[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[A. Introductory Matters]
[Â§ 1. Generally; Scope]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 5225-5235]
 
                               CHAPTER 26
 
    Unauthorized Appropriations; Legislation on Appropriation Bills
 
                        A. INTRODUCTORY MATTERS
 
Sec. 1. Generally; Scope



    A House rule prohibits the inclusion in general appropriation bills 
of ``unauthorized'' appropriations, except for works in progress, and 
prohibits provisions ``changing existing law,'' usually referred to as 
``legislation on an appropriation bill,'' except for provisions that 
retrench expenditures under certain prescribed 
conditions.(1)
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 1. Rule XXI clause 2, House Rules and Manual Sec. 834 (1985). The 
        ``retrenchment'' provision is known as the Holman rule, and is 
        discussed in Sec. Sec. 4, 5, infra.
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    The statement of the rule under which most of the precedents in 
this chapter were decided is as follows: (2)
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 2. See Rule XXI clause 2, House Rules and Manual Sec. 834 (1973). This 
        chapter discusses significant recent rulings through 1984. For 
        earlier treatment, see 4 Hinds' Precedents Sec. Sec. 3701-4018; 
        7 Cannon's Precedents Sec. Sec. 1125-1570, 1579-1720.
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        No appropriation shall be reported in any general appropriation 
    bill, or be in order as an amendment thereto, for any expenditure 
    not previously authorized by law, unless in continuation of 
    appropriations for such public works and objects as are already in 
    progress. Nor shall any provision in any such bill or amendment 
    thereto changing existing law be in order, except such as being 
    germane to the subject matter of the bill shall retrench 
    expenditures by the reduction of the number and salary of the 
    officers of the United States, by the reduction of the compensation 
    of any person paid out of the Treasury of the United States, or by 
    the reduction of amounts of money covered by the bill. . . .

    On Jan. 3, 1981, the 98th Congress restructured and amended the 
clause as follows: paragraph (a) retained the prohibition against 
unauthorized appropriations in general appropriation bills and 
amendments thereto except in continuation of works in progress; 
paragraph (b) narrowed the ``Holman Rule'' exception from the 
prohibition against legislation to cover only retrenchments reducing 
amounts of money included in the bill as reported, and permitted 
legislative committees with proper jurisdiction to recommend such 
retrenchments to the Appro

[[Page 5226]]

priations Committee for discretionary inclusion in the reported bill; 
paragraph (c) retained the prohibition against amendments changing 
existing law but permitted limitation amendments during the reading of 
the bill by paragraph only if specifically authorized by existing law 
for the period of the limitation; and paragraph (d) provided a new 
procedure for consideration of retrenchment and other limitation 
amendments only when reading of a general appropriation 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.(3)
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 3. See Rule XXI clause 2, House Rules and Manual Sec. 834 (1983).
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    The broad requirement that appropriations be ``authorized'' by 
prior legislation is discussed in another chapter.(4) In 
practice, the concepts ``unauthorized appropriations'' and 
``legislation on general appropriation bills'' have frequently been 
used almost interchangeably as grounds for objection in making points 
of order pursuant to Rule XXI clause 2. It can, of course, readily be 
seen that an appropriation sought to be made without prior 
authorization has, in a sense, the effect of legislation, particularly 
in view of rulings of long standing (5) that a ``proposition 
changing existing law'' may be construed to include the enactment of a 
law where none exists. The two concepts are treated separately in this 
chapter, however. For example, it will be seen that the objection that 
an appropriation is ``unauthorized'' is frequently employed where the 
general purpose of the appropriation has been authorized, but the 
amount sought to be appropriated allegedly exceeds the amount 
authorized.(6)
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 4. See Ch. 25, supra, discussing general principles applicable to 
        appropriation bills and the reporting and consideration 
        thereof.
 5. See 4 Hinds' Precedents Sec. Sec. 3812, 3813.
 6. See, for example, Sec. 21, infra.
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    Frequently, rulings on points of order will turn on whether a 
proposition is in fact one of legislation, or whether it is merely a 
permissible ``limitation'' on the funds sought to be appropriated. Such 
limitations may validly be imposed in certain circumstances, where the 
effect is not to directly change existing law. Thus, 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 for the remainder of it.(7) The lan

[[Page 5227]]

guage of the limitation may provide that no part of the appropriation 
under consideration shall be used for a certain designated 
purpose.(8)
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 7. See 4 Hinds' Precedents Sec. 3936; 7 Cannon's Precedents Sec. 1595.
 8. 4 Hinds' Precedents Sec. Sec. 3917-3926; 7 Cannon's Precedents 
        Sec. 1580.
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    Such limitations must not be legislative in character; for example, 
they must not give affirmative directions, impose new duties upon 
executive officers, or by their terms restrict executive discretion to 
such a degree as to constitute a change in policy rather than a matter 
of administrative detail. A separate division in this chapter 
(9) discusses those instances in which the Chair, usually in 
response to points of order based on Rule XXI clause 2, has held that 
the proposition in question was a permissible limitation on the use of 
funds.(10)
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 9. See Sec. Sec. 64-79, infra.
10. A limitation may also be imposed on the total amount appropriated 
        by a bill. See Sec. 80, infra. Pursuant to Sec. 401(a) of the 
        Congressional Budget Act of 1974 (Pub. L. No. 93-344), 
        legislative bills authorizing contract or borrowing spending 
        authority must provide that such authority is available only to 
        the extent or in such amounts provided in appropriations acts. 
        Thus, a properly drafted limitation on new spending authority 
        may be included in a general appropriation bill if specifically 
        required by the act containing that contract or borrowing 
        authority.
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    The rule against unauthorized appropriations and legislation on 
general appropriation bills is one of long standing. Its purpose has 
been to prevent delay of appropriation bills because of contention over 
propositions of legislation while at the same time to require prior 
consideration and enactment of authorizing legislation reported by 
legislative committees with legislative and oversight jurisdiction over 
the policies and programs which form the basis for expenditure of 
government funds.
    It should be emphasized that the rule applies only to ``general'' 
appropriation bills. The broad question as to when a bill may be 
considered a ``general'' appropriation bill, and when not, is discussed 
in another chapter.(11)
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11. See Ch. 25, supra.
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    Note: The rulings cited in this chapter 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.

                          -------------------

``General'' Appropriation Bills

Sec. 1.1 Restrictions imposed by Rule XXI clause 2 apply only

[[Page 5228]]

    to general appropriation bills.

    On May 21, 1937,(12) there was under consideration in 
the Committee of the Whole a joint resolution (H.J. Res. 361) providing 
for appropriations ``to continue to provide relief and work relief on 
useful public projects,'' including projects previously approved for 
the Works Progress Administration. The funds appropriated were to be 
used ``in the discretion of and under the direction of the President.'' 
During consideration of the joint resolution, a point of order was 
raised against the following amendment, and proceedings ensued as 
indicated below:
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12. 81 Cong. Rec. 4936, 75th Cong. 1st Sess. See also 84 Cong. Rec. 
        7345, 7365, 7366, 76th Cong. 1st Sess., June 16, 1939 
        (proceedings relating to H.J. Res. 326, the work relief and 
        public works appropriation bill and a point of order raised by 
        Mr. Claude V. Parsons [Ill.]).
            For further discussion of the distinction between 
        ``general'' appropriation bills and those not falling within 
        that category, see Ch. 25, supra.
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        Page 3, after line 18, insert the following: ``The funds 
    allocated hereunder to the Works Progress Administration shall be 
    so apportioned and distributed over the 12 months of the fiscal 
    year ending June 30, 1938, and shall be so administered during such 
    fiscal year as to constitute the total amount that will be 
    furnished during such fiscal year through such agency for relief 
    purposes.'' . . .
        Mr. Parsons: I make the point of order that the amendment is 
    not in order because it is legislation on an appropriation bill.
        The Chairman: (13) The Chair is ready to rule. The 
    bill in question is not a general appropriation bill, and therefore 
    clause 2 of Rule XXI does not apply. The Chair overrules the point 
    of order.
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13. John J. O'Connor (N.Y.).
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Continuing Appropriations

Sec. 1.2 Parliamentarian's Note: The rule against legislation in 
    appropriation bills is limited to general appropriation bills; 
    thus, a joint resolution continuing appropriations for government 
    agencies pending enactment of the regular appropriation bills, 
    which is not a ``general appropriation bill'' as it does not 
    provide appropriations on an annual basis, is not subject to the 
    prohibitions of Rule XXI clause 2 against legislative language.

    On Sept. 21, 1967,(14) The following proceedings 
occurred in the House:
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14. 113 Cong. Rec. 26370, 90th Cong. 1st Sess.
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        Mr. [George H.] Mahon [of Texas]: Mr. Speaker, I ask unanimous 
    consent

[[Page 5229]]

    that it may be in order on Wednesday, September 27, or any day 
    thereafter, for the House to consider a joint resolution making 
    continuing appropriations.
        The Speaker: (15) Is there objection to the request 
    of the gentleman from Texas?
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15. John W. McCormack (Mass.).
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        Mr. [Frank T.] Bow [of Ohio]: Mr. Speaker, reserving the right 
    to object, I wish to address a parliamentary inquiry to the Chair.
        The Speaker: The gentleman will state his parliamentary 
    inquiry.
        Mr. Bow: Mr. Speaker, the parliamentary inquiry is this: Is a 
    continuing resolution subject to amendment when it is brought onto 
    the floor of the House, if the amendment is germane?
        The Speaker: The Chair will state that any germane amendment 
    will be in order. It would have to be a germane amendment.
        Mr. Bow: I thank the Speaker, and I withdraw my reservation of 
    object.
        The Speaker: Is there objection to the request of the gentleman 
    from Texas? . . .
        Mr. [H. R.] Gross [of Iowa]: Mr. Speaker, further reserving the 
    right to object, may I ask the gentleman from Texas if this is the 
    second, third, fourth, or fifth continuing resolution?
        Mr. Mahon: Mr. Speaker, this is the third continuing resolution 
    to be considered by the House this year.
        I would also say in this case, as in former cases, that the 
    continuing resolution would be considered in the House under the 5-
    minute rule, and I assume any relevant amendment could be offered.
        Mr. Gross: This would be considered in the House under the 5-
    minute rule, and any amendment that is germane could be offered?
        Mr. Mahon: We have considered them heretofore under the 5-
    minute rule and that would be my intention in this case. . . .
        Mr. Gross: Mr. Speaker, in view of the fact that the gentleman 
    says the 5-minute rule will prevail and that any germane amendments 
    will be in order to the continuing resolution, I withdraw my 
    reservation of objection.
        The Speaker: Is there objection to the request of the gentleman 
    from Texas [Mr. Mahon]?
        There was no objection.(16)
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16. Parliamentarian's Note: Had this been a general appropriation bill, 
        it would have been called up as a privileged bill under Rule XI 
        clause 22 (now clause 4), rather than by unanimous consent. See 
        Ch. 25, supra, for further discussion of the privileged nature 
        of general appropriation bills.
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Supplemental Appropriations

Sec. 1.3 A supplemental appropriation joint resolution containing 
    additional funds for two agencies for the balance of the fiscal 
    year was held not to be a ``general'' appropriation bill within the 
    meaning of the rule prohibiting appropriations in general 
    appropriation bills for unauthorized expenditures.

    On Apr. 12, 1973,(17) Mr. George H. Mahon, of Texas, 
called up for

[[Page 5230]]

consideration in the House as in Committee of the Whole a joint 
resolution (H.J. Res. 496) making supplemental appropriations for the 
Civil Aeronautics Board and the Veterans' Administration for fiscal 
year 1973.
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17. 119 Cong. Rec. 12191, 93d Cong. 1st Sess. Permission for 
        consideration of this bill was granted on Apr. 10, 1973. The 
        bill was filed on Apr. 11, 1973, pursuant to a unanimous-
        consent agreement to permit filing after adjournment. No points 
        of order against the bill were reserved, either at the time of 
        filing or at the time permission was granted for consideration 
        of the bill.
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    Mr. Silvio O. Conte, of Massachusetts, raised a point of order 
against the appropriation for the Civil Aeronautics Board, and 
proceedings ensued as indicated below:

        Mr. Conte: Mr. Speaker, I raise a point of order in regard to 
    the payments to air carriers for an additional amount for 
    ``payments to air carriers'' in the amount of $26,800,000, to 
    remain available until expended.
        The point of order is that it exceeds the authority to fix 
    rates as set by the Congress under section 406, 72 statute 763, as 
    amended by 76 statute 145, 80 statute 942, and 49 U.S.C. 1376.
        The law states:

            The Board is empowered and directed, upon its own 
        initiative or upon petition of the Postmaster General or an air 
        carrier, (1) to fix and determine from time to time, after 
        notice and hearing, the fair and reasonable rates of 
        compensation for the transportation of mail by aircraft.

        Later on, in section (b) of the same authority to fix rates, 
    the rate may be determined under (3):

            The need of each such air carrier (other than a 
        supplemental air carrier) for compensation for the 
        transportation of mail sufficient to insure the performance of 
        such service, and, together with all other revenue of the air 
        carrier . . . .

        Therefore, Mr. Speaker, I raise the point of order that this 
    appropriation exceeds the authorization as passed by the Congress 
    and signed into law by the President. . . .
        The Speaker: (18) The Chair is ready to rule.
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18. Carl Albert (Okla.).
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        The pending House joint resolution is not a general 
    appropriation bill. The point of order which the gentleman has made 
    does not apply to this pending legislation.
        The Chair, therefore, overrules the point of order.

    Parliamentarian's Note: This bill, containing as it did 
appropriations for two agencies for the remainder of the fiscal year, 
would have qualified as a ``general appropriation bill'' under the 
precedents. However, the Committee on Appropriations filed the bill 
under the impression it was not a general bill, and since no points of 
order were reserved, none could have been pressed in Committee of the 
Whole.

Legislation in Motion to Recommit

Sec. 1.4 If any portion of a motion to recommit with instruc

[[Page 5231]]

    tions constitutes legislation on an appropriation bill, the entire 
    motion is out of order.

    On Sept. 1, 1976,(19) During consideration in the House 
of the legislative branch appropriation bill (H.R. 14238), a point of 
order was raised and sustained against a motion to recommit as 
indicated below:
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19. 122 Cong. Rec. 28883, 28884, 94th Cong. 2d Sess. The Clerk read as 
        follows:
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        The Clerk read as follows:

            Mr. [R. Lawrence] Coughlin [of Pennsylvania] moves to 
        recommit the bill, H.R. 14238, to the Committee on 
        Appropriations, with instructions to that Committee to report 
        the bill back to the House forthwith, with the following 
        amendments: On page 7, after line 24, insert the following new 
        section: . . .
            ``Expenditure of any appropriation contained in this Act, 
        disbursed on behalf of any Member or Committee of the House of 
        Representatives, shall be limited to those funds paid against a 
        voucher, signed and approved by a Member of the House of 
        Representatives, stating under penalty of perjury, that the 
        voucher is for official expenses as authorized by law: Provided 
        further, That any Member of the House of Representatives who 
        willfully makes and subscribes to any such voucher which 
        contains a written declaration that it is made under the 
        penalties of perjury and which he does not believe at the time 
        to be true and correct in every material matter, shall be 
        guilty of a felony and, upon conviction thereof, shall be fined 
        not more than $2,000 or imprisoned for not more than five 
        years, or both.''. . .

        Mr. [John D.] Dingell [of Michigan]: Mr. Speaker, I make a 
    point of order against the motion to recommit. . . .
        Mr. Speaker, the motion to recommit falls in violation of the 
    rules against legislation in an appropriation bill. Under the rules 
    of the House, Mr. Speaker, a motion to recommit is subject to the 
    same germaneness tests as any other amendment to a piece of 
    legislation.
        Mr. Speaker, I therefore make a point of order against the 
    motion on the grounds that it constitutes an attempt to legislate 
    in an appropriation bill. . . .
        On page 3, there is a requirement that any Member who makes a 
    willful statement subscribing any voucher shall be guilty of the 
    penalties of perjury.
        This adds essentially a new amendment to the Criminal Code, 
    which most properly can be found in title 18 of the United States 
    Code, and it imposes further, Mr. Speaker, a requirement that such 
    act shall constitute a felony which will be punishable by not more 
    than $2,000 or subject to imprisonment of not more than 5 years. . 
    . .
        Mr. Coughlin Mr. Speaker, I rise in opposition to the point of 
    order that has been raised. . . .
        Mr. Speaker, with respect to the point of order addressed to 
    the execution of vouchers under penalties of perjury, that does not 
    impose a significant additional duty in compliance with the facts 
    that those vouchers must already be executed by the Members 
    certifying that they are for official expenses. This motion says 
    they would be executed under penalty of perjury.

[[Page 5232]]

        The additional amendment would concede the point of order as it 
    applies to the second paragraph on page 3 of the motion, but I 
    think it would be beneficial to the Members to have that 
    explanation there; and I would hope that the point of order would 
    be withdrawn as to that point. . . .
        The Speaker: (20) The Chair is prepared to rule. The 
    Chair is going to sustain the point of order. The gentleman from 
    Pennsylvania has conceded one portion of the point of order, and 
    with that the entire motion to recommit is subject to a point of 
    order.
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20. Carl Albert (Okla.).
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Procedure for Offering Limitations

Sec. 1.5 When a general appropriation bill has been read, or considered 
    as read, for amendment in its entirety, the Chair (after 
    entertaining points of order) first entertains amendments which are 
    not prohibited by Rule XXI clause 2(c), and then recognizes for 
    amendments proposing limitations not contained or authorized in 
    existing law pursuant to Rule XXI clause 2(d), subject to the 
    preferential motion that the Committee of the Whole rise and report 
    the bill to the House with such amendments as may have been agreed 
    to.

    On Oct. 27, 1983,(1) The Committee of the Whole had 
under consideration the Treasury Department and Postal Service 
appropriation bill (H.R. 4139), when the following proceedings 
occurred:
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 1. 129 Cong. Rec. --, 98th Cong. 1st Sess.
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        Mr. [Christopher H.] Smith of New Jersey: Mr. Chairman, would 
    it be in order at this time to offer a change in the language that 
    would not be considered under the House rules to be legislating on 
    an appropriations bill?
        The Chairman: (2) The Chair will first entertain any 
    amendment to the bill which is not prohibited by clause 2(c), rule 
    XXI, and will then entertain amendments proposing limitations 
    pursuant to clause 2(d), rule XXI.
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 2. Philip R. Sharp (Ind.).
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        Mr. Smith of New Jersey: Mr. Chairman, I offer an amendment.
        Mr. [Bruce A.] Morrison of Connecticut: Mr. Chairman, I reserve 
    a point of order against the amendment.
        The Chairman: The Clerk will report the amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Smith of New Jersey: On page 49, 
        immediately after line 2, add the following new section:

            ``Sec. 618. No funds appropriated by this Act shall be 
        available to pay for an abortion, or the administrative 
        expenses in connection with any health plan under the Federal 
        employees health benefit program which provides any benefits or 
        coverages for abortions, under such negotiated plans after the 
        last day of the contracts currently in force.''

[[Page 5233]]

        Mr. Morrison of Connecticut: Mr. Chairman, I would like to be 
    heard on my point of order.
        The Chairman: The Chair will hear the gentleman's point of 
    order.
        Mr. Morrison of Connecticut: Mr. Chairman, my point of order is 
    that this amendment constitutes a limitation on an appropriation 
    and cannot be considered by the House prior to the consideration of 
    a motion by the Committee to rise.
        The Chairman: The Chair must indicate to the gentleman that no 
    such preferential motion has yet been made.
        The gentleman is correct that a motion that the Committee rise 
    and report the bill to the House with such amendments as may have 
    been adopted takes precedence over an amendment proposing a 
    limitation.

Motion to Rise and Report With Recommendation For Recommittal

Sec. 1.6 Pursuant to Rule XXI clause 2, as adopted in the 98th 
    Congress, a motion that the Committee of the Whole rise and report 
    a general appropriation bill to the House with such amendments as 
    may have been adopted takes precedence over an amendment proposing 
    a limitation not contained or authorized in existing law, after the 
    bill has been read for amendment in its entirety; accordingly a 
    motion that the Committee rise and report the bill to the House 
    with the recommendation that it be recommitted, with instructions 
    to the committee to report the bill back to the House (whether or 
    not forthwith) with an amendment proposing such a limitation, does 
    not take precedence of the motion to rise and report the bill to 
    the House with such amendments as may have been adopted.

    The following motions were made on Sept. 19, 1983,(3) 
during consideration of H.R. 3222 (Departments of Commerce, State, 
Justice, and the Judiciary appropriations for fiscal 1984):
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 3. 129 Cong. Rec. --, 98th Cong. 1st Sess.
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        The Clerk read as follows:

            Mr. [Neal] Smith of Iowa moves that the Committee do now 
        rise and report the bill to the House with sundry amendments 
        with the recommendation that the amendments be agreed to and 
        that the bill as amended do pass.

        Mr. [Robert S.] Walker [of Pennsylvania]: Mr. Chairman, I have 
    a preferential motion at the desk.
        The Chairman: (4) The Clerk will report the 
    preferential motion.
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 4. George E. Brown, Jr. (Calif.).
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        The Clerk read as follows:

            Mr. Walker moves that the Committee do now rise and report 
        the bill to the House with the recommendation that the bill, as

[[Page 5234]]

         amended, be recommitted to the Committee on Appropriations 
        with instructions that the committee report the bill, as 
        amended, back to the House with the following amendment:
            At the end of title II, add the following new section:
            ``None of the funds appropriated under this title shall be 
        used to prevent or in any way prohibit the implementation of 
        programs of voluntary school prayer and meditation in the 
        public schools.''

    Mr. Smith made a point of order against the preferential motion on 
the ground that the motion violated clause 2 of Rule XXI.
    The effect of the Walker motion would have been to reverse the 
precedence contemplated by Rule XXI clause 2(d) by allowing a vote on a 
limitation amendment before the motion to rise and report. Accordingly, 
the Chair indicated that, although a motion that the Committee of the 
Whole rise and report a bill to the House with the recommendation that 
the bill be recommitted is preferential to a motion to rise and report 
where a bill has been read in full under the general five-minute rule 
of the House,(5) instructions in a recommittal motion may 
not propose an amendment which would not be in order. The Chair applied 
the principle that it is not in order to do indirectly (by a motion to 
recommit with instructions to report a particular amendment back to the 
House) that which may not be done directly under the rules of the House 
by way of amendment.
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 5. 8 Cannon's Precedents Sec. 2329.
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    On appeal, the Chair's decision was sustained by a voice vote.

Legislative Language in Prior Appropriation Acts

Sec. 1.7 The fact that legislative language may have been included in 
    appropriation acts in prior years applicable to funds in those laws 
    does not permit the inclusion in a general appropriation bill of 
    similar language requiring officials to make determinations not 
    otherwise required by law for the fiscal year in question.

    The ruling of the Chair on Sept. 22, 1983,(6) as that a 
provision in a general appropriation bill prohibiting the use of funds 
therein to perform abortions except where the life of the mother would 
be endangered if the fetus were carried to term, and providing that the 
several states shall remain free not to fund abortions to the extent 
they deem appropriate, is legislation requiring federal officials to 
make determinations and judgments not required by law, not

[[Page 5235]]

withstanding the inclusion in prior year appropriation bills of similar 
legislation applicable to funds in prior years. The proceedings are 
discussed in Sec. 52.44, infra.
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 6. 129 Cong. Rec. --, 98th Cong. 1st Sess.
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