[House Practice: A Guide to the Rules, Precedents and Procedures of the House]
[Chapter 4. Appropriations]
[From the U.S. Government Publishing Office, www.gpo.gov]
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CHAPTER 4 - APPROPRIATIONS
HOUSE PRACTICE
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
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D. Authorization for Public Works
Sec. 24. In General
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 Before, 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
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Sec. 49. Floor Consideration; Who May Offer
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
Sec. 59a. Funding Floors
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; Perfecting Amendments;
En Bloc 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
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Sec. 73. Supplemental Appropriations
Sec. 74. Appropriations for a Single Agency
Sec. 75. Consideration
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. Sec. 7, 9
4 Hinds Sec. Sec. 3553-4018
7 Cannon Sec. Sec. 1116-1720
Deschler Chs 25, 26
Manual Sec. Sec. 143, 716, 717, 747, 853, 1035-1065, 1127,
1130(6)
I. Introductory
Sec. 1 . In General; Constitutional Background
Article I, section 9, clause 7 of the Constitution provides that
no money ``shall be drawn from the Treasury'' but in consequence of
appropriations made by law. 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 U.S. 308, 322 (1937).
Sec. 2 . Power to Originate Appropriation Bills; House and Senate
Roles
Under article I, section 7, clause 1 of the Constitution, it is
exclusively the prerogative of the House to originate ``revenue''
bills. That clause provides:
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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 Ch 25 Sec. 13. 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 Sec. Sec. 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, section 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.'' 62-1, The
Supply Bills, S. Doc. No. 872.
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 section 3(2)(A) of the Congressional Budget
Act of 1974.
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
departments and 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 also may be general
bills within the meaning of rules XIII and XXI if covering more
than one agency. See Sec. 73, infra.
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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 that may be reported at any time and are privileged for
consideration. See Sec. 6, infra. A joint resolution continuing
appropriations also may be reported and called up as privileged under
the general rules of the House if reported after September 15
preceding the beginning of the fiscal year for which it is applicable.
See Sec. 72, infra. Other continuing appropriation measures, and
special appropriation bills, are not privileged and are therefore
considered under other procedures that give them privilege--such as a
unanimous-consent agreement, a special order reported from the
Committee on Rules, or under suspension. Deschler Ch 25 Sec. Sec. 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 follows:
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.
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 rule X clause 6, which provides
detailed provisions for the consideration of a primary expense
resolution and for subsequent supplemental expense resolutions. With
the exception of the Committee on Appropriations, the rule applies to
``any committee, commission, or other entity.'' Manual Sec. 763;
generally, see Committees.
Under rule XV clause 1(b), the authority of all committees, and
other entities, to incur expenses, including travel expenses, is made
contingent
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upon adoption by the House of expense resolutions as required under
rule X clause 6.
Appropriations from accounts for committee salaries and other
administrative expenses of the House are under the jurisdiction of the
Committee on House Administration. Rule X clause 1(i); Manual
Sec. 724. A resolution reported by that committee providing for such
an expenditure is called up as privileged under rule XIII clause 5(a).
Such a resolution, if not formally reported by the committee, may be
called up and agreed to by unanimous consent. Deschler Ch 17 Sec. 4.
In recent years the resolution, although reported as privileged, has
been considered under a special order of business. E.g., 105-1, Mar.
21, 1997, p ____.
Sec. 5 . Authorization, Appropriation, and Budget Processes
Distinguished
There are three processes 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 that
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. See Budget Process.
In the authorization process, the legislative committees establish
program objectives and may set dollar ceilings on the amounts that may
be appropriated. Once this authorization process is complete for a
particular program or department, the Committee on Appropriations
recommends the actual level of ``budget authority,'' which allows
Federal agencies to enter into obligations. By waiving or not raising
a point of order, the House often grants consent to appropriate funds
for an unauthorized program. 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 (Sec. 27,
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
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include the various trust funds for which the obligational authority
is already provided in basic law. See Sec. 9, infra. This general rule
is further complicated by the fact that Congress may combine
authorizations and appropriations into ``omnibus'' or ``consolidated''
bills at the end of a fiscal year. 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 either funded by
provisions of the permanent laws that created them or by annual
appropriation Acts providing liquidating cash or other funds mandated
by law. 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. Manual Sec. 1045.
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 appropriation 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 appropriation 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-Health and Human Services-Education Departments and
related agencies.
Legislative Branch.
Military Construction.
Transportation Department and related agencies.
Treasury, Postal Service, and general government.
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Veterans Affairs, Housing and Urban Development, and
Independent Agencies.
The question as to just what constitutes a general appropriations
bill is important because rule XXI clause 2, which precludes
unauthorized appropriations and legislation in appropriation bills
applies only to general appropriation bills. Manual Sec. 1044;
Deschler Ch 26 Sec. 1.1; Sec. 27, infra. In the House the 13 regular
appropriation bills and measures providing supplemental appropriations
to two or more agencies are general appropriation bills. Deschler Ch
25 Sec. 6; Deschler Ch 26 Sec. 1.3.
Measures that 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. Deschler Ch 25 Sec. 7.3.
A bill providing appropriations for specific purposes. 8
Cannon Sec. 2285.
A joint resolution providing an appropriation for a single
government agency even where permitting transfer of a portion
of those funds to another agency. Manual Sec. 1044.
A joint resolution reported from the Committee on
Appropriations transferring appropriated funds from one agency
to another. Manual Sec. 1044.
A joint resolution transferring unobligated balances to the
President to be available for specified purposes but containing
no new budget authority. Manual Sec. 1044.
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
appropriation 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 Committee on Appropriations. Manual
Sec. Sec. 1036, 1038. The ``retrenchment'' provision is known as the
Holman rule and is discussed in section 46, infra.
In practice, the concepts ``unauthorized appropriations'' and
``legislation on general appropriation bills'' sometimes have been
applied almost
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interchangeably as grounds for making points of order pursuant to rule
XXI 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 that a ``proposition changing
existing law'' may be construed to include the enactment of a law
where none exists. Deschler Ch 26 Sec. 1; see also Sec. 28, infra. The
two concepts are treated separately in this chapter, however, because
they derive from different paragraphs of rule XXI clause 2 and
constitute distinct restrictions on the authority of the Committee on
Appropriations. Manual Sec. Sec. 1036, 1038.
Enforcement of Rule
As all bills making or authorizing appropriations require
consideration in the Committee of the Whole, it follows that the
enforcement of the rule must ordinarily occur during consideration in
the 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. Manual Sec. 1044; 4 Hinds Sec. 3811. Because portions of the
bill thus stricken are not reported back to the House, rule XXI clause
1 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, because a motion to recommit a general
appropriation bill may not propose an amendment in violation of the
rule. Deschler Ch 26 Sec. 1.4. 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. See Sec. 68, infra.
Sec. 8 . Committee Jurisdiction and Functions
Generally
Today, under rule X clause 1(b) the House Committee on
Appropriations has jurisdiction over all appropriations, including
general appropriation bills. Manual Sec. 716. Special Presidential
messages on rescissions and deferrals of budget authority submitted
pursuant to sections 1012 and 1013 of the Impoundment Control Act of
1974, as well as rescission bills as defined in section 1011, are
referred to the Committee on Appropriations if the proposed
rescissions or deferrals involve funds already appropriated or
obligated. Manual Sec. 717. Impoundments generally, see Budget
Process.
Under the Congressional Budget Act of 1974, the committee was
given jurisdiction over rescissions of appropriations, transfers of
unexpended bal
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ances, and the amount of new spending authority to be effective for a
fiscal year. Rule X clause 1(b); Manual Sec. 716.
Committee Reports
Under rule XIII clause 3(f), a report from the Committee on
Appropriations accompanying any general appropriation bill must
contain a concise statement describing the effect of any provision of
the accompanying bill that directly or indirectly changes the
application of existing law. Manual Sec. 847. Provisions in the bill
that are described in the report as changing existing law are presumed
to be legislation in violation of rule XXI clause 2(b), absent
rebuttal by the committee. Manual Sec. 1044. Rule XIII clause 3(f)
further requires that such reports contain a list of appropriations in
the bill for expenditures not previously authorized by law.
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 appropriation 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. The funds 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. United
States, 142 Ct.Cl. 763 (1958).
An appropriation in a regular appropriation Act 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.
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Permanent Appropriations
A permanent appropriation is budget authority that becomes
available as the result of previously enacted legislation and that
does not require current action by Congress. Examples include the
appropriations for compensation of Members of Congress and the various
trust funds for which the obligational authority is already provided
in basic law. Pub. L. No. 97-51, Sec. 130(c); Appropriations, Budget
Estimates, Etc., S. Doc. No. 105-18, p 937.
B. Authorization of Appropriation
Sec. 10 . In General; Necessity of Authorization
Generally
Rule XXI clause 2(a) prohibits the inclusion in general
appropriation bills of ``unauthorized'' appropriations, except for
``public works and objects that are already in progress.'' Manual
Sec. 1036. Thus, any Member may make a point of order on the House
floor to prevent inclusion of an unauthorized appropriation, although
the House frequently waives the enforcement of the rule. See
Sec. Sec. 67, 68, infra.
Authorization to Precede Appropriation
The enactment of authorizing legislation must occur before, 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 that is conditioned on a future authorization. Deschler Ch
26 Sec. Sec. 7.2, 47.4. However, where lump sums are involved,
language that limits use of an appropriation to programs ``authorized
by law'' or that permits expenditures ``within the limits of the
amount now or hereafter authorized to be appropriated,'' has been held
to insulate the provision 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.
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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
that 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, e.g., 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 may be renewed periodically. The trend
toward periodic authorizations is reflected in the rule adopted in
1970 that requires each standing committee to ensure that
appropriations for continuing programs and activities will be made
annually ``to the maximum extent feasible,'' consistent with the
nature of the programs involved. Programs for which appropriations are
not made annually may have ``sunset'' provisions that require their
review periodically to determine whether they can be modified to
permit annual appropriations. Rule X clause 4(e); Manual Sec. 755.
Sec. 12 . Sufficiency of Authorization
Generally
The term ``authorized by law'' in rule XXI clause 2 is ordinarily
construed as a ``law enacted by the Congress.'' Manual Sec. 1036.
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 or 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 that has been ratified
by both parties. 4 Hinds Sec. 3587; Deschler Ch 26 Sec. 17.9.
Sufficient authorization also may be found
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in legislation contained in a previous appropriation Act that 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. Deschler Ch 26 Sec. 10.8. Organic statutes or general grants
of authority in law constitute sufficient authorization to support
appropriations only where the general laws applicable to the function
or department in question do not require specific or annual
authorizations or a periodic authorization scheme has not subsequently
occupied the field. Manual Sec. 1045.
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, e.g., 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;'' 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, unless the program in question is
such as to fall into the category of a continuation of work in
progress, or unless authorizing legislation in
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a previous appropriation Act has become permanent law. Manual
Sec. Sec. 1036, 1045; 7 Cannon Sec. 1150; Sec. 25, infra.
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 that 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 also may
be ruled out on the ground that it is ``legislation'' on an
appropriation bill. See 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 Sec. Sec. 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, who must shoulder this burden of proof by citing statutory
authority for the appropriation. Deschler Ch 25 Sec. 9.5; Deschler Ch
26 Sec. 9.4. 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.
[[Page 86]]
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
point of order having been raised against the appropriation. Manual
Sec. 1044; Deschler Ch 26 Sec. Sec. 9.1, 9.2. 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. 1044.
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 Sec. Sec. 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 that 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 Sec. Sec. 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 rule XXI clause 2, the rule prohibiting
unauthorized appropriations. 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 87]]
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 increasing the loan authorization for the rural
telephone program above the amount authorized for that purpose.
Deschler Ch 26 Sec. 33.3.
A provision providing funds for the Joint Committee on Defense
Production in excess of the amount authorized by law. Deschler
Ch 26 Sec. 21.5.
A provision containing funds in excess of amounts permitted to
be committed by a Federal agency for mortgage purchases. 97-2,
July 29, 1982, p 18636.
An amendment en bloc transferring appropriations among objects
in the bill, offered under rule XXI clause 2(f), increasing an
appropriation above the authorized amount. Manual Sec. 1063a.
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 also may ``change existing
law'' in violation of clauses 2(b) or 2(c). Provisions that have been
ruled out as unauthorized under rule XXI clause 2 include:
Appropriations for fiscal year 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.
An appropriation 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 88]]
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.
A provision 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.
A provision 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.
A provision 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.
An appropriation for the National Cancer Institute where a
lapsed periodic authorization scheme had preempted reliance on
an organic statute as the source of authorization. Manual
Sec. 1045.
An appropriation for the President to meet ``unanticipated
needs.'' Manual Sec. 1045.
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 Department of Agriculture. 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.
[[Page 89]]
Ruled Out as Unauthorized
An appropriation for a celebration of the centennial of the
establishment of the Department of Agriculture. Deschler Ch 26
Sec. 11.2.
A provision providing for the organization of a new bureau to
conduct investigations relating to agriculture. 4 Hinds
Sec. 3651.
A provision providing for cooperation by and with State
agriculture investigators. 4 Hinds Sec. 3650; 7 Cannon
Sec. Sec. 1301, 1302.
An appropriation 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 Sec. Sec. 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.
An appropriation 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.
An appropriation 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.
An appropriation for necessary expenses of the National Bureau
of Standards (including amounts for the standard reference data
program) for fiscal year 1979. Deschler Ch 26 Sec. 12.9.
[[Page 90]]
Sec. 18 . Defense Programs
Held Authorized by Existing Law
An appropriation for paving of streets and erection of
warehouses incident to the establishment of a naval station. 7
Cannon Sec. 1232.
An appropriation 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 March 11,
1941, to promote the defense of the United States. Deschler Ch
26 Sec. 13.3.
Ruled Out as Unauthorized
An appropriation for transportation of successful candidates
to the Naval Academy. 7 Cannon Sec. 1234.
An appropriation 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 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.
An appropriation 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 streetlights or for improving streets out
of a special fund created by the District of Columbia Gasoline
Tax Act. Deschler Ch 26 Sec. Sec. 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 91]]
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. Deschler Ch 26 Sec. 19.2.
A provision 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.
A provision 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 Sec. Sec. 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.
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 that had been
recommended by the Secretary of the Interior and approved by
the President. Deschler Ch 26 Sec. 15.30.
Ruled Out as Unauthorized
An appropriation 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.
An appropriation to the EPA to establish an independent review
board to review the priorities of the agency. Deschler Ch 26
Sec. 15.2.
[[Page 92]]
A provision 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.
An appropriation ``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.
A provision 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.
An appropriation 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
United States Information Agency 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.
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.
[[Page 93]]
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
Administration. The House in appropriating funds 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 even
though on one occasion the resolution may have been agreed to only by
a preceding House. 4 Hinds Sec. Sec. 3656-3658, 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. 789.
Certain costs associated with the organizational meeting of
the Democratic Caucus or Republican Conference. Manual
Sec. 1126.
The transfer of surplus prior-year funds to liquidate certain
current obligations of the House. Deschler Ch 25 Sec. 5.3.
Ruled Out as Unauthorized
An increase in the total amount for salaries of Members beyond
that authorized. Deschler Ch 26 Sec. 21.2.
An allowance payable to the attending physician of the
Capitol. 86-2, May 17, 1960, p 10447.
[[Page 94]]
Funds for a parking lot for the use of Members and employees
of Congress. Deschler Ch 26 Sec. 20.3.
Funds 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). Such propositions, whether to appropriate for salaries
not established by law or to increase salaries fixed by law, are out
of order either as unauthorized or as changing existing law. 4 Hinds
Sec. Sec. 3664-3667, 3676-3679; Deschler Ch 26 Sec. 43. The mere
appropriation for a salary for one year does not create an office so
as to justify appropriations in succeeding years. 4 Hinds
Sec. Sec. 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
Funds for necessary expenses for a designated number of
officers on the active list of an agency. 98-2, May 31, 1984, p
14590.
Funds 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.
Funds for salaries and expenses of additional inspectors in
the U.S. Customs Service. 98-2, Aug. 1, 1984, pp 21904, 21905.
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), unless the project can be deemed a work in progress
within the meaning of that rule. Deschler Ch 26 Sec. 19.13;
seeSec. 25, infra. An appropriation for a public work in excess of the
amount fixed by law, or for extending a public service beyond the
limits assigned by an executive officer exercising a lawful
discretion, is out of order. 4 Hinds Sec. Sec. 3583, 3584, 3598; 7
Cannon Sec. 1133.
[[Page 95]]
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.
A provision appropriating certain trust funds for expenses
relating to forest roads and trails. Deschler Ch 26 Sec. 28.2.
Sec. 25 . Works in Progress
Rule XXI clause 2(a), the rule that bars appropriations not
previously authorized by law, provides for an exception for
appropriations for ``public works and objects that are already in
progress.'' Manual Sec. 1036. 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. An
appropriation for construction that is in violation of existing law,
which exceeds the limit fixed by law, or is governed by a lapsed
authorization is not permitted under the works-in-
[[Page 96]]
progress exception of rule XXI. Manual Sec. 1048; 4 Hinds
Sec. Sec. 3587, 3702; 7 Cannon Sec. 1332.
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, with actual work having been initiated. 4
Hinds Sec. 3706; Deschler Ch 26 Sec. 8.5. Merely selecting or
purchasing a site for the construction of a building is not
sufficient. 4 Hinds Sec. Sec. 3762, 3785. However, the fact that the
work has been interrupted--even for several years--does not prevent it
from qualifying under the works-in-progress exception of clause 2(a).
4 Hinds Sec. Sec. 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 term ``works and objects'' in the exception to the rule
prohibiting unauthorized appropriations is construed as something
tangible, such as a building or road. 4 Hinds Sec. Sec. 3714, 3715;
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 or an investigation. 4 Hinds Sec. Sec. 3714,
3715, 3719. The term does not extend to the ordinary duties of an
executive or administrative office. 4 Hinds Sec. Sec. 3709, 3713.
Appropriations for extension or repair of an existing road (4
Hinds Sec. Sec. 3793, 3798), bridge (4 Hinds Sec. 3803), or public
building have been admitted as in continuation of a work (4 Hinds
Sec. Sec. 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 Sec. Sec. 3766-3773), as well
as additions to or extensions of existing public buildings (4 Hinds
Sec. Sec. 3774, 3775). However, 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
Sec. Sec. 3741-3750), but
[[Page 97]]
propositions to appropriate for new buildings that were not necessary
adjuncts to the institution have been ruled out (4 Hinds
Sec. Sec. 3755-3759).
Projects that have qualified as a work in progress under rule XXI
clause 2(a) include:
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. Manual Sec. 1049.
A continuation of aircraft experimentation and development.
69-1, Jan. 22, 1926, p 2623.
Projects that have been ruled out because they did not qualify as
a work in progress under rule XXI clause 2(a) include:
New Army hospitals. 4 Hinds Sec. 3740.
A new lighthouse. 4 Hinds Sec. 3728.
An extension of an existing road. Manual Sec. 1049.
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
Almost continuously since the 44th Congress, the rules have
contained language forbidding the inclusion in general appropriation
bills of language ``changing existing law.'' 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, rule XXI clause 2 provides that, with two exceptions, ``A
provision changing existing law may not be reported in a general
appropriation bill . . .'' and that ``An amendment to a general
appropriation bill shall not be in order if changing existing law.''
The exceptions set forth in clause 2(b) are for germane provisions
that change existing law in a way that would ``retrench''
expenditures, and for rescissions of previously enacted
appropriations. Manual Sec. 1038; see Sec. 46, infra.
Language changing existing law in violation of rule XXI often is
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.
[[Page 98]]
Like the rule generally prohibiting unauthorized appropriations,
the restriction against legislating on general appropriation bills is
only enforced if a Member takes the initiative to enforce it by
raising a point of order. See Sec. 67, infra. 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 rule XXI clause
2 prohibitions against legislative language. A point of order under
this rule does not apply to a special order reported from the
Committee on Rules ``self-executing'' the adoption in the House of an
amendment changing existing law. Manual Sec. 1044.
Construction of Rule
The rule that forbids language in a general appropriation bill
that 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 existing 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. Manual Sec. 1053.
Under rule XXI clause 2(c), the restriction against changing
existing law applies specifically to amendments to general
appropriation bills. Manual Sec. 1039. 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
[[Page 99]]
burden of proving that the amendment does not change existing law.
Manual Sec. 1044; Deschler Ch 26 Sec. 22.29.
Sec. 28 . Changing Existing Law by Amendment, Enactment, or Repeal;
Waivers
The prohibition of rule XXI clause 2 against inclusion of a
``provision changing existing law'' is construed as follows:
A change in the text of existing law. Deschler Ch 26
Sec. Sec. 23.11, 24.6.
Note: Existing law may be repeated verbatim in an appropriation
bill, but the slightest change of the text causes it to be ruled out.
4 Hinds Sec. Sec. 3414, 3817; 7 Cannon Sec. Sec. 1391, 1394.
The enactment of law where none exists.
Note: The provision of the rule forbidding legislation in any
general appropriation bill is construed as the enactment of law where
none exists, such as permitting funds to remain available until
expended or beyond the fiscal year covered by the bill, or immediately
upon enactment, where existing law permits no such availability.
Manual Sec. 1052; 4 Hinds Sec. Sec. 3812, 3813.
The repeal of existing law. 7 Cannon Sec. 1403; Deschler Ch 26
Sec. Sec. 24.1, 24.7.
A waiver of a provision of existing law. Manual Sec. 1052;
Deschler Ch 26 Sec. Sec. 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'' or ``without regard to [sections of] the Revised
Statutes.'' Deschler Ch 26 Sec. Sec. 24.8, 26.6.
Sec. 29 . Imposing Contingencies and Conditions
Generally; Conditions Precedent
Provisions making an appropriation contingent on a future event
are often presented in appropriation bills. Manual Sec. 1053. 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 (for
example, to report) where none exist under law? See Sec. 31, infra.
Precedents discussed in sections 29-31, relating to
``conditions,'' could in many instances be cited under the discussion
in sections 20-59a, relating
[[Page 100]]
to ``limitations.'' Language imposing a ``negative restriction'' is
not a proper limitation and constitutes ``legislation,'' if it creates
new law or requires positive determinations and actions where none
exist in law. See 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 Sec. Sec. 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 under
rule XXI clause 2(b) or (c) to a point of order. Language that has
been ruled out pursuant to this rule include:
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.
A provision 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 that 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 that denied the use of funds not subject to audit
``as provided by law'' was offered and adopted.)
A provision 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.
A provision 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.
A provision 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.
[[Page 101]]
An amendment containing certification requirements and
mandating certain contractual provisions as a condition to the
receipt of funds. Manual Sec. 1054.
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
rule XXI clause 2 to require the submission of reports to a committee
of Congress where existing law does not require that submission.
Manual Sec. 1054. Thus, an amendment to a general appropriation bill
precluding the 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. 1053; 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, such as to require it to promulgate
regulations to limit the use of an appropriation. Manual Sec. 1055. As
such, 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 rule XXI
clause 2. 103-1, May 26, 1993, p 11317-19.
[[Page 102]]
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.
A provision 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. Manual Sec. 1055.
An amendment changing a permanent appropriation in existing
law to restrict its availability until all general
appropriation bills are presented to the President. Manual
Sec. 1055.
An amendment limiting funds in the bill for certain
peacekeeping operations unless authorized by Congress. 103-2,
June 27, 1994, p 14613.
A provision restricting certain District of Columbia funds
unless appropriated by Congress where existing law allowed use
without congressional approval. Manual Sec. 1055.
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. Manual
Sec. 1055. Thus, although 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 include:
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.
A provision 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 provision 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.
[[Page 103]]
An amendment providing that no part of the appropriation shall
be used for land acquisition for airport access roads until the
Federal Aviation Administration 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.
A provision 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.
An amendment requiring a determination of ``successor agency''
status. Manual Sec. 1054.
An exception to a limitation on funds requiring determinations
of ``equivalence'' of health benefits plans. Manual Sec. 1054.
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 as long as the description is
precise and does not change that authority in any respect. Deschler Ch
26 Sec. 23.1. However, 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 that does not limit or restrict the use or expenditure of
funds in the bill, but that directs the way in which provisions in the
bill must be interpreted or construed, is legislation. Deschler Ch 26
Sec. 25.15. 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. Manual Sec. 1054; 4 Hinds
Sec. Sec. 3936-3938. Provisions that have been ruled out pursuant to
this rule include:
A provision 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 Sec. Sec. 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.
[[Page 104]]
A provision stating that a limitation on funds in the pending
appropriation bill 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. Manual Sec. 1055.
An amendment that 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 31709.
Incorporation by Reference to Existing Law
An amendment to a general appropriation bill that 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 subject to the provisions of that law. 94-2,
June 24, 1976, pp 20414, 20415. Other provisions ruled out for the
same reason include:
A provision 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.
A provision 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 prohibition of rule XXI clause 2 against a provision changing
existing law has been applied to a wide variety of proposals. A
sampling of these provisions, classified by subject matter, is 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.
[[Page 105]]
Provisions Relating to Commerce
A provision 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.
A provision providing that functions necessary to the
compilation of foreign trade statistics be performed in New
York instead of Washington, DC. Deschler Ch 26 Sec. 40.4.
Provisions Relating to Foreign Affairs
A provision 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.
An amendment requiring a determination of a ``successor
agency'' to the Palestine Broadcasting Corporation. Manual
Sec. 1054.
Provisions Relating to Federal Employment
A provision changing the compensation received by government
employees under the law. 4 Hinds Sec. Sec. 3871, 3881.
A proposition to increase the number of employees fixed by
law. 7 Cannon Sec. 1456; Deschler Ch 26 Sec. 43.13.
A provision authorizing a change in the manner of appointment
of clerks. 4 Hinds Sec. 3880.
A provision permitting an executive official to delegate to an
administrative officer the authority to make appointments of
certain personnel. Deschler Ch 26 Sec. 45.5.
A provision authorizing the Secretary of Defense to adjust the
wages of certain civilian employees. Manual Sec. 1054.
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.
A provision 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.
A provision 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.
[[Page 106]]
Provisions Relating to Congressional Employment and Compensation
A provision increasing or providing additional salary to
Members of Congress. Deschler Ch 26 Sec. Sec. 44.1, 44.2.
A provision 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.
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.
A provision mandating that House offices institute a waste
recycling program. 106-1, June 10, 1999, p ____.
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.
A provision 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 provision 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. Manual
Sec. 1056; Deschler Ch 26 Sec. 77.2. It is in violation of rule XXI
clause 2 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. Manual Sec. 1057. Language directing that
funds in the bill
[[Page 107]]
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.
The Committee on Appropriations may report a limitation on the
availability of funds within the reported bill. However, 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 rule XXI clause 2. 103-1, Sept. 23,
1993, p 22203.
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 Sec. Sec. 3865-3867.
Similarly, a provision 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 rule XXI clause 2. 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. Manual Sec. 1057. 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 or permit an increase in
Members' office allowances only ``if requested in writing.'' Also, it
may not mandate reductions in various appropriations by a variable
percentage calculated in relation to ``overhead.'' Manual Sec. 1054. A
proposal to designate an appropriation as ``emergency spending''
within the meaning of the budget-enforcement laws is fundamentally
legislative in character. Manual Sec. 1052.
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 Sec. Sec. 35.1, 35.2. Thus,
language in a bill providing funds for an agricultural project, for
which funding had been authorized from the re
[[Page 108]]
ceipts 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. Deschler Ch 26 Sec. 28.2. A provision
providing that airport funding be derived from a certain source,
thereby changing the source and method of funding under existing law,
was held to constitute legislation. 106-1, June 23, 1999, p ____.
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.
Changing Allotment Formulas; Setting Priorities
A provision in a general appropriation bill that changes the
legislative formula governing the allotment of funds to recipients is
legislation on an appropriation bill in violation of rule XXI clause
2. Manual Sec. 1056; Deschler Ch 26 Sec. 36.10. 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 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. Similarly, 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.
However, where existing law prescribes a formula for the
allocation of funds among several categories, an amendment merely
reducing the amount earmarked for one of the categories is not
legislation, as long as it does not textually change the statutory
formula. Manual Sec. 1057.
Sec. 35 . Affecting Funds in Other Acts
Generally
Language in a general appropriation bill that is applicable to
funds appropriated in another Act may constitute legislation under
rule XXI clause 2. Deschler Ch 26 Sec. 30.10. Thus, an amendment to an
appropriation bill
[[Page 109]]
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
Under rule XXI clause 2(b), the Committee on Appropriations may
report in a general appropriation bill ``rescissions of appropriations
contained in appropriation Acts.'' However, under rule XXI clause
2(c), an amendment to a general appropriation bill may not change
existing law, as by rescinding an appropriation contained in another
Act or by rescinding contract authority. Manual Sec. 1052; 103-1, May
26, 1993, p 11310.
Sec. 36 . Transfer of Funds-- Within Same Bill
A provision in a general appropriation bill that authorizes an
official to transfer funds among appropriation accounts in the bill
changes existing law in violation of rule XXI clause 2 by including
language conferring new authority. However, direct transfers of
appropriations within the confines of the same bill are normally
considered in order. 7 Cannon Sec. 1468; Deschler Ch 26 Sec. 29. Such
a direct transfer may not include legislative language, such as
requiring the approval of an official. In addition, the transfer of an
appropriation for a purpose authorized to be carried out by a
specified agency may not be transferred to another agency, even within
the same bill. The following illustrations may clarify these
distinctions. The first illustration would be held in order; the
remaining illustrations would not be held in order:
$500,000 is hereby transferred from the Capital Improvement
and Maintenance appropriation to the State and Private Forestry
appropriation.
Funds appropriated in title III of this Act for the Department
of Defense Pilot Mentor-Protege Program may be transferred to
any other appropriation contained in this Act.
Not to exceed 1 percent of any discretionary funds (pursuant
to the Balanced Budget and Emergency Deficit Control Act of
1985, as amended) that are appropriated for the Department of
Education in this Act may be transferred between
appropriations.
$500,000 shall be transferred from the Capital Improvement and
Maintenance appropriation to the State and Private Forestry
appropriation upon approval of the Director of the Office of
Management and Budget.
$500,000 for repair of the official residence of the Vice
President shall be transferred from the General Services
Administration [only agency authorized by law to carry out such
repair] to any department or agency for expenses of carrying
out such activity.
A provision in an appropriation bill may permit certain funds to
be available ``interchangeably'' for expenditure for various
authorized pur
[[Page 110]]
poses. Deschler Ch 26 Sec. 29.8. Similarly, 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.
See also Sec. 63, infra, for a discussion of amendments permitted
to be offered en bloc under rule XXI clause 2(f) that only transfer
appropriations among objects in the bill.
Sec. 37 . -- Transfer of Previously Appropriated Funds
Language in an appropriation bill that 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 also may
constitute a reappropriation of unexpended balances in violation of
clause 2(a) (Deschler Ch 26 Sec. 30.20). For a discussion of
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
Sec. Sec. 30.16, 30.25.
Sec. 38 . Making Funds Available Before, 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. As such, it is not in order in a
general appropriation bill to provide that funds therein are to be
available beyond the fiscal year covered by the bill unless the
authorizing law permits that availability. Deschler Ch 26
Sec. Sec. 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
Act 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.
[[Page 111]]
Provisions in appropriation bills that have been ruled out under
rule XXI clause 2 on a point of order include:
A provision appropriating 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.
A provision making fees and royalties collected pursuant to
law available beyond the current fiscal year. Deschler Ch 26
Sec. 32.9.
A provision appropriating funds for a census available beyond
the time for which it was originally authorized. Deschler Ch 26
Sec. 22.2.
A provision appropriating funds 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.
A provision appropriating 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 stating that the funds shall be
immediately available--that is, before the start of the fiscal year
covered by the bill--is subject to a point of order. A prior ruling
permitting immediate availability has been superseded by more recent
rulings proscribing such immediate availability. Manual Sec. 1052; 7
Cannon Sec. Sec. 1119, 1120. Making funds available in an earlier
fiscal period also may have implications under the Congressional
Budget Act of 1974.
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. Manual
Sec. 1052. 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 rule XXI clause 2. Deschler Ch 26 Sec. Sec. 32.1, 32.2,
32.10. 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 provided that funds for public
[[Page 112]]
building construction shall remain available until the completion of
the work. Deschler Ch 26 Sec. 32.1.
Authority of Committee on Appropriations to Confine Expenditure to
Current Fiscal Year
Although authorizing legislation sometimes provides that funds
authorized therein shall ``remain available until expended,'' the
Committee on Appropriations has never been required, when
appropriating funds for those purposes, to specify that such funds
must remain available until expended. Indeed, the Committee on
Appropriations 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 Sec. 38.1. Provisions in appropriation bills that
have been ruled out under this rule include 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 non-Federal 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.
[[Page 113]]
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. Manual Sec. 1055; 4 Hinds
Sec. Sec. 3854-3859; Deschler Ch 26 Sec. 52. The extra duties that may
invalidate an amendment as being ``legislation'' are duties not now
required by law. The fact that they may be presently in effect, as
required for present and prior years in annual appropriation Acts,
does not protect an amendment from a point of order under rule XXI
clause 2. 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 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. Deschler Ch 26 Sec. 59.19.
To make evaluations of propriety and effectiveness. Manual
Sec. 1054.
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. For example, 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. However, language in a general
[[Page 114]]
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. For example, a provision requiring the Commissioner
of Indian Affairs to report to Congress all interchanges of
appropriations was ruled out as legislation. Deschler Ch 26 Sec. 52.9.
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.
Manual Sec. 1044; 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 rule XXI clause 2,
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. Deschler Ch 26 Sec. 52.
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 exist
[[Page 115]]
ing 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. Manual Sec. 1055; 4 Hinds Sec. Sec. 3848-3852; 7
Cannon Sec. 1437. 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 that 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. Deschler Ch 26 Sec. 59.20. Although 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 that restricts not the funds but the discretionary authority
of a Federal official administering those funds may be ruled out as
legislation. Manual Sec. 1054; Deschler Ch 26 Sec. 51.14.
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 also may 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. 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 that 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. However, where existing law gives an agency
[[Page 116]]
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. 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 may not be
considered as imposing upon him any additional burdens and is in
order. 90-2, June 11, 1968, p 16712. In the 105th Congress, rule XXI
clauses 2(b) and 2(c) were amended to render legislation a provision
that conditions the availability of funds on certain information not
required by existing law on being ``made known'' to an executive
official, overruling 7 Cannon Sec. 1695. Manual Sec. 1054. 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, p 19699. 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 Sec. Sec. 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
Sec. Sec. 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 to be legislation on an appropriation bill and not in order.
Deschler Ch 26 Sec. 37.8.
Waiving Contract Law
Language in a general appropriation bill that waives the
requirements of existing law as to when certain contracts may be
entered into may be
[[Page 117]]
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 advertising 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 Sec. Sec. 22.14, 24.4. This is so notwithstanding rule X clause
1(b), which gives the Committee on Appropriations jurisdiction over
rescissions of appropriations (as distinguished from rescission of
contract authority) (Deschler Ch 26 Sec. 24.4 (note)) and rule XXI
clause 2(b), which permits rescissions of appropriations contained in
appropriation Acts.
The rulings in this section should be considered in the light of
section 401(a) of the Congressional Budget Act, which precludes
consideration of measures reported by legislative committees providing
new contract authority, new authority to incur certain indebtedness,
or new credit authority, unless the measure also provides that such
authority is to be effective ``only to such extent or in the amounts
provided in advance 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.
[[Page 118]]
D. The Holman Rule; Retrenchments
Sec. 46 . In General; Retrenchment of Expenditures
Generally
Rule XXI clause 2(b), which precludes the use of language changing
existing law in a general appropriation bill, makes an exception for
``germane provisions that retrench expenditures by the reduction of
amounts of money covered by the bill'' as reported. 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. 1038.
Decisions under the Holman rule have been rare in the modern
practice of the House. Manual Sec. 1062. The rule applies to general
appropriation bills only and is not applicable to funds other than
those appropriated in the pending bill. 7 Cannon Sec. Sec. 1482, 1525.
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. 1062.
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 in Sec. Sec. 50-59a, 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. An amendment that does not show a reduction on its face
and that is merely speculative is not in order under the rule. Manual
Sec. 1062.
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
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. 1062. 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.
[[Page 119]]
It has been said that the Holman rule should be strictly construed
in order to avoid the admission of ineligible legislative riders under
the guise of a retrenchment. 7 Cannon Sec. 1510.
Sec. 47 . Germaneness Requirements; Application to Funds in Other
Bills
Rule XXI clause 2, the Holman rule, although permitting certain
retrenchment provisions as an exception to the prohibition against
legislation in appropriation bills, requires that such provisions be
germane. Manual Sec. 1038. 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,
because it went to funds other than those carried therein, and was
therefore not within the Holman rule exception. Manual Sec. 1062. 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.
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 Committee on
Appropriations for discretionary inclusion in the reported bill.
Manual Sec. Sec. 1038, 1062.
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
[[Page 120]]
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. 1040; generally, see Sec. 64, infra.
IV. Limitations on General Appropriation Bills
Sec. 50 . In General; When in Order
Generally
Although 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 decline 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 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.
The following tests are applied to determine whether language in
an appropriation bill or amendment thereto constitutes a permissible
limitation:
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. See 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?
[[Page 121]]
Note: A limitation that changes the duties imposed by law on an
executive officer in the expenditure of appropriated funds is not in
order. See 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 under rule XXI clause 2(c).
Manual Sec. 1039.
7 Cannon Sec. 1706; Deschler Ch 26 Sec. 64.
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. Manual Sec. 1053.
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 not offered (by the Majority
Leader or his designee) or is rejected. Rule XXI clause 2(d) permits
consideration at this time of amendments proposing limitations not
contained or authorized in existing law or proposing germane
amendments that retrench expenditures. For a discussion of
retrenchment of expenditures, see Sec. 46, supra.
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 Sec. Sec. 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.'' Manual Sec. 1043.
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. In case of
[[Page 122]]
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
Although 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, during consideration of an army appropriation bill in 1931,
an amendment was allowed that 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 that are authorized by law and for which Congress may or may
not appropriate as it sees 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
Tax and tariff measures fall within the jurisdiction of the
Committee on Ways and Means under rule X clause 1(s). Manual Sec. 741.
Under rule XXI clause 5(a), such measures may not be reported by any
committee not having jurisdiction thereof. In the 108th Congress,
clause 5(a) was amended to include in the definition of a tax or
tariff measure an amendment proposing a limitation on funds in a
general appropriation bill for the administration of a tax or tariff.
This change establishes a different standard for determining a
violation of this rule by an amendment to a reported general
appropriation bill than for a provision in the bill itself. For an
amendment, the Chair needs to find merely a textual relationship
between the amendment and the administration of a tax or tariff. 108-
1, Jan. 7, 2003, p ____. For a provision reported in the bill, the
Chair must find that the provision inevitability and with certainty
impacts revenue collections or tax statuses or liabilities. Manual
Sec. 1066. For example, a limitation on the use of funds reported 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, where it is shown that the imposition of the
restriction on Internal Revenue Service (IRS) funding for the fiscal
year would preclude the
[[Page 123]]
IRS from collecting revenues otherwise due and owing by law, or where
the limitation would inevitably affect revenue collections by the
Customs Service. Manual Sec. 1066.
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 that would have to be
accounted for separately in carrying out the limitation. Manual
Sec. 1053.
``Not To Exceed'' Limitations
Language that an expenditure ``is not to exceed'' a certain amount
is permissible. Deschler Ch 26 Sec. 67.36. However, 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
rule XXI clause 2(a) that the funds are not authorized by law. Manual
Sec. 1044.
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. However, a limitation may be drafted in such a way as to place a
ceiling on the total amount to be expended by all agencies covered by
the bill. Deschler Ch 26 Sec. Sec. 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 fewer 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. Manual Sec. 1057.
[[Page 124]]
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 that is strictly limited to
funds appropriated in the bill, and that 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:
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.
To implement any plan to invade North Vietnam. Deschler Ch 26
Sec. 70.1.
To operate and maintain 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.
To pay for work on which naval prisoners were employed in
preference to registered laborers and mechanics. 7 Cannon
Sec. 1646.
To pay for salaries or compensation for legal services in
connection with any suit to enjoin labor unions from striking.
7 Cannon Sec. 1638.
To pay for agriculture commodity programs under which payments
to any single farmer would exceed a certain dollar amount.
Deschler Ch 26 Sec. 67.33.
To expand court facilities at Flint, Michigan Deschler Ch 26
Sec. 69.6.
To disseminate market information over government-owned or -
leased wires serving privately owned newspapers, radio, or
television. Deschler Ch 26 Sec. 67.9.
In the 108th Congress, rule XXI clause 5(a) was amended to include
in the definition of a tax or tariff measure an amendment proposing a
limitation on funds in a general appropriation bill for the
administration of a tax or tariff. For a discussion of the standard
for a limitation contained in an amendment to a reported general
appropriation bill as opposed to the standard for a provision in the
bill itself, see Sec. 50, supra.
Partial Restrictions
An amendment to a general appropriation bill that 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,
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1969, p 20329. Although 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 the remainder. Manual Sec. 1053. 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,
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
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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 against 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
Although 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. Such a provision may be
ruled out as legislation on a general appropriation bill in violation
of rule XXI clause 2. Manual Sec. 1054. 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.
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, or to make evaluations of propriety and effectiveness
not required to be made by existing law. Manual Sec. 1054. Language
requiring new determinations by Federal officials is subject to a
point of order regardless of whether or not State officials
administering the Federal
[[Page 127]]
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, because 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 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.
A provision 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. Deschler Ch 26 Sec. 56.1.
An amendment providing that no part of the appropriation could
be used to make grants or loans to any country that 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.
A provision providing funds for grants to States for
unemployment compensation ``only to the extent that the
Secretary finds necessary.'' Deschler Ch 26 Sec. 52.14.
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 that
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.
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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.