
Reporting to Congress as a Condition
It is legislation on a general appropriation bill in violation of
clause 2, Rule XXI to require the submission of reports to a committee
of Congress where existing law does not require that submission. 99-2,
Aug. 1, 1986, p 18647. Thus, an amendment to a general appropriation
bill precluding the
[[Page 98]]
availability of funds therein unless agencies submit reports to the
Committee on Appropriations--reports not required to be made by
existing law--constitutes legislation in violation of that rule. 98-1,
Nov. 2, 1983, p 30496; 99-1, July 25, 1985, pp 20806, 20807.
Congressional Action as Condition
Under the more recent precedents, it is not in order by way of
amendment to make the availability of funds in a general appropriation
bill contingent upon subsequent congressional action. Manual
Sec. 842b. Compare 90-2, June 11, 1968, p 16692; 96-1, Sept. 6, 1979,
pp 23360, 23361. Such a condition changes existing law if its effect
is to require a subsequent authorization which, when enacted, will
automatically make funds available for expenditure without further
appropriations. Such a result is contrary to the process contemplated
in Rule XXI whereby appropriations are dependent on prior
authorization. Deschler Ch 26 Sec. 49.2 (note). Language making the
availability of funds contingent upon the enactment of authorizing
legislation raises a presumption that the appropriation is then
unauthorized. 98-1, Sept. 19, 1983, pp 24640, 24641. Indeed, a
conditional appropriation based on enactment of authorization is a
concession on the face of the language that no prior authorization
exists. Deschler Ch 26 Sec. 47.3 (note).
It is not in order on a general appropriation bill to direct the
activities of a committee (102-2, June 24, 1992, p ____), such as to
require it to promulgate regulations to limit the use of an
appropriation (96-1, June 13, 1979, pp 14670, 14671). And an amendment
to a general appropriation bill including language to direct the
budget scorekeeping for amounts appropriated was held to constitute
legislation and was ruled out of order under clause 2 of Rule XXI.
103-1, May 26, 1993, p ____.
Other conditions relative to congressional action that have been
ruled out as legislation include:
An amendment providing that no part of the funds in the bill
shall be used for the enforcement of any order restricting sale
of any article or commodity unless such order shall have been
approved by a concurrent resolution of the Congress. Deschler
Ch 26 Sec. 49.2.
Language requiring that certain contracts be authorized by the
appropriate legislative committees and in amounts specified by
the Committees on Appropriations of the Senate and House.
Deschler Ch 26 Sec. 49.5.
An amendment making the availability of funds in the bill
contingent upon subsequent enactment of legislation containing
specified findings. 98-1, Nov. 2, 1983, p 30503.
An amendment changing a permanent appropriation in existing
law to restrict its availability until all general
appropriation bills are presented to the President. 100-1, June
29, 1987, p 18082.
[[Page 99]]
Sec. 31 . -- Conditions Imposing Additional Duties
Where a condition in an appropriation bill or amendment thereto
seeks to impose on a federal official substantial duties that are
different from or in addition to those already contemplated in law,
the provision may be ruled out as legislative in nature. Thus, while
it is in order on a general appropriation bill to prohibit the
availability of funds therein for a certain activity, that prohibition
may not be made contingent upon the performance of a new affirmative
duty on the part of a federal official. Deschler Ch 26 Sec. 50. Other
provisions that have been ruled out under this rule have included:
An amendment providing that no part of the money appropriated
shall be paid to any state unless and until the Secretary of
Agriculture is satisfied that such state has complied with
certain conditions. Deschler Ch 26 Sec. 50.2.
Language providing that no part of a certain appropriation
shall be available until it is determined by the Secretary of
the Interior that authorization therefor has been approved by
the Congress. Deschler Ch 26 Sec. 50.3.
An amendment providing that none of the money appropriated
shall be paid to persons in a certain category unless hereafter
appointed or reappointed by the President and confirmed by the
Senate. Deschler Ch 26 Sec. 50.4.
A paragraph prohibiting the use of funds to pay for services
performed abroad under contract ``unless the President shall
have promulgated'' certain security regulations. Deschler Ch 26
Sec. 50.5.
An amendment providing that no part of the appropriation shall
be used for land acquisition for airport access roads until the
FAA shall have held public hearings. Deschler Ch 26 Sec. 50.6.
An amendment rendering an appropriation for energy
conservation services contingent upon recommendations by
federal officials. Deschler Ch 26 Sec. 50.7.
Language making the availability of certain funds contingent
on legal determinations to be made by a federal court and an
executive department. 100-2, June 28, 1988, p 16261.
Sec. 32 . Language Describing, Construing, or Referring to Existing
Law
Generally
It is in order in a general appropriation bill to include language
descriptive of authority provided in law so long as the description is
precise and does not change that authority in any respect. Deschler Ch
26 Sec. 23.1. But language in an appropriation bill construing or
interpreting existing law, although cast in the form of a limitation,
is legislation and not in order. Deschler Ch 26 Sec. 24. Likewise, an
amendment which does not limit or restrict the use or expenditure of
funds in the bill, but which directs the way
[[Page 100]]
in which provisions in the bill must be interpreted or construed, is
legislation. Deschler Ch 26 Sec. 25.15; 100-2, May 17, 1988, p 11305.
The rationale underlying this rule is that a provision proposing to
construe existing law is in itself a proposition of legislation and
therefore not in order. 4 Hinds Secs. 3936-3938; Manual Sec. 842c.
Language in a general appropriation bill which has been ruled out
pursuant to this rule has included:
Language broadening beyond existing law the definition of
services to be funded by an appropriation. Deschler Ch 26
Sec. 25.8.
A provision defining certain expenses as
``nonadministrative,'' for purposes of making a computation.
Deschler Ch 26 Secs. 22.13, 25.4.
A provision making appropriations available for purchase of
station wagons ``without such vehicles being considered as
passenger motor vehicles.'' Deschler Ch 26 Sec. 22.12.
An amendment construing certain language so as to permit the
withholding of funds for specific military construction
projects upon a determination that elimination of such projects
would not adversely affect national defense. Deschler Ch 26
Sec. 25.9.
An amendment providing that nothing in the Act shall restrict
the authority of the Secretary of Education to carry out the
provisions of title VI of the Civil Rights Act of 1964. 96-2,
Aug. 27, 1980, p 23535.
A statement in the bill that a limitation on funds therein is
to be considered a prohibition against payments to certain
parties in administrative proceedings. 100-2, May 17, 1988, p
11305.
A provision directing the Selective Service Administration to
issue regulations to bring its classifications into conformance
with a Supreme Court decision. 101-1, July 20, 1989, p 15405.
An amendment which expresses the sense of Congress that
reductions in appropriations in other bills should reflect the
proportionate reductions made in the pending bill. 101-2, Oct.
21, 1990, p ____.
Incorporation by Reference to Existing Law
An amendment to a general appropriation bill which incorporates by
reference the provisions of an existing law may be subject to a point
of order. 88-1, Oct. 10, 1963, pp 19258-60. Thus, in 1976, a paragraph
in a bill containing funds for the Corporation for Public Broadcasting
to be available ``in accordance with the provisions of titles VI and
VII of the Civil Rights Act of 1964'' was ruled out as legislation in
violation of Rule XXI clause 2, where it could not be shown that the
corporation was already sub-
[[Page 101]]
ject to the provisions of that law. 94-2, June 24, 1976, pp 20414,
20415. Other provisions ruled out for the same reason have included:
Language referring to conditions imposed on certain programs
in other appropriation acts and making those conditions
applicable to the funds being appropriated in the bill under
consideration. Deschler Ch 26 Sec. 22.6.
Language in a general appropriation bill prescribing that the
provisions of a House-passed resolution ``shall be the
permanent law with respect thereto.'' Deschler Ch 26 Sec. 22.7.
Sec. 33 . Particular Propositions as Legislation
The rule (Rule XXI clause 2) that a proposition in a general
appropriation bill may not change existing law has been applied to a
wide variety of proposals. A sampling of these provisions, classified
by subject matter, are set out below.
Provisions Relating to Agriculture
An amendment curtailing the use of funds for price support
payments to certain persons and defining the term ``person'' to
mean an individual, partnership, firm, joint stock company, or
the like. Deschler Ch 26 Sec. 39.10.
An amendment providing that certain loans be exclusively for
the construction and operation of generating facilities for
furnishing electric energy to persons in certain rural areas.
Deschler Ch 26 Sec. 39.5.
A proviso that certain land banks shall be examined once a
year instead of at least twice as provided by law, and changing
the law with reference to salaries of employees engaged in such
examinations. Deschler Ch 26 Sec. 39.9.
Provisions Relating to Commerce
A paragraph carrying an appropriation for all expenses of the
Bureau of the Census necessary to collect, compile, analyze,
and publish a sample census of business. Deschler Ch 26
Sec. 40.5.
Language providing that functions necessary to the compilation
of foreign trade statistics be performed in New York instead of
Washington, D.C. Deschler Ch 26 Sec. 40.4.
[[Page 102]]
Provisions Relating to Foreign Affairs
A paragraph expressing the sense of the Congress concerning
the representation of the Chinese government in the United
Nations. Deschler Ch 26 Sec. 41.4.
An amendment providing that ``a reasonable amount'' of the
funds provided to the Organization of American States may be
available for distribution in certain underdeveloped areas in
the United States. Deschler Ch 26 Sec. 41.9.
An amendment stating the sense of Congress that any new Panama
Canal treaty must not abrogate or vitiate the ``traditional
interpretation'' of past Panama Canal treaties, with special
reference to territorial sovereignty. Deschler Ch 26
Sec. 41.10.
Provisions Relating to Federal Employment
A provision changing the compensation received by government
employees under the law. 4 Hinds Secs. 3871, 3881.
A proposition to increase the number of employees fixed by
law. 7 Cannon Sec. 1456; Deschler Ch 26 Sec. 43.13.
Language authorizing a change in the manner of appointment of
clerks. 4 Hinds Sec. 3880.
A provision permitting an executive official to delegate to an
administratie officer the authority to make appointments of
certain personnel. Deschler Ch 26 Sec. 45.5.
Language authorizing the Secretary of Defense to adjust the
wages of certain civilian employees. 100-2, June 21, 1988, p
15450.
A provision making it a felony for a member of an organization
of government employees that asserts the right to strike
against the government to accept salary or wages paid from
funds contained in the pending bill. Deschler Ch 26 Sec. 43.2.
Language providing that the Secretary of State may, in his
discretion, terminate the employment of an employee whenever he
shall deem such termination necessary or advisable in the
interests of the United States. Deschler Ch 26 Sec. 43.4.
Language exempting persons appointed to part-time employment
as members of a civil service loyalty board from application of
certain statutes. Deschler Ch 26 Sec. 43.15.
Provisions Relating to Congressional Employment and Compensation
Provisions increasing or providing additional salary to
Members of Congress. Deschler Ch 26 Sec. 44.1, 44.2.
Language increasing the Members' telegraph, stationery, and
telephone allowances. Deschler Ch 26 Sec. 44.7.
An amendment requiring a committee to promulgate rules to
limit the amount of official mail sent by Members. Deschler Ch
26 Sec. 44.10.
An amendment providing that the clerk-hire roll of each Member
be increased by one employee. Deschler Ch 26 Sec. 44.3.
[[Page 103]]
An amendment proposing that each Member may pay to a clerk-
hire employee $8,000 in lieu of $6,000 as basic compensation.
Deschler Ch 26 Sec. 44.5.
An amendment changing the procedure for the employment of
committee staff personnel. Deschler Ch 26 Sec. 44.9.
Provisions Relating to Housing and Public Works Programs
A provision restricting the contract authority of the Housing
and Home Finance Administrator to an amount ``within the limits
of appropriations made available therefor.'' Deschler Ch 26
Sec. 45.3.
Language prohibiting occupancy of certain housing by persons
belonging to organizations designated as subversive and
requiring such prohibition to be enforced by local housing
authorities. Deschler Ch 26 Sec. 45.1.
An appropriation for the construction of buildings for storage
of certain equipment and including a stated limit of cost for
construction of any such building. Deschler Ch 26 Sec. 45.7.
A proposition to create ``necessary and special facilities''
for transporting the mails on railroads. 4 Hinds Sec. 3804.
B. Changing Prescribed Funding
Sec. 34 . In General
Generally; Mandating Expenditures
Language in a general appropriation bill is permitted where it is
drafted simply as a negative restriction or limitation on the use of
funds. Sec. 50, infra. Such limitations may negatively affect the
allocation of funds as contemplated in existing law, but may not
explicitly change statutory directions for distribution. Deschler Ch
26 Sec. 77.2. It is in violation of clause 2 of Rule XXI to include
language in a general appropriation bill directing that funds therein
be obligated or distributed in a manner that is contrary to existing
law. 97-2, July 29, 1982, p 18637; 98-1, Oct. 5, 1983, p 27335.
Language directing that funds in the bill shall be distributed
``without regard to the provisions'' of the authorizing legislation is
subject to a point of order. Deschler Ch 26 Sec. 36.1.
While the Appropriations Committee may report a limitation on the
availability of funds within the reported bill, a limitation on the
obligation of funds, or a removal of an existing statutory limitation
on the obligation of funds contained in existing law, is legislation
and in violation of clause 2 of Rule XXI. 103-1, Sept. 23, 1993, p
____.
If existing law places a limit or cap on the total amount that may
be spent on a program, language in a general appropriation bill may
not direct an increase in that amount. 4 Hinds Secs. 3865-3867.
Similarly, a provision
[[Page 104]]
making available indefinite sums for a particular program may be ruled
out as legislation in violation of Rule XXI clause 2 where existing
law provides that a definite amount must be specified for that purpose
in annual appropriation bills. Deschler Ch 26 Sec. 33.1. Where
mandatory funding levels have been earmarked for certain programs by
existing law, a provision in a general appropriation bill rendering
them ineffective may be ruled out as in violation of clause 2 of Rule
XXI. Deschler Ch 26 Sec. 36.5. In 1982, a paragraph in a general
appropriation bill directing that ``not less'' than a specified sum be
available for a certain purpose was ruled out as legislation
constituting a direction to spend a minimum amount and not a negative
limitation. 97-2, July 29, 1982, p 18623. An amendment to a general
appropriation bill denying funds therein for a program at less than a
certain amount constitutes legislation where existing law confers upon
a federal official discretionary authority to determine minimum levels
of expenditures. 95-2, July 20, 1978, p 21856. Language mandating a
certain allotment of funds at ``the maximum amounts authorized'' has
also been ruled out as legislation on an appropriation bill. Deschler
Ch 26 Sec. 36.2.
Language in a general appropriation bill may not authorize the
adjustment of wages of government employees (101-1, Apr. 26, 1989, p
7525) or permit an increase in Members' office allowances only ``if
requested in writing'' (101-2, Oct. 21, 1990, p ____). Nor may it
mandate reductions in various appropriations by a variable percentage
calculated in relation to ``overhead.'' 102-2, June 24, 1992, p ____.
Change in Source or Method of Funding
Where existing law authorizes appropriations out of a special fund
for a particular purpose, it is not in order in an appropriation bill
to direct that the money be taken from the general funds of the
Treasury for that purpose. Deschler Ch 26 Secs. 35.1, 35.2. Thus,
language in a bill providing funds for an agricultural project, for
which funding had been authorized from the receipts of timber sales
and not from appropriated funds, was ruled out as legislation in
violation of Rule XXI clause 2. Deschler Ch 26 Sec. 35.3. The language
in an appropriation bill appropriating funds in the Federal Aid
Highway Trust Fund for expenses of forest roads and trails was held to
be legislation and not in order where no authorization existed for the
expenditure from the Highway Trust Fund for those proposed purposes.
86-2, Feb. 9, 1960, p 2348.
Language in a general appropriation bill that substitutes
borrowing authority in lieu of a direct appropriation is subject to a
point of order if contrary to existing law. Deschler Ch 26 Sec. 35.4.
[[Page 105]]
Changing Allotment Formulas; Setting Priorities
A provision in a general appropriation bill which changes the
legislative formula governing the allotment of funds to recipients is
legislation on an appropriation bill in violation of Rule XXI clause
2. Deschler Ch 26 Sec. 36.10; 101-1, Aug. 2, 1989, p 18123; Manual
Sec. 842e. It is not in order in a general appropriation bill to
establish priorities to be followed in the obligation or expenditure
of the funds where such priorities are not found in existing law.
Thus, a proviso specifying that an appropriation for veterans' job
training be obligated on the basis of those veterans unemployed the
longest time was conceded to be legislation where existing law did not
require that allocation of funds, and was ruled out as in violation of
Rule XXI clause 2. Deschler Ch 26 Sec. 36.17.
Where existing law establishes priorities to be followed by an
executive official in the distribution of funds, an amendment to an
appropriation bill requiring that those funds be distributed in
accordance with such priorities may under some circumstances be
regarded as constituting a stronger mandate as to the use of those
funds and ruled out as a modification of the authorizing law, and
therefore out of order. Deschler Ch 26 Sec. 23.8.
Sec. 35 . Affecting Funds in Other Acts
Generally
Language in a general appropriation bill which is applicable to
funds appropriated in another act may constitute legislation under
Rule XXI clause 2. 86-1, June 29, 1959, p 12132. Thus, an amendment to
an appropriation bill seeking to change a limitation on a previous
appropriation bill may be held to be legislation and not in order.
Deschler Ch 26 Sec. 27.26.
Rescissions
Although under clause 2(b) of Rule XXI the Committee on
Appropriations may report in a general appropriation bill
``rescissions of appropriations contained in appropriation Acts,''
under clause 2(c) of Rule XXI an amendment to a general appropriation
bill may not change existing law, as by rescinding an appropriation
contained in another Act.
Sec. 36 . Transfer of Funds-- Within Same Bill
Transfers of appropriations within the confines of the same bill
are normally considered in order on a general appropriation bill if
not containing legislative language. Deschler Ch 26 Sec. 29; 86-1,
Mar. 24, 1959, p 5102. Thus, a general provision in an appropriation
bill permitting transfers of sums appropriated therein from one
subhead to another in that enactment
[[Page 106]]
was held not to constitute legislation. Deschler Ch 26 Sec. 29.5.
Likewise, a provision in an appropriation bill may permit certain
funds to be available ``interchangeably'' for expenditure for various
authorized purposes. Deschler Ch 26 Sec. 29.8. And an amendment
providing that a particular authorized project should be financed out
of ``any available unallocated funds contained in this act'' was held
to be in order. Deschler Ch 26 Sec. 29.10. Such a provision may not
include legislative language, however; in one instance, for example,
language in a general appropriation bill authorizing the Secretary of
Labor to allot or transfer, with the approval of the Director of the
Budget, funds in the bill to an office within the Labor Department,
was held to be legislation because it imposed additional duties on the
Director of the Budget. Deschler Ch 26 Sec. 29.1.
Language in a bill containing funds for an agency for certain
activities and permitting transfers of those funds to other
departments to carry out those activities (where existing law
authorized appropriations only to the agency) has been ruled out in
violation of Rule XXI clause 2. Deschler Ch 26 Sec. 30.22. And a
paragraph in a bill providing for transfers from the appropriation
therein to ``any department or agency'' was ruled out in violation of
Rule XXI clause 2 as constituting legislation on an appropriation
bill. Deschler Ch 26 Sec. 30.23.
Sec. 37 . -- Transfer of Previously Appropriated Funds
Language in an appropriation bill which is applicable to funds
appropriated in another act constitutes legislation in violation of
Rule XXI clause 2(b) (Deschler Ch 26 Sec. 30.10), and may also
constitute a reappropriation of unexpended balances in violation of
clause 6 (Deschler Ch 26 Sec. 30.20). Reappropriations generally, see
Sec. 60, infra. Thus, an amendment to an appropriation bill proposing
the transfer of funds previously appropriated in another appropriation
bill is legislation. Deschler Ch 26 Sec. 30.1. A point of order will
lie against language that attempts to transfer such funds from one
department to another. Deschler Ch 26 Secs. 30.16, 30.25.
Sec. 38 . Making Funds Available Prior to, or Beyond, Authorized
Period
Generally; Availability of Balances
It is provided by statute that the balance of an appropriation
limited for obligation to a definite period is available only for
payment of expenses properly incurred during the period of
availability or to complete contracts properly made within that period
of availability. 31 USC Sec. 1502. And it is not in order in a general
appropriation bill to provide that funds therein are
[[Page 107]]
to be available beyond the fiscal year covered by the bill unless the
authorizing law permits that availability. Deschler Ch 26 Secs. 32.1,
32.10. Such language is held to ``change existing law'' in violation
of Rule XXI clause 2 because it extends the use of the funds beyond
the period permitted by law. Deschler Ch 26 Sec. 32.11.
By statute, an appropriation in a regular, annual appropriation
law may be construed to be permanent or available continuously only if
the appropriation expressly provides that it is available after the
fiscal year covered by the law, or unless the appropriation is for
certain purposes, such as public buildings. 31 USC Sec. 1301. Amounts
appropriated to construct public buildings remain available until
completion of the work. When a building is completed and outstanding
liabilities for the construction are paid, balances remaining revert
immediately to the Treasury. 31 USC Sec. 1307.
Provisions in appropriation bills that have been ruled out under
Rule XXI clause 2 on a point of order have included:
Language providing funds to collect and publish certain
statistics on voting, to be available until the end of the next
fiscal year. Deschler Ch 26 Sec. 32.6.
Language making fees and royalties collected pursuant to law
available beyond the current fiscal year. Deschler Ch 26
Sec. 32.9.
Language making an appropriation for a census available beyond
the time for which it was originally authorized. Deschler Ch 26
Sec. 22.2.
Language making appropriations for the Migratory Bird
Conservation Fund for the current year ``and each fiscal year
thereafter'' from the sale of stamps. Deschler Ch 26 Sec. 32.8.
Language providing for funds for the Tennessee Valley
Authority to be available for the payment of obligations
chargeable against prior appropriations. Deschler Ch 26
Sec. 32.16.
Funds ``To Be Immediately Available''
Language in an appropriation bill that the funds shall be
immediately available--that is, prior to the start of the fiscal year
covered by the bill--is subject to a point of order. A prior ruling
permitting immediate availability, that is, prior to the start of the
fiscal year covered by the bill (7 Cannon Secs. 1119, 1120) has been
superseded by more recent rulings proscribing such immediate
availability. 99-2, July 29, 1986, p ____; 100-2, June 28, 1988, p
____. Making funds available in an earlier fiscal period may also have
Budget Act implications. Under the Budget Act, a measure containing a
new entitlement is subject to a point of order (see Sec. 401(b)(1))
unless the entitlement (as defined by the Act) is to take effect after
the start of the appropriate fiscal year. See, for example, 99-2, June
26, 1986, p 15729. See Budget Process.
[[Page 108]]
Sec. 39 . Funds ``To Remain Available Until Expended''
Generally
Authorization bills sometimes provide that appropriated funds are
``to remain available until expended.'' Such language is permitted
where existing law authorizes the inclusion of language extending the
availability of funds for the purpose stated in that law. 99-1, June
11, 1985, p 15174. Conversely, where the authorizing statute does not
permit funds to remain available until expended or without regard to
fiscal year limitation, the inclusion of such availability in a
general appropriation bill has been held to constitute legislation in
violation of clause 2 Rule XXI. Deschler Ch 26 Secs. 32.1, 32.2,
32.10. 99-1, June 6, 1985, p 14610. However, language that certain
funds be ``available until expended'' may be included where other
existing law can be interpreted to permit that availability. Thus, a
provision in a general appropriation bill that funds therein for the
construction of the west front of the U.S. Capitol shall ``remain
available until expended'' was held not to constitute legislation in
violation of Rule XXI clause 2 where an existing law (31 USC
Sec. 1307) provided that funds for public building construction shall
remain available until the completion of the work. Deschler Ch 26
Sec. 32.1.
Authority of Appropriations Committee to Confine Expenditure to
Current Fiscal Year
While authorizing legislation sometimes provides that funds
authorized therein shall ``remain available until expended,'' the
Committee on Appropriations has never been required, when
appropriating for those purposes, to specify that such funds must
remain available until expended. Indeed, the Appropriations Committee
often confines the availability of funds to the current fiscal year,
regardless of the limit of availability contained in the
authorization, and it may do so absent a clear showing that the
language in question was intended to require appropriations to be made
available until expended. Deschler Ch 26 Sec. 32.21.
Sec. 40 . Reimbursements of Appropriated Funds
If not authorized by existing law, language in a general
appropriation bill providing for the use of funds generated from
reimbursement, repayment, or refund, rather than from a direct
appropriation, may be ruled out as legislation under Rule XXI clause
2. Deschler Ch 26 Secs. 38.1 et seq. Pro-
[[Page 109]]
visions in appropriation bills ruled out under this rule have included
requirements:
That ``all refunds, repayments, or other credits on account of
funds disbursed under this head shall be credited to the
appropriation.'' Deschler Ch 26 Sec. 38.1.
That appropriations contained in the Act may be reimbursed
from the proceeds of sales of certain material and supplies.
Deschler Ch 26 Sec. 38.2.
That any part of the appropriation for salaries and expenses
be reimbursed from commissary earnings. Deschler Ch 26
Sec. 38.4.
That repayment of federal appropriations for a certain airport
be made from income derived from operations. Deschler Ch 26
Sec. 38.10.
That money received by the United States in connection with
any irrigation project constructed by the federal government
shall be covered into the general fund until such fund has been
reimbursed. Deschler Ch 26 Sec. 38.11.
That receipts from nonfederal agencies representing
reimbursement for travel expenses of certain employees
performing advisory functions to such agencies be deposited in
the Treasury to the credit of the appropriation. Deschler Ch 26
Sec. 38.13.
That certain advances be reimbursable during a fixed period
under rules and regulations prescribed by an executive officer.
Deschler Ch 26 Sec. 38.14.
C. Changing Executive Duties or Authority
Sec. 41 . In General; Requiring Duties or Determinations
Generally
Where an amendment to or language in a general appropriation bill
explicitly places new duties on officers of the government or
implicitly requires them to make investigations, compile evidence, or
make judgments and determinations not otherwise required of them by
law, then it assumes the character of legislation under Rule XXI
clause 2 and is subject to a point of order. 4 Hinds Secs. 3854-3859;
Deschler Ch 26 Sec. 52; 91-1, July 31, 1969, pp 21653, 21675; Manual
Sec. 842d. The extra duties which may invalidate an amendment as being
``legislation'' are duties not now required by law. The fact that they
may be presently in effect on a voluntary basis does not protect an
amendment from a point of order under clause 2 Rule XXI. Deschler Ch
26 Sec. 63.7 (note). The point of order will lie against language
requiring new determinations by federal officials whether or not state
officials administering the federal funds in question routinely make
such determinations. Deschler Ch 26 Sec. 52.33. Thus, in a general
appropriation bill, if
[[Page 110]]
not already mandated by existing law, an executive official may not be
required:
To make substantial findings in determining the extent of
availability of funds. 97-2, Dec. 9, 1982, pp 29690, 29691.
To make evaluations of propriety and effectiveness. 97-1, Oct.
6, 1981, p 23361; 100-2, May 25, 1988, pp 12270-72.
To include information in the annual budget on transfers of
appropriations. Deschler Ch 26 Sec. 52.10.
To make determinations, in implementing a personnel reduction
program, as to which individual employees shall be retained.
Deschler Ch 26 Sec. 22.17.
To implement certain conditions and formulas in determining
amounts to be charged as rent for public housing units.
Deschler Ch 26 Sec. 52.20.
Approval or Certification Duties
Where existing law authorizes the availability of funds for
certain expenses when certified by an executive official, language in
a general appropriation bill containing funds for that purpose to be
accounted for solely upon his certificate may be held in order as not
constituting a change in existing law. 93-2, June 18, 1974, pp 19715,
19716. And appropriations for traveling expenses at meetings
``considered necessary'' in the exercise of the agency's discretion
for the efficient discharge of its responsibilities were held
authorized by a law permitting inclusion of such language in the bill.
Deschler Ch 26 Sec. 52.28. But language in a general appropriation
bill authorizing the expenditure of funds on the approval of an
executive official and on his ``certificate of necessity for
confidential military purposes'' was held to change existing law and
was ruled out in violation of Rule XXI clause 2 when the Committee on
Appropriations failed to cite statutory authority for that method of
payment. Deschler Ch 26 Sec. 22.19. Even a proviso that certain
vouchers ``shall be sufficient'' for expenditure from the
appropriation has been ruled out as legislation in violation of Rule
XXI clause 2. Deschler Ch 26 Sec. 22.20.
Duty to Submit Reports
It is not in order on a general appropriation bill to require an
executive official to submit reports not required by existing law. 7
Cannon Sec. 1442; 93-2, Apr. 30, 1974, p 12419. In 1986, a provision
requiring the Customs Service to submit a monthly report to a House
committee detailing the number of district positions authorized and
the number of positions vacant was conceded to require new
determinations not required by law and ruled out as legislation. 99-2,
Aug. 1, 1986, p 18647. And in one instance, where existing law
required submission of certain agency reports on a quarterly basis,
[[Page 111]]
language making the availability of funds therein contingent upon the
prior submission of that report was held to change the reporting
requirement established pursuant to law and to constitute legislation
in violation of clause 2 of Rule XXI. 96-2, July 23, 1980, pp 19303,
19304.
Sec. 42 . Burden of Proof
Generally
The burden of proof is on the proponent of an amendment to a
general appropriation bill to show that a proposed executive duty or
determination is required by existing law, and the mere recitation
that it is imposed pursuant to existing law and regulations, absent a
citation to the law imposing that responsibility, is not sufficient to
overcome a point of order that the amendment constitutes legislation.
Deschler Ch 26 Sec. 22.25.
Determinations Incidental to Other Executive Duties
If a proposed executive determination is not specifically required
by existing law, but is related to other executive duties, then the
proponent has the burden of proving that it is merely incidental
thereto. Thus, language in a general appropriation bill in the form of
a conditional limitation requiring determinations by federal officials
may be held to change existing law in violation of clause 2 Rule XXI,
unless the Committee on Appropriations can show that the new duties
are merely incidental to functions already required by law and do not
involve substantive new determinations. 99-1, July 26, 1985, p 20808.
Sec. 43 . Altering Executive Authority or Discretion
Generally
A proposition in a general appropriation bill that interferes with
authority that has been conferred by law on an executive official
``changes existing law'' under Rule XXI clause 2. 4 Hinds Sec. 3846;
Deschler Ch 26 Sec. 51.3. A proposition that significantly alters the
discretion conferred on the official also ``changes existing law''
within the meaning of that rule. 4 Hinds Secs. 3848-3852; 7 Cannon
Sec. 1437; Manual Sec. 842d. Thus, where existing law authorized the
expenditure of funds for a program under broad supervisory powers
given to an executive official, provisions in an appropriation bill
which impose conditions affecting both the exercise of those powers
and the use of funds may be ruled out as legislation. Deschler Ch 26
Sec. 51.4.
A provision in a general appropriation bill requiring the
performance of a duty by a federal official which, under existing law
he may at his discretion perform, constitutes legislation in violation
of Rule XXI clause 2. 95-
[[Page 112]]
2, Aug. 8, 1978, p 24960. And while it is in order on a general
appropriation bill to limit the availability of funds therein for part
of an authorized purpose (Sec. 52, infra), language which restricts
not the funds but the discretionary authority of a federal official
administering those funds may be ruled out as legislation. 93-2, June
21, 1974, p 20600.
Language in a general appropriation bill conferring discretionary
authority on an executive official where none exists under existing
law is subject to a point of order under Rule XXI clause 2. Deschler
Ch 26 Sec. 55.1. A proposition having the purpose of enlarging, rather
than restricting, an official's discretion, may also be viewed as
changing existing law. Deschler Ch 26 Sec. 51. In 1951, language
granting discretionary authority to the Secretary of the Army to use
funds for purposes ``desirable'' in expediting military production was
held to be legislation and not in order. Deschler Ch 26 Sec. 59.7.
Earmarking Funds as Affecting Executive Discretion
The earmarking of funds for a particular item from a lump-sum
appropriation may constitute a limitation on the discretion of the
executive charged with allotment of the lump sum and thus be subject
to a point of order under Rule XXI clause 2. 7 Cannon Sec. 1452.
Deschler Ch 26 Sec. 51.5. See also 101-1, July 12, 1989, p 14432. In
1955, language earmarking some of the appropriations for the Veterans'
Administration for a special study of its compensation and pension
programs was conceded to be legislation and held not in order.
Deschler Ch 26 Sec. 55.12.
Sec. 44 . Mandating Studies or Investigations
Language in a general appropriation bill describing an
investigation which may be undertaken with funds in the bill at the
discretion of an official upon whom existing law imposes a general
investigative responsibility does not constitute legislation and is
not in violation of Rule XXI clause 2. 93-2, Apr. 9, 1974, pp 10208,
10209. But where existing law gives an agency discretion to undertake
an investigation, language in a general appropriation bill that
requires the agency to make the investigation is legislation and
subject to a point of order. Deschler Ch 26 Sec. 51.7. And although an
executive official may have broad investigative responsibilities under
existing law, it may not be in order in a general appropriation bill
to impose a duty on him to undertake a specific additional study. 93-
2, Apr. 9, 1974, pp 10205, 10206.
The mere requirement in a general appropriation bill that an
executive officer be the recipient of information is not considered as
imposing upon him any additional burdens and is in order. 90-2, June
11, 1968, p 16712. Language has been upheld where it conditioned the
availability of funds on
[[Page 113]]
certain information being ``made known'' to an executive official. 7
Cannon Sec. 1695. But language imposing new responsibilities on
federal officials beyond merely being the recipients of information
may constitute legislation in violation of Rule XXI clause 2. 95-1,
June 17, 1977, pp 19699, 19700. Thus, in 1974, language in a general
appropriation bill was ruled out as legislation when the Committee on
Appropriations conceded that agencies funded by the bill would be
required to examine extraneous documentary evidence--including hearing
transcripts--in addition to the language of the law itself, to
determine the purposes for which the funds had been appropriated. 93-
2, June 21, 1974, pp 20612, 20613.
Sec. 45 . Granting or Changing Contract Authority
Granting Authority
Language in a general appropriation bill authorizing a
governmental agency to enter into contracts is legislation in
violation of Rule XXI clause 2 if such authority is not provided for
in existing law. 4 Hinds Secs. 3868-3870; Deschler Ch 26 Sec. 37.4.
Although under existing law it may be in order to appropriate money
for a certain purpose, it may not be in order in a general
appropriation bill to grant authority to incur obligations and enter
into contracts in furtherance of that purpose. Deschler Ch 26
Secs. 37.3, 37.4. Thus, language authorizing the Secretary of the
Interior to enter into contracts for the acquisition of land and
making future appropriations available to liquidate those obligations
was held legislation on an appropriation bill and not in order.
Deschler Ch 26 Sec. 37.8.
Waiving Contract Law
Language in a general appropriation bill which waives the
requirements of existing law as to when certain contracts may be
entered into may be ruled out as legislation in violation of Rule XXI
clause 2. Deschler Ch 26 Sec. 37.14. Thus, language providing that
contracts for supplies or services may be made by an agency without
regard to laws relating to advertising or competitive bidding was
conceded to be legislation on an appropriation bill and held not in
order. Deschler Ch 26 Sec. 34.1.
Restricting Contract Authority
A provision in a general appropriation bill changing existing law
by restricting the contract authority of an executive official may be
ruled out on a point of order as legislation under Rule XXI clause 2.
Deschler Ch 26 Sec. 45.3. In one instance, an amendment requiring the
Civil Aeronautics Authority to award contracts to the highest bidder
only after previously adver-
[[Page 114]]
tising for sealed bids was ruled out as legislation. Deschler Ch 26
Sec. 46.3. In 1950, language authorizing an agency to enter into
contracts for certain purposes in an amount not to exceed $7 million
was conceded to be legislation on an appropriation bill and was ruled
out absent citation to an existing law authorizing inclusion of such
limitation. Deschler Ch 26 Sec. 37.12. Language in an appropriation
bill seeking to reduce or rescind contract authority contained in a
previous appropriation bill has also been ruled out as legislation
changing existing law. Deschler Ch 26 Secs. 22.14, 24.4. This is so
notwithstanding the adoption in 1974 of a rules change which gave the
Appropriations Committee jurisdiction over rescissions of
appropriations (as distinguished from rescission of contract
authority). Deschler Ch 26 Sec. 24.4 (note).
The rulings in this section should be considered in the light of
Sec. 401(a) of the Congressional Budget Act of 1974, which precludes
consideration of measures reported by legislative committees providing
new spending authority unless the measure also provides that such
authority is to be effective ``only to such extent and in such amounts
as are provided in appropriation Acts.'' Since the adoption of this
law, language properly limiting the contractual authority of an
agency, if specifically permitted by law, would not render that
language subject to a point of order under Rule XXI clause 2. Deschler
Ch 26 Sec. 37.
D. The Holman Rule; Retrenchments
Sec. 46 . In General; Retrenchment of Expenditures
Generally
The House rule that precludes the use of language changing
existing law in a general appropriation bill makes an exception for
``germane provisions which retrench expenditures by the reduction of
amounts of money covered by the bill'' as reported. Rule XXI clause
2(b). This exception is referred to as the Holman rule, having been
named for the Member who first suggested it in 1876, William Holman of
Indiana. Manual Sec. 834.
Decisions under the Holman rule have been rare in the modern
practice of the House. Manual Sec. 844a. The rule applies to general
appropriation bills only (7 Cannon Sec. 1482), and is not applicable
to funds other than those appropriated in the pending bill (7 Cannon
Sec. 1525). And in 1983, the House narrowed the Holman rule exception
to apply only to retrenchments reducing the dollar amounts of money
covered by the bill. Manual Sec. 844a.
[[Page 115]]
Retrenchments and Limitations Distinguished
A distinction should be noted between retrenchments offered under
the criteria of the Holman rule and ``limitations'' on appropriation
bills, discussed elsewhere in this article (Secs. 50-59, infra). Under
the Holman rule, a provision that is admittedly ``legislative'' in
nature is nevertheless held to fall outside the general prohibition
against such provisions, because it reduces the funds in the bill. The
limitations discussed in later sections are not ``legislation'' and
are permitted on the theory that Congress is not bound to appropriate
funds for every authorized purpose. Deschler Ch 26 Sec. 4.
Under the modern practice, the ``Holman Rule'' does not apply to
limiting language that does not involve a reduction of dollar amounts
in the bill. See Manual Sec. 844a. An amendment which does not show a
reduction on its face and which is merely speculative is not in order
under the rule. 102-2, June 24, 1992, p ____.
The words ``amounts of money covered by the bill'' in the rule
refer to the amounts specifically appropriated by the bill, but as
long as a provision calls for an obvious reduction at some point in
time during the fiscal year, it is in order under the Holman rule even
if the reduction takes place in the future in an amount actually
determined when the reduction takes place (for example, by formula).
Manual Sec. 844a. Language held in order as effectuating a
retrenchment has included a proposition--legislative in form--
providing that total appropriations in the bill be reduced by a
specified amount. Deschler Ch 26 Sec. 4.5.
It has been said that the Holman rule should be strictly construed
in order to avoid the admission of ineligible legislative riders under
guise of a retrenchment. 7 Cannon Sec. 1510.
Sec. 47 . Germaneness Requirements; Application to Funds in Other
Bills
The Holman rule (Rule XXI clause 2), while permitting certain
retrenchment provisions as an exception to the prohibition against
legislation in appropriation bills, requires that such provisions be
germane. Manual Sec. 834. An amendment providing that appropriations
``herein and heretofore made'' be reduced by a reduction of certain
employees was held to be legislative and not germane to the bill,
since it went to funds other than those carried therein, and was
therefore not within the Holman rule exception. 89-2, Oct. 18, 1966, p
27425. An amendment proposing to change existing law by repealing part
of a retirement act was held not germane and not in order under the
Holman rule. Deschler Ch 26 Sec. 5.15.
[[Page 116]]
Sec. 48 . Reporting Retrenchment Provisions
At one time, retrenching provisions in general appropriation bills
were reported by the legislative committees of the House. 7 Cannon
Sec. 1561. In 1983, the Holman rule was amended to eliminate the
separate authority of legislative committees to report amendments
retrenching expenditures; the new rule permits legislative committees
to merely recommend such retrenchments to the Appropriations Committee
for discretionary inclusion in the reported bill. Manual Secs. 834,
844a.
Sec. 49 . Floor Consideration; Who May Offer
A Member may offer in his individual capacity any germane
amendment providing legislation on an appropriation bill if it
retrenches expenditures under the conditions specified by Rule XXI
clause 2(b). 7 Cannon Sec. 1566. If an objection is made in the
Committee of the Whole that the particular provision constitutes
legislation, the proponent may cite the Holman rule in response to the
point of order:
Member: Mr. Chairman, I make the point of order that the provision
constitutes a legislative proposition in an appropriation bill in
violation of Rule XXI clause 2(b).
Proponent: Mr. Chairman, it is true that this is new legislation,
but it retrenches expenditure, and is therefore in order under the
Holman rule.
Under the earlier practice, retrenching amendments to general
appropriation bills could be offered during the reading of the bill
for amendment in the Committee of the Whole. In 1983, Rule XXI was
narrowed to permit the consideration of retrenchment amendments only
when reading of the bill has been completed and only if the Committee
of the Whole does not adopt a motion to rise and report the bill back
to the House. Manual Sec. 834. Generally, see Sec. 64, infra.
IV. Limitations on General Appropriation Bills
Sec. 50 . In General; When in Order
Generally
While general appropriation bills may not contain legislation,
limitations may validly be imposed under certain circumstances, where
the effect is not to directly change existing law. Deschler Ch 26
Sec. 1. The doctrine of limitations on a general appropriation bill
has emerged over the years primarily from rulings of Chairmen of the
Committee of the Whole. Deschler Ch 26 Sec. 22.26. The basic theory of
limitations is that, just as the House may de-
[[Page 117]]
cline to appropriate for a purpose authorized by law, it may by
limitation prohibit the use of the money for part of the purpose while
appropriating for the remainder of it. The limitation cannot change
existing law, but may negatively restrict the use of funds for an
authorized purpose or project. Deschler Ch 26 Sec. 64.
Set out below are the tests to be applied in determining whether
language in an appropriation bill or amendment thereto constitutes a
permissible limitation (from 7 Cannon Sec. 1706 and Deschler Ch 26
Sec. 64).
Does the limitation apply solely to the appropriation under
consideration?
Note: A limitation may be attached only to the appropriation under
consideration and may not be made applicable to moneys appropriated in
other acts. Sec. 59, infra.
Does it operate beyond the fiscal year for which the
appropriation is made?
Note: A limitation must apply solely to the fiscal year(s) covered
by the bill and may not be made a permanent provision of law. 4 Hinds
Sec. 3929.
Is the limitation coupled with a phrase applying to official
functions, and if so, does the phrase give affirmative
directions in fact or in effect, although not in form?
Note: A proposition to establish affirmative directions for an
executive officer constitutes legislation and is not in order on a
general appropriation bill. 4 Hinds Sec. 3854.
Is it accompanied by a phrase which might be construed to
impose additional duties? Does it curtail or extend, modify, or
alter existing powers or duties, or terminate old or confer new
ones?
Note: Limitations which change the duties imposed by law on an
executive officer in the expenditure of appropriated funds is not in
order. Sec. 54, infra.
Is the limitation authorized in existing law for the period of
the limitation?
Note: An amendment proposing a limitation not authorized in
existing law for the period of the limitation is not in order during
the reading of the bill by paragraph. Rule XXI clause 2(c); Manual
Sec. 834.
A restriction on authority to incur obligations contained in a
general appropriation bill is legislative in nature and is not a
limitation on use of funds in the bill. 100-1, July 13, 1987, pp
19505, 19506.
Certain amendments proposing limitations are in order only after
the reading of the bill for amendment has been completed and, if a
privileged motion to rise and report is offered (by the Majority
Leader or his designee), is rejected. The House rules permit
consideration at this time of amendments proposing limitations not
contained or authorized in existing law or proposing germane
amendments which retrench expenditures. Rule XXI clause 2(d).
Retrenchment of expenditures, see Sec. 46, supra.
[[Page 118]]
Construction of Rule; Burden of Proof
The doctrine permitting limitations on a general appropriation
bill is strictly construed. Deschler Ch 26 Sec. 80.5. The language of
the limitation must not be such as, when fairly construed, would
change existing law (4 Hinds Secs. 3976-3983) or justify an executive
officer in assuming an intent to change existing law (4 Hinds
Sec. 3984; 7 Cannon Sec. 1707). The language of Rule XXI clause 2(c),
which permits limitation amendments during the reading of a bill by
paragraphs only if authorized by existing law, is likewise strictly
construed; it applies only where existing law requires or permits the
inclusion of limiting language in an appropriation act, and not merely
where the limitation is alleged to be ``consistent with existing
law.'' 100-2, June 28, 1988, p 16267.
To be in order the limitation must apply to a specific purpose, or
object, or amount of appropriation. If a proposed limitation goes
beyond the traditionally permissible objectives of a limitation, as
for example by restricting discretion in the timing of the expenditure
of funds rather than restricting their use for a specific object or
purpose, the Chair may rule that the amendment constitutes legislation
in the absence of a convincing argument by the proponent that the
amendment does not change existing law. Deschler Ch 26 Sec. 80.5.
As a general proposition, whenever a limitation is accompanied by
the words ``unless,'' ``except,'' ``until,'' ``if,'' or the like,
there is ground to view the provision with the suspicion that it may
be legislation; and in case of doubt as to its ultimate effect the
doubt should be resolved on the conservative side. Deschler Ch 26
Sec. 52.2. The limitation may not be accompanied by language stating a
motive or purpose in carrying it out. Deschler Ch 26 Sec. 66.4. Where
terms used in a purported limitation are challenged because of their
ambiguity or indefiniteness, the burden is on its proponent to show
that no new duties would arise in the course of applying its terms.
Deschler Ch 26 Sec. 57.17 (note).
Effecting Policy Changes
While a limitation on a general appropriation bill may not involve
changes of existing law or affirmatively restrict executive
discretion, it may, by a simple denial of the use of funds, change
administrative policy and be in order. Deschler Ch 26 Sec. 51.15. For
example, in one instance during consideration of an army appropriation
bill in 1931, an amendment was allowed which provided that the funds
appropriated could not be used for compulsory military training in
certain schools. The Chair noted that the amendment ``simply refuses
to appropriate for purposes which are authorized by law and for which
Congress may or may not appropriate as it sees
[[Page 119]]
fit,'' and that while the amendment did in fact change a policy of the
War Department, ``a change of policy can be made by the failure of
Congress to appropriate for an authorized object.'' 7 Cannon
Sec. 1694.
Limitations Relating to Tax and Tariff Measures
Revenue measures fall within the jurisdiction of the Committee on
Ways and Means. Rule X clause 1(s). Manual Sec. 688. Tax measures may
not be reported by any committee not having jurisdiction thereof. Rule
XXI clause 5(b). Manual Sec. 846b. In determining whether a limitation
in a general appropriation bill constitutes a tax measure proscribed
by this clause, the Chair will consider argument as to the certainty
of impact on revenue collections and tax status or liability. 99-2,
Aug. 1, 1986, p 18649. A limitation on the use of funds contained in
such a bill may be held to violate this clause where the limitation
has the effect of requiring the collection of revenues not otherwise
provided for by law (98-1, Oct. 27, 1983, pp 29611, 29612), or where
it is shown that the imposition of the restriction on IRS funding for
the fiscal year would preclude the IRS from collecting revenues
otherwise due and owing by law (99-1, July 26, 1985, p 20806; 99-2,
Aug. 1, 1986, p 18649). See also 101-2, July 13, 1990, p ____.
Sec. 51 . Limitations on Amount Appropriated
Generally
A negative restriction on the use of funds above a certain amount
in an appropriation bill is in order as a limitation. 91-1, July 30,
1969, p 21471. As long as a limitation on the use of funds restricts
the expenditure of federal funds carried in the bill without changing
existing law, the limitation is in order, even if the federal funds in
question are commingled with non-federal funds which would have to be
accounted for separately in carrying out the limitation. 96-2, Aug.
20, 1980, pp 22171, 22172.
``Not To Exceed'' Limitations
Language that an expenditure ``is not to exceed'' a certain amount
is permissible. Deschler Ch 26 Sec. 67.36. But the fact that funds in
a general appropriation bill are included in the form of a ``not to
exceed'' limitation does not preclude a point of order under clause
2(a), Rule XXI that the funds are not authorized by law. 100-2, June
21, 1988, pp 15438-40.
Ceilings on Total Expenditures
Many limitations on funding that are offered to general
appropriation bills apply to only one of the agencies covered by the
bill. But a limitation may be drafted in such a way as to place a
ceiling on the total amount to
[[Page 120]]
be expended by all agencies covered by the bill. Deschler Ch 26
Secs. 80.1, 80.2.
Spending ``Floors''
Precedents holding in order negative restrictions on the use of
funds must be distinguished from cases where an amendment, though cast
in the form of a limitation, can be interpreted to require the
spending of more money--for example, an amendment prohibiting the use
of funds to keep less than a certain number of people employed. A
``floor'' on employment levels is tantamount to an affirmative
direction to hire no fewer than a specified number of employees, and
would be subject to a point of order as legislation. Deschler Ch 26
Sec. 51.15 (note). That point of order will also lie against an
amendment requiring not less than a certain sum to be used for a
particular purpose where existing law does not mandate such
expenditure. 97-2, July 29, 1982, p 18623.
Sec. 52 . Limitations on Particular Uses
Generally
An amendment prohibiting the use of funds in a general
appropriation bill for a certain purpose is in order, although the
availability of funds for that purpose is authorized by law. Deschler
Ch 26 Sec. 64.1. Such limitations are in order even though contracts
may be left unsatisfied thereby. Deschler Ch 26 Sec. 64.25. An
amendment to a general appropriation bill which is strictly limited to
funds appropriated in the bill, and which is negative and restrictive
in character and prohibits certain uses of the funds, is in order as a
limitation even though its imposition will change the present
distribution of funds and require incidental duties on the part of
those administering the funds. Deschler Ch 26 Sec. 67.19. Thus, it has
been held in order in a general appropriation bill to deny the use of
funds:
For federal officials to formulate or carry out tobacco
programs. 95-1, June 20, 1977, p 19882.
To pay certain rewards. 96-1, July 13, 1979, p 18451.
For implementation of any plan to invade North Vietnam.
Deschler Ch 26 Sec. 70.1.
For the operation and maintenance of facilities where
intoxicating beverages are sold or dispensed. Deschler Ch 26
Sec. 70.4.
To pay government employees a larger wage than that paid for
the same work in private industry. 7 Cannon Sec. 1591.
For work on which naval prisoners were employed in preference
to registered laborers and mechanics. 7 Cannon Sec. 1646.
For salaries or compensation for legal services in connection
with any suit to enjoin labor unions from striking. 7 Cannon
Sec. 1638.
[[Page 121]]
For agriculture commodity programs under which payments to any
single farmer would exceed a certain dollar amount. Deschler Ch
26 Sec. 67.33.
For expansion of court facilities at Flint, Mich. Deschler Ch
26 Sec. 69.6.
For dissemination of market information over government-owned
or leased wires serving privately owned newspapers, radio, or
television. Deschler Ch 26 Sec. 67.9.
Partial Restrictions
An amendment to a general appropriation bill which restricts the
use of money in the bill to a part of an authorized project is in
order though the bill would otherwise permit full funding of the
authorization. 91-1, July 22, 1969, p 20329. While it is not in order
as an amendment to a general appropriation bill to directly restrict
the discretionary authority of a federal agency (Sec. 53, infra), it
is permissible to limit the availability of funds in the bill for part
of an authorized purpose while appropriating for the remainder. 93-2,
June 21, 1974, pp 20601, 20602. In the 95th Congress, the Chair
indicated that an amendment to a general appropriation bill negatively
restricting funding therein for part of a discretionary activity
authorized by law would be in order if no new affirmative duties or
determinations were thereby required. 95-2, June 9, 1978, p 16996.
Restrictions Relating to Agency Regulations
It is in order on a general appropriation bill to deny the use of
funds to carry out an existing agency regulation. Deschler Ch 26
Sec. 64.28. Thus, an amendment providing that no part of a lump sum
shall be used to promulgate or enforce certain rules or regulations
precisely described in the amendment was held to be a proper
limitation restricting the availability of funds and in order.
Deschler Ch 26 Sec. 79.7. The fact that the regulation for which funds
are denied may have been promulgated pursuant to court order and
pursuant to constitutional provisions is an argument on the merits of
the amendment and does not render it legislative in nature. Deschler
Ch 26 Sec. 64.28.
Sec. 53 . Interference With Executive Discretion
Assuming that it does not change existing law, a negative
restriction on the availability of funds for a specified purpose in a
general appropriation bill may be a proper limitation even though it
indirectly interferes with an executive official's discretionary
authority by denying the use of funds. Deschler Ch 26 Sec. 64.26. The
limitation may in fact amount to a change in policy, but if the
limitation is merely a negative restriction on use of funds, it will
normally be allowed. 7 Cannon Sec. 1694; Deschler Ch 26 Sec. 51. Thus,
[[Page 122]]
it is in order on a general appropriation bill to provide that no
part, or not more than a specified amount, of an appropriation shall
be used in a certain way, even though executive discretion be thereby
negatively restricted. 4 Hinds Sec. 3968; Deschler Ch 26 Sec. 51.9.
On the other hand, it is not in order, under the guise of a
limitation, to affirmatively interfere with executive discretion by
coupling a restriction on the payment of funds with a positive
direction to perform certain duties contrary to existing law. Deschler
Ch 26 Sec. 51.12. For example, an amendment prohibiting funds from
being used to handle parcel post at less than attributable cost was
ruled out on the point of order that its effect would directly
interfere with the Postal Rate Commission's quasi-discretionary
authority to establish postal rates under guidelines in law. Deschler
Ch 26 Sec. 51.22.
The point of order lies against language enlarging or granting new
discretionary authority as well as to language curtailing executive
discretion. An amendment in the form of a limitation providing that no
part of the appropriated funds shall be paid to any state unless the
Secretary of Agriculture is satisfied that the state has complied with
certain conditions was held to be legislation imposing new
discretionary authority on a federal official. Deschler Ch 26
Sec. 52.25.
Sec. 54 . Imposing Duties or Requiring Determinations
Generally; Imposing Executive Duties
While it is in order in a general appropriation bill to limit the
use of funds for an activity authorized by law, the House may not,
under the guise of a limitation in the bill, impose additional new
burdens and duties on an executive officer. 91-1, July 31, 1969, pp
21631-33. Such a provision may be ruled out as legislation on a
general appropriation bill in violation of clause 2 Rule XXI. 89-2,
Oct. 4, 1966, p 24975. Of course, the application of any limitation on
an appropriation bill places some minimal extra duties on federal
officials, who, if nothing else, must determine whether a particular
use of funds is prohibited by the limitation; but when an amendment,
while curtailing certain uses of funds carried in the bill, explicitly
places new duties on officers of the government or inevitably requires
them to make investigations, compile evidence, discern the motives or
intent of individuals, or make judgments not otherwise required of
them by law, then it assumes the character of legislation and is
subject to a point of order. Deschler Ch 26 Sec. 52.4.
[[Page 123]]
Requiring Executive Determinations
A restriction on the use of funds in a general appropriation bill
which requires a federal official to make a substantive determination
not required by any law applicable to his authority, thereby requiring
new investigations not required by law, is legislation in violation of
Rule XXI clause 2. Deschler Ch 26 Sec. 52.38. Thus, it is not in order
to require federal officials, in determining the extent of
availability of funds, to make substantial findings not required by
existing law (97-2, Dec. 9, 1982, pp 29690, 29691), or to make
evaluations of propriety and effectiveness not required to be made by
existing law (97-1, Oct. 6, 1981, p 23361). Language requiring new
determinations by federal officials is subject to a point of order
regardless of whether or not state officials administering the federal
funds in question routinely make such determinations. Deschler Ch 26
Sec. 61.12.
On the other hand, if the determinations required by the language
are already required by law, no point of order lies. For example, an
amendment denying funds to rehire certain federal employees engaged in
a strike in violation of federal law was held in order as a limitation
not requiring new determinations on the part of federal officials
administering those funds, since existing law and a court order
enjoining the strike already imposed an obligation on the
administering officials to enforce the law. Deschler Ch 26 Sec. 74.6.
Impermissible Duties or Determinations
Set out below are provisions offered to general appropriation
bills that have been ruled out under Rule XXI clause 2 as imposing new
duties or requiring new determinations not found in existing law:
An amendment proposing a reduction of expenditures through an
apportionment procedure authorized by law, but requiring such
reduction to be made ``without impairing national defense.''
Deschler Ch 26 Sec. 52.6.
Language prohibiting use of funds for the furnishing of
sophisticated weapons systems to certain countries ``unless the
President determines'' it to be important to the national
security, such determination to be reported within 30 days to
the Congress. 91-2, June 4, 1970, p 18400.
An amendment providing that no part of the appropriation could
be used to make grants or loans to any country which the
Secretary of State believed to be dominated by the foreign
government controlling the world Communist movement. Deschler
Ch 26 Sec. 59.17.
An amendment prohibiting payment of funds in the bill for the
support of any action resulting in the destruction of a
structure of historic or cultural significance. Deschler Ch 26
Sec. 52.17.
Language providing funds for grants to states for unemployment
compensation ``only to the extent that the Secretary finds
necessary.'' Deschler Ch 26 Sec. 52.14.
[[Page 124]]
A paragraph requiring that appropriations in the bill be
available for expenses of attendance of officers and employees
at meetings or conventions ``under regulations prescribed by
the Secretary.'' Deschler Ch 26 Sec. 52.13.
An amendment restricting the availability of funds for certain
countries until the President reports to Congress his
determination that such country does not deny or impose more
than nominal restrictions on the right of its citizens to
emigrate. Deschler Ch 26 Sec. 55.5.
An amendment denying the use of funds for foreign firms which
receive certain government subsidies but permitting the
President to waive such restriction in the national interest
with prior notice to Congress. Deschler Ch 26 Sec. 56.7.
An amendment denying the use of funds for a certain
publication until there had been a review of all conclusions
reached therein and a determination that they were factual. 96-
2, July 30, 1980, pp 20504-506.
A provision limiting the availability of funds for grants-in-
aid to any airport that failed to provide designated and
enforced smoking and nonsmoking areas for passengers in airport
terminal areas. 99-2, July 30, 1986, p 18188.
A section restricting funds for special pay of physicians or
dentists whose ``primary'' duties were administrative. 98-1,
Nov. 2, 1983, p 30494.
A provision restricting funds to carry out any requirement
that small business meet certain prequalifications of
``acceptable'' product marketability to be eligible to bid on
certain defense contracts. 98-1, Nov. 2, 1983, p 30495.
Determinations as to Intent or Motive
An amendment curtailing the use of the funds for certain purposes
if the use is with a certain intent or motive requires new
determinations by the officials administering the funds and is subject
to a point of order as legislation. 91-1, July 31, 1969, pp 21653,
21675. Thus an amendment prohibiting the use of funds in the bill to
pay rewards for information leading to the detection of any person
violating certain laws, or ``conniving'' to do so, was ruled out as
legislation since requiring the executive branch to determine what
constitutes ``conniving'' at violating the law. 96-1, July 13, 1979, p
18451. Similarly, an amendment denying use of funds in the bill to
grant business licenses to persons selling drug paraphernalia
``intended for use'' in drug preparation or use was ruled out as
legislation requiring new duties and judgments of government
officials. Deschler Ch 26 Sec. 23.18. In the 93d Congress, an
amendment prohibiting the use of funds in the bill for abortions or
abortion-related services, and defining abortion as the
``intentional'' destruction of unborn human life, was conceded to
impose new affirmative duties on officials administering the funds and
was ruled out as legislation. Deschler Ch 26 Sec. 25.14. And in 1984,
a paragraph denying use
[[Page 125]]
of funds in the bill to sell certain loans except with the consent of
the borrower was conceded to be legislation requiring new
determinations of ``consent'' and was ruled out in violation of clause
2(c) of Rule XXI. 98-2, May 31, 1984, p 14590.
Negative Prohibition and Affirmative Direction Distinguished
To be permitted in a general appropriation bill, a limitation must
be in effect a negative prohibition on the use of the money, not an
affirmative direction to an executive officer. 4 Hinds Sec. 3975. When
it assumes affirmative form by direction to an executive in the
discharge of his duties under existing law, it ceases to be a
limitation and becomes legislation. 7 Cannon Sec. 1606. The limitation
must be in effect a negative prohibition which proposes an easily
discernible standard for determining the application of the use of
funds. Deschler Ch 26 Sec. 52.23.
Imposing ``Incidental'' Duties
The fact that a limitation on the use of funds may impose certain
incidental burdens on executive officials does not destroy the
character of the limitation as long as it does not directly amend
existing law and is descriptive of functions and findings already
required to be undertaken by existing law. Deschler Ch 26 Sec. 71.2;
Manual Sec. 843c. Thus, an amendment reducing the availability of
funds for trade adjustment assistance by amounts of unemployment
insurance entitlements was held in order where the law establishing
trade adjustment assistance already required the disbursing agency to
take into consideration levels of unemployment insurance in
determining payment levels. 96-2, June 18, 1980, p 15355.
The proponent should show that the new duties are merely
incidental to functions already required by law and do not involve
substantive new determinations. 99-1, July 26, 1985, p 20808.
Effect of Information ``Made Known''
As noted above (Sec. 44, supra), the mere requirement that the
executive officer be the recipient of information is not considered as
imposing upon him any additional burdens and is in order. Deschler Ch
26 Sec. 52.5. Where the language on its face merely recites a passive
situation as a condition precedent for receipt of funds, as opposed to
imposing an ongoing responsibility on a federal official to ascertain
information, the language may be a proper limitation. Deschler Ch 26
Sec. 59.19 (note). Thus, a provision denying funds to an executive
when certain information ``shall be made known'' to the executive has
been upheld as a limitation. 7 Cannon Sec. 1695. For a similar ``made
known'' provision, see 103-1, June 30, 1993, p ____. See
[[Page 126]]
also 101-1, Aug. 1, 1981, pp 17156-60, and 104-1, June 22, 1995, p
____, where motions to recommit general appropriation bills with
``made known'' limitations were ruled out as limitations which had not
been considered in the Committee of the Whole and were thus not in
order on the motion to recommit. See Rule XXI clause 2(d). (They were
not challenged as ``legislation'' in violation of Rule XXI clause
2(c).)
Imposing Duties on Nonfederal Official
Under the modern practice, it is not in order to make the
availability of funds in a general appropriation bill contingent upon
a substantive determination by a state or local government official or
agency which is not otherwise required by existing law. 81-1, Mar. 30,
1949, p 3531; 99-1, July 25, 1985, p 20569. See Deschler Ch 26 Sec. 53
(note).
Sec. 55 . -- Duties Relating to Construction or Implementation of Law
Duty of Statutory Construction
While all limitations on funds on appropriation acts require
federal officials to construe the language of that law in
administering those funds, that duty of statutory construction, absent
a further imposition of an affirmative direction not required by law,
does not destroy the validity of the limitation. Deschler Ch 26
Sec. 64.30. Thus, an amendment restricting the use of funds for
abortion or abortion-related services and activities was upheld as a
negative limitation imposing no new duties on federal officials other
than to construe the language of the limitation in administering the
funds. Deschler Ch 26 Sec. 73.8. And it is in order on a general
appropriation bill to deny funds for the payment of salary to a
federal employee who is not in compliance with a federal law, if the
limitation places no new duties on the federal official who is already
charged with enforcing that law. Deschler Ch 26 Sec. 52.34.
On the other hand, it is not in order in a general appropriation
bill to limit the use of an appropriation and to provide how existing
laws, rules, and regulations should be construed in carrying out the
limitation. 96-1, July 16, 1979, p 18806. Nor is it in order to
condition the availability of funds or contract authority upon an
interpretation of local law where that determination is not required
by existing law. 97-1, July 17, 1981, pp 16326, 16327.
Implementation of Existing Rules or Policies
It is in order on a general appropriation bill to make the
availability of funds therein contingent upon the implementation of a
policy already enacted into law, providing the description of that
policy is precise and does not impose additional duties on the
officials responsible for its implementa-
[[Page 127]]
tion. 92-1, Nov. 17, 1971, p 41838. And an amendment prohibiting the
use of funds in the bill to an agency to implement a ruling of the
agency may be held in order as a limitation, where the amendment is
merely descriptive of an existing ruling already promulgated by that
agency and does not require new executive determinations. Deschler Ch
26 Sec. 64.27.
Sec. 56 . Conditional Limitations
Generally
The House may by limitation on a general appropriation bill
provide that an appropriation shall be available contingent on a
future event. 7 Cannon Sec. 1579. However, it is not in order:
To make the availability of funds in the bill contingent upon
a substantive determination by an executive official which he
is not otherwise required by law to make. 92-1, June 23, 1971,
p 21647.
To impose additional duties on an executive officer and to
make the appropriation contingent upon the performance of such
duties. 95-2, June 7, 1978, p 16677.
To condition the use of such funds on the performance of a new
duty not expressly required by law. 95-1, June 23, 1977, p
20597. 93-1, Apr. 17, 1973, p 12781.
To a bill making appropriations for the U.S. contribution to
various international organizations, an amendment providing that none
of the funds might be expended until all other members had met their
financial obligations was ruled out as legislation which imposed a
duty on a federal official to determine the extent of such
obligations. Deschler Ch 26 Sec. 59.16.
In one recent instance, an amendment limiting funds for foreign
aid until the President submitted a report analyzing the effectiveness
of U.S. economic assistance for each recipient country was held to
change existing law and was ruled out of order as a violation of
clause 2 of Rule XXI. 100-2, May 25, 1988, p 12270. But the imposition
of certain incidental burdens on executive officials will not destroy
the character of the limitation so long as those duties--such as
statistical comparisons and findings of residence and employment
status--are already mandated by law. 94-2, Aug. 25, 1976, p 27739.
Language in a general appropriation bill in the form of a
conditional limitation requiring determinations by federal officials
will be held to change existing law in violation of clause 2, Rule XXI
unless the Committee on Appropriations can show that the new duties
are merely incidental to functions already required by law and do not
involve substantive new determinations. 99-1, July 26, 1985, p 20808.
[[Page 128]]
A conditional limitation in a general appropriation bill is also
subject to a point of order where the condition is not related to the
expenditures specified in the bill. Where a bill contained funds not
only for certain allowances for former President Nixon, and also for
other departments and agencies, an amendment delaying the availability
of all funds in the bill until Nixon had made restitution of a
designated amount to the U.S. government was ruled out as not germane
and as legislation, where that contingency was not related to the
availability of other funds in the bill. 93-2, Oct. 2, 1974, pp 33620,
33621. Conditions as legislation on appropriation bills generally, see
Sec. 29, supra.
Condition Subsequent
Where the expenditure of funds made available in an appropriation
bill is subject to a condition subsequent--so that spending is to
cease upon the occurrence of a specified condition--the language may
be upheld as a proper limitation on an appropriation bill, provided
that it does not change existing law. This is so even though the
contingency specified may never occur. Deschler Ch 26 Sec. 67.2. Thus,
a provision that an appropriation for the pay of volunteer soldiers
should not be available longer than a certain period after the
ratification of a treaty of peace was upheld as a limitation. 4 Hinds
Sec. 4004. Other conditions subsequent that have been upheld as
limitations have included:
An amendment stating that if the appropriations act were to be
declared unconstitutional by the Supreme Court, none of the
money provided could thereafter be spent. Deschler Ch 26
Sec. 76.6.
An amendment terminating the use of the appropriated funds
after the passage of certain legislation pending before the
Congress. Deschler Ch 26 Sec. 64.10.
On the other hand, it is not in order in a general appropriation
bill to restrict the discretionary authority of an executive official
by a condition subsequent which changes existing law. 99-1, July 31,
1985, p 21909. For example, where existing law confers discretionary
authority on an executive agency as to the submission of health and
safety information by applicants for licenses, an amendment to a
general appropriation bill restricting that discretion by requiring
the submission of such information as a condition of receiving funds
constitutes legislation. 96-1, June 18, 1979, pp 15286, 15287.
Conditions Relating to the Application or Interpretation of State Law
A limitation in a general appropriation bill may be upheld where
it denies funds for a certain activity where that activity would be in
violation of state law. But such a limitation may be subject to a
point of order if
[[Page 129]]
it imposes on federal officials a duty to become conversant with a
variety of state laws and regulations. Whether such duty would
constitute a new or additional duty not contemplated in existing law
would then be at issue. Deschler Ch 26 Sec. 67.8. 97-1, July 17, 1981,
pp 16326, 16327.
Language in an appropriation bill which specifies that funds
therein shall not be used for any project which ``does not have local
official approval'' has been upheld as not imposing additional duties,
and in order. 89-1, Oct. 14, 1965, p 26994.
Sec. 57 . Exceptions to Limitations
An exception to a valid limitation in a general appropriation bill
is in order, providing the exception does not add legislative language
in violation of Rule XXI clause 2. Deschler Ch 26 Secs. 64.14, 64.15,
66.7. An exception from a limitation on the use of funds stating that
the limitation does not prohibit their use for certain designated
federal activities may be held in order as not containing new
legislation if those activities are already mandated by law. Deschler
Ch 26 Sec. 66.6. Set out below are other exceptions to limitations in
general appropriation bills that have been held in order:
An amendment inserting ``Except as required by the
Constitution'' in provisions prohibiting the use of funds to
force a school district to take action involving the busing of
students. Deschler Ch 26 Sec. 64.14.
A paragraph denying use of funds for antitrust actions against
units of local government, but providing that the limitation
did not apply to private antitrust actions. Deschler Ch 26
Sec. 66.10.
In an amendment prohibiting the use of funds for food stamp
assistance for certain households, language stating that such
limitation did not apply to a household eligible for general
assistance from a local government. Deschler Ch 26 Sec. 64.15.
Exceptions to limitation amendments which fail to comply with the
principle that limiting language must not contain legislation are
subject to a point of order under Rule XXI clause 2. Deschler Ch 26
Sec. 63.7. That point of order will lie, for example, against an
exception from a limitation if it contains legislation requiring new
executive determinations. 94-2, June 16, 1976, pp 18681, 18682.
However, an exception from a limitation may include language precisely
descriptive of authority provided in law so long as the exception only
requires determinations already required by law and does not impose
new duties on federal officials. Deschler Ch 26 Sec. 66.3.
Sec. 58 . Limitations as to Recipients of Funds
While it is not in order in a general appropriation bill to
legislate as to qualifications of the recipients of an appropriation,
the House may specify
[[Page 130]]
that no part of the appropriation shall go to recipients lacking
certain qualifications. 7 Cannon Sec. 1655; Manual Sec. 843a. See also
Deschler Ch 26 Sec. 53. It is in order to describe the qualifications
of the recipients of the funds and to deny the availability of those
funds to recipients not meeting those criteria, the restriction being
confined to the fiscal year covered by the bill. 92-2, June 29, 1972,
p 23364. It is likewise in order to deny the availability of funds in
the bill to an office that fails to satisfy certain factual criteria,
so long as no new substantive determinations are required. 95-2, June
14, 1978, p 17668.
Amendments requiring the recipients of funds carried in the bill
to be in compliance with an existing law have been permitted where the
concerned federal officials are already under an obligation to oversee
the enforcement of existing law and are thus burdened by no additional
duties by the amendment. 91-1, July 31, 1969, p 21633.
Set out below are limitations relating to the qualifications of
recipients which have been held in order in a general appropriation
bill: