[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[B. Appropriations for Unauthorized Purposes]
[Â§ 9. Burden of Proof of Authorization]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 5410-5419]
 
                               CHAPTER 26
 
    Unauthorized Appropriations; Legislation on Appropriation Bills
 
              B. APPROPRIATIONS FOR UNAUTHORIZED PURPOSES
 
Sec. 9. Burden of Proof of Authorization

Burden on Proponent of Amendment

Sec. 9.1 The burden of proof is upon the proponent of an amendment to a 
    general appropriation to show that the appropriation therein is 
    authorized by law; and where the proponent was unable to cite a law 
    authorizing the appropriation, the Chair refused to look beyond the 
    absence of a statutory citation to determine whether a bill had 
    been unconstitutionally ``pocket vetoed''.

    The above principle is well established. Thus, on May 11, 
1971,(4) during consideration of H.R. 8190, a supplemental 
appropriation bill, the following proceedings took place:
---------------------------------------------------------------------------
 4. 117 Cong. Rec. 14471, 92d Cong. 1st Sess. See also 96 Cong. Rec. 
        7426, 7427, 81st Cong. 2d Sess., May 22, 1950; 81 Cong. Rec. 
        4684, 4685, 75th Cong. 1st Sess., May 17, 1937.
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        Mr. [Fred B.] Rooney of Pennsylvania: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Rooney of Pennsylvania: On page 8, 
        after line 15 insert:

[[Page 5411]]

                        ``National Institutes of Health

                               ``health manpower

            ``For an additional amount for ``Health Manpower,' 
        $25,000,000 to carry out programs in the family practice of 
        medicine, as authorized by the Family Practice of Medicine Act 
        of 1970 (S. 3418, 91st Congress), of which sums of not less 
        than $25,000 each shall be made immediately available for the 
        planning and/or development of Departments of Family Practice 
        at the Milton S. Hershey Medical Center of the Pennsylvania 
        State University, and at the University of North Carolina at 
        Chapel Hill, and at Harvard University and/or the Children's 
        Hospital Medical Center, and at such other eligible 
        institutions as may apply; funds appropriated by this provision 
        are directed to be expended and shall remain available for 
        obligation and expenditure until expended.''

        Mr. [Robert H.] Michel [of Illinois]: Mr. Chairman, I make a 
    point of order against the language of the gentleman's amendment.
        The Chairman: (5) The gentleman will state his point 
    of order.
---------------------------------------------------------------------------
 5. Wayne N. Aspinall (Colo.).
---------------------------------------------------------------------------

        Mr. Michel: Mr. Chairman, the language is out of order on the 
    grounds that we have no legislative authority whatsoever. There is 
    nothing in the code, nothing in the statutes, no legislative 
    authority whatsoever; and this is an appropriation bill. We cannot 
    be appropriating for anything that is not authorized, and therefore 
    it is clearly outside our realm of consideration here today.
        Mr. Chairman, I simply make a point of order against the 
    language. . . .
        Mr. Rooney of Pennsylvania: . . . I am sure all of us realize 
    what is involved in the amendment I have offered here today.
        The point of order has been made that it is out of order and 
    that it is not germane. My contention is that it is germane. On 
    December 1, in the 91st Congress, we passed this bill in the House. 
    . . .
        The bill was passed by the House on December 1 by a vote of 346 
    to 2. Two Members of Congress voted against the bill in the House. 
    The bill passed the Senate 64 to 1.
        On December 14, the bill was sent to the White House for the 
    signature of the President. Subsequently, in accordance with a 
    concurrent resolution, the Senate adjourned to a date certain from 
    the close of business on Tuesday, December 22, 1970, until Monday, 
    December 28, 1970.
        Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I must insist that 
    the gentleman is not addressing himself to the point of order.
        Mr. Rooney of Pennsylvania: I am addressing myself to the point 
    of order.

        The Chairman: The Chair would suggest that the gentleman is 
    trying to address himself to the point of order. The Chair is ready 
    to rule, and wants the gentleman from Pennsylvania to be as brief 
    as possible.
        Mr. Rooney of Pennsylvania: Both bodies, the House and the 
    Senate, had given unanimous consent for designated officers to 
    receive messages from the President during the Christmas recess.
        The President took advantage of our Christmas recess to veto 
    this legislation by a pocket veto.
        Despite the fact that we were still in session, that we had 
    officers from the

[[Page 5412]]

    House and the Senate standing by ready to receive any veto message, 
    he failed and refused to send it over, and instead he pocket vetoed 
    this bill.
        Mr. [Frank T.] Bow [of Ohio]: Mr. Chairman, will the gentleman 
    yield?
        Mr. Rooney of Pennsylvania: I am glad to yield to the gentleman 
    from Ohio.
        Mr. Bow: Has the gentleman read the resolution of adjournment 
    of the House? There is nothing in there on the receiving of 
    messages or any papers from the President. It is a straight 
    adjournment.
        Mr. Rooney of Pennsylvania: I believe if the gentleman will 
    look at the record he will find out that both Houses had officers 
    standing by to receive any message from the President, and this is 
    my contention.
        Mr. Bow: The adjournment resolution does not contain any such 
    thing.
        Mr. Rooney of Pennsylvania: It is my contention the President's 
    declaration of a pocket veto in this instance represented an 
    inappropriate use of such veto power.
        In this session of Congress we are going to have 10 recesses, 
    and the President can take advantage of the same pocket veto abuse 
    of this legislation.
        I maintain, Mr. Chairman, that this bill was enacted into law 
    on the 24th day of December, 1970.
        The Chairman: The Chair is ready to rule.
        The gentleman from Pennsylvania [Mr. Rooney] has offered an 
    amendment providing $25 million to implement the provisions of the 
    Family Practice of Medicine Act of 1970.
        The gentleman from Illinois has raised a point of order against 
    the amendment on the ground that it provides for an expenditure 
    that is not authorized by law.
        When the question of authorization is raised against an item in 
    or an amendment to an appropriation bill, it is incumbent upon the 
    committee reporting the bill or the proponent of the amendment to 
    cite the law permitting the appropriation. The proponent of the 
    amendment in this case has referred the Chair to the bill passed by 
    the other body on September 14, 1970, and passed by the House on 
    December 1, 1970. He has also outlined other legislative history 
    concerning the bill, including the fact that the bill was sent to 
    the President who saw fit to ``pocket veto'' the measure during the 
    Christmas adjournment of the Congress last year.
        The Chair is not oblivious to the fact that certain questions 
    have been raised about the legal propriety of this veto. However, 
    the Chair cannot rule on this constitutional question. The Chair 
    may only refer to the statutes at large or the United States Code 
    to find the authorization required to support this appropriation. 
    Since no such statute can be cited, the Chair must sustain the 
    point of order.

Sec. 9.2 It is incumbent upon the proponent of an amendment to an 
    appropriation bill to cite authority in law for the proposed 
    appropriation when a point of order is made on the ground of lack 
    of such authority.

    On May 7, 1957,(6) the Committee of the Whole was consid

[[Page 5413]]

ering H.R. 7221, a supplemental appropriation bill. The following 
proceedings took place:
---------------------------------------------------------------------------
 6. 103 Cong. Rec. 6430, 6431, 6446, 85th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [Cleveland M.] Bailey [of West Virginia]: Mr. Chairman, I 
    offer an amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Bailey: Page 4, line 5, strike out 
        ``$25,000'' and insert ``$50,000. Of this amount the sum of 
        $25,000 is to be used to make necessary investigations abroad 
        to determine the wage levels, costs of production and working 
        conditions on articles imported from abroad to assist the 
        Commission in processing claims for injury by domestic 
        producers under section 7 of the Reciprocal Trade Agreements 
        Act.''. . .

        Mr. [Prince H.] Preston [Jr., of Georgia]: Mr. Chairman, I make 
    a point of order against the amendment on the ground that there is 
    no authority for the Tariff Commission to make an investigation 
    abroad into the working conditions under which foreign commodities 
    are produced.
        The Chairman: (7) Will the gentleman from West 
    Virginia cite to the Chair the authority for the Commission to make 
    an investigation? . . .
---------------------------------------------------------------------------
 7. Frank N. Ikard (Tex.).
---------------------------------------------------------------------------

        Mr. Bailey: I could not advise the Chairman to that effect. 
    But, I do not see why they should be limited to this country 
    because apparently nobody else is. If somebody wants some 
    information, they go abroad and get it. I think the Tariff 
    Commission should be afforded the same opportunity. Members of the 
    Congress, if you want to sit idly by and see the major part of your 
    small American industry, which is the backbone of our country, 
    driven out of business, you just ignore a proposition like this.
        The Chairman: In view of the fact that there is no authority 
    cited for the Commission to make the investigations contemplated in 
    the amendment, the Chair sustains the point of order.

    Parliamentarian's Note: After reading of the bill for amendment, 
but prior to the rising of the Committee of the Whole, the proponent of 
the amendment found authority in law for the proposed investigations 
and, by unanimous consent, the amendment was offered again and 
considered.(8)
---------------------------------------------------------------------------
 8. 103 Cong. Rec. 6446, 85th Cong. 1st Sess., May 7, 1957.
---------------------------------------------------------------------------

Committee Has Burden of Showing Authorization for Item in Bill

Sec. 9.3 Language in a general appropriation bill appropriating $5 
    million for the emergency fund for the President was held 
    unauthorized by law, the Chair indicating that, in the absence of a 
    statement to the contrary, the statement that no legislative 
    authority existed for the proposed appropriation was dispositive of 
    the point of order.

    On Jan. 24, 1946,(9) The Committee of the Whole was 
consid

[[Page 5414]]

ering H.R. 5201, an independent offices appropriation. A point of order 
was raised against the paragraph which follows:
---------------------------------------------------------------------------
 9. 92 Cong. Rec. 355, 79th Cong. 2d Sess.
---------------------------------------------------------------------------

                      Emergency Fund for the President

        Emergency fund for the President: Not to exceed $5,000,000 of 
    the appropriation ``Emergency fund for the President,'' contained 
    in the First Supplemental National Defense Appropriation Act, 1943, 
    as supplemented and amended, is hereby continued available until 
    June 30, 1947.
        Mr. [Henry C.] Dworshak [of Idaho]: Mr. Chairman, I make a 
    point of order against the paragraph just read on the ground there 
    is no legislative authority for the appropriation proposed.
        The Chairman: (10) Does the gentleman from Florida 
    desire to be heard on the point of order made by the gentleman from 
    Idaho?
---------------------------------------------------------------------------
10. William M. Whittington (Miss.).
---------------------------------------------------------------------------

        Mr. [Joe] Hendricks [of Florida]: Mr. Chairman, I will leave 
    that to the discretion of the Chair.
        The Chairman: The gentleman from Idaho [Mr. Dworshak] makes a 
    point of order against the paragraph on the ground that the 
    appropriation is not authorized by law. The Chair has stated to the 
    gentleman in charge of the bill, the gentleman from Florida [Mr. 
    Hendricks], that he would be glad to hear him. In the absence of 
    any statement to the contrary, the Chair is bound by the statement 
    of the gentleman from Idaho and, therefore, sustains the point of 
    order.

Burden on Managers of Bill

Sec. 9.4 The burden of proving the authorization for language carried 
    in an appropriation bill falls on the proponents and managers of 
    the bill; and where the lack of authorization is conceded in 
    response to a point of order that the language is legislation, the 
    Chair sustains the point of order.

    On May 28, 1968,(11) the Committee of the Whole was 
considering H.R. 17522, a bill appropriating for the Departments of 
State, Justice, and Commerce. At one point the Clerk read as follows, 
and proceedings ensued as indicated below:
---------------------------------------------------------------------------
11. 114 Cong. Rec. 15357, 15358, 90th Cong. 2d Sess.
---------------------------------------------------------------------------

                      Salaries of Supporting Personnel

        For salaries of all officials and employees of the Federal 
    Judiciary, not otherwise specifically provided for, $43,500,000 . . 
    . Provided further, That without regard to the aforementioned 
    dollar limitations, each circuit judge may appoint an additional 
    law clerk at not to exceed grade (GS) 9.
        Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of 
    order against the language on page 42, beginning on line 3, which 
    reads as follows:

            Provided further, That without regard to the aforementioned 
        dollar limitations, each circuit judge may appoint an 
        additional law clerk at not to exceed (GS) 9.

        Mr. Chairman, I make a point of order against this language on 
    the

[[Page 5415]]

    ground that it is legislation on an appropriation bill. . . .
        The Chairman: (12) Before the Chair rules on the 
    point of order, can the gentleman from New York cite to the Chair 
    the authority the gentleman says is already existing? . . .
---------------------------------------------------------------------------
12. Wayne L. Hayes (Ohio).
---------------------------------------------------------------------------

        The Chair will state that if the additional clerk is authorized 
    somewhere in law, this would be a limitation upon the grade at 
    which the clerk would be appointed. What is sought to be found out 
    is whether there is existing legislation.
        Mr. Gross: I point out, Mr. Chairman, ``without regard to the 
    aforementioned dollar limitations,'' and so on and so forth. It is 
    not a limitation.
        Mr. [John J.] Rooney [of New York]: Mr. Chairman, I am sure 
    this is authorized. However, we will concede the point of order in 
    the interest of saving time and bringing it back to the House after 
    the conference. This does not affect the amount of money for these 
    law clerks.
        The Chairman: In view of that statement, the Chair sustains the 
    point of order.

Burden on Committee on Appropriations

Sec. 9.5 The burden of proving that an item contained in a general 
    appropriation bill is authorized by law is on the Committee on 
    Appropriations, which must cite statutory authority for the 
    appropriation.

    On June 15, 1973,(13) an appropriation for the Office of 
Consumer Affairs, established by Executive order, was stricken from a 
general appropriation bill when the Committee on Appropriations failed 
to cite statutory authority in support of that item.
---------------------------------------------------------------------------
13. 119 Cong. Rec. 19855, 93d Cong. 1st Sess. See also 119 Cong. Rec. 
        38845, 93d Cong. 1st Sess., Nov. 30, 1973 (proceedings relating 
        to H.R. 11576, supplemental appropriations for fiscal 1974).
---------------------------------------------------------------------------

Chair Relies on Citations of Law Presented in Argument

Chair Reversed Ruling on Showing That Original Cited Authority Had Been 
    Superceded

Sec. 9.6 The Committee on Appropriations has the burden of proving the 
    authorization for an appropriation included in a general 
    appropriation bill, but 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. The failure of Congress to enact 
    into law a specific authorization of appropriations for the Bureau 
    of the Mint for the fiscal year

[[Page 5416]]

    in question was initially held not to render an appropriation for 
    that agency subject to a point of order, upon citation to the 
    organic law creating that agency and delegating its functions, 
    where it was not brought to the Chair's attention that the organic 
    law had subsequently been amended with the expressed legislative 
    intent of requiring annual authorizations (a decision subsequently 
    reversed by the Chair on his own initiative upon information that 
    organic law had been amended).

    On June 8, 1983,(14) the Chair initially relied upon a 
citation to the organic law creating the Bureau of the Mint, in order 
to uphold an appropriation for that agency. Subsequently, reversing his 
own ruling that the appropriation was authorized by a general statute 
creating the office and delegating to it functions and 
responsibilities, the Chair ruled that the appropriation for the Bureau 
of the Mint was not authorized by law, where the organic statute 
creating the Mint and implicitly authorizing the appropriation of funds 
had been substantially amended and recodified with the stated 
legislative purpose of requiring annual authorizations for the Bureau 
of the Mint. The proceedings were as follows:
---------------------------------------------------------------------------
14. 129 Cong. Rec. ----, 98th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

                               Bureau of the Mint

                             salaries and expenses

            For necessary expenses of the Bureau of the Mint: 
        $49,558,000.

        Mr. [Frank] Annunzio [of Illinois]: Mr. Chairman, I make a 
    point of order that the appropriations for the Bureau of the Mint, 
    salaries and expenses, contained in title I are not authorized by 
    law. . . .
        Mr. [Edward R.] Roybal [of California]: . . . The Bureau of the 
    Mint has been operating under one form or another since this 
    country was first founded. The Mint has been minting and issuing 
    coins pursuant to authority found in title 31 of the United States 
    Code. Section 251 of title 31 establishes the Bureau and I would 
    just like to read to the Chairman the first part of section 251. It 
    reads as follows:

            There shall be established in the Treasury Department a 
        Bureau of the Mint embracing as an organization and under its 
        control all mints for the manufacture of coin and all assay 
        offices for the stamping of bars which has been or which may be 
        authorized by law.

        Section 253 states:

            The Director of the Mint shall have the general supervision 
        of all mints and assay offices and shall make an annual report 
        to the Secretary of the Treasury of their operations at the 
        close of each fiscal year,

[[Page 5417]]

        and from time to time such additional reports setting forth the 
        operational conditions of such institutions as the Secretary 
        shall require, and shall lay before him the annual estimates 
        for their support; and the Secretary of the Treasury shall 
        appoint the number of clerks classified according to law 
        necessary to discharge the duties of said Bureau.

        Mr. Chairman, I would like to point out that in addition to the 
    sections I have just read, sections 261 through 463 of title 31 set 
    forth in detail the duties of the Bureau of the Mint, and those 
    sections are replete with requirements that the mint must 
    accomplish certain acts.
        I would like to cite Deschler's and Brown's Procedure of the 
    House, chapter 25, section 5.7, which states in part, as follows. 
    Section 5.7 reads as follows:

            The failure of Congress to enact into law separate 
        legislation specifically authorizing appropriations for 
        existing programs does not necessarily render appropriations 
        for those programs subject to a point of order, where more 
        general existing law authorizes appropriations for such 
        programs. Thus, a paragraph in a general appropriation bill 
        purportedly containing some 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. . . .

        The Chairman: (15) The Chair is prepared to rule.
---------------------------------------------------------------------------
15. Gerry E. Studds (Mass.).
---------------------------------------------------------------------------

        The gentleman from Illinois makes the point of order that there 
    is no authorization for the expenses contained in the line in 
    question.
        The gentleman from California cited an organic statute creating 
    the office in question, namely, the Bureau of the Mint.
        The Chair is aware of the bill, H.R. 2628, passed by the House 
    earlier this year, but not yet law. That bill, if and when it 
    becomes law, will authorize some Bureau of Mint appropriations for 
    fiscal 1984 and provide other permanent authorizations for salaries 
    and expenses. Absent citation to such a statute requiring annual 
    authorization, however, the Chair believes that the gentleman from 
    California may rely on an organic act creating the office and 
    authorizing it as a standing authorization in law for the purposes 
    of the Bureau and, therefore, overrules the point of order.
        [Subsequently, the following exchange occurred:]
        The Chairman: The gentleman from California requested the Chair 
    to entertain a return to a point of order earlier overruled.
        The Chair in rare circumstances may agree to such a request and 
    has recognized the gentleman to be heard. . . .
        Mr. Roybal: Mr. Chairman, I yield to the gentleman from 
    Illinois (Mr. Annunzio).
        Mr. Annunzio: . . . I am renewing my point of order that the 
    appropriation violates clause 2 of rule XXI, on page 5, line 14, of 
    the rules of the House, in that they appropriate funds without an 
    authorization.
        A misunderstanding concerning the point of order has occurred 
    because of a change in the law that took place in 1981, the Omnibus 
    Reconciliation Act.

[[Page 5418]]

    Prior to the passage of the act, the mint operated under a 
    permanent authorization and needed only to come before the 
    Appropriations Committee to obtain its funds.
        In 1981, however, the Congress changed that law so that the 
    mint had to first obtain a yearly authorization before obtaining an 
    appropriation. . . .
        The Chairman: The Chair desires to make a statement. The Chair 
    apologizes in advance to the Members for the length of the 
    statement.
        Earlier, during consideration of the bill in the Committee of 
    the Whole, the Chair overruled a point of order against the 
    paragraph appropriating funds for the Bureau of the Mint, salaries 
    and expenses, on page 5, lines 14 through 17. In argument on the 
    point of order, the manager of the bill cited provisions of law 
    establishing and delegating functions to the Bureau of the Mint, as 
    sufficient authority to authorize appropriations for annual 
    expenses and salaries. The Chair has since become aware that those 
    provisions of law have been repealed, and that the statutes 
    relating to the mint have been amended, first by the Omnibus 
    Reconciliation Act of 1981, then by the Omnibus Reconciliation Act 
    of 1982, and then by a complete recodification of title 31 of the 
    United States Code. No specific authorization of appropriations for 
    fiscal year 1984 has yet been enacted, but one has passed the House 
    (H.R. 2628).
        The Omnibus Reconciliation Act of 1981, Public Law 97-35, 
    provided in section 382 that the sentence in the Code (31 U.S.C. 
    369) which had been construed to provide a permanent authorization 
    of appropriations for the Bureau of the Mint be repealed, and 
    replaced that language with an authorization of appropriations for 
    fiscal year 1982 only. The report on that measure in the House 
    stated, on page 129, that by repealing the existing statutory 
    provision and by limiting the authorization to fiscal year 1982 
    only, it is the intent of the committee to repeal the permanent 
    authorization for the salaries and expenses of the Bureau of the 
    Mint. The joint explanatory statement of the conferees on the 
    Reconciliation Act reiterated that the House bill terminated the 
    permanent authorization for appropriations for salaries and 
    expenses of the Bureau of the Mint (page 717). The Omnibus 
    Reconciliation Act of 1982, Public Law 97-253, in section 202, 
    changed the 1982 authorization into a fiscal year 1983 
    authorization. Public Law 97-258 codified in its entirety title 31 
    of the United States Code, and carried the 1982 authorization in 
    section 5132 of title 31; all the old provisions of title 31 
    dealing with the mint, previously cited in argument on the point of 
    order, have been repealed. Public Law 97-452 modified the 
    codification to reflect the 1983 authorization carried in the 1982 
    Reconciliation Act. There remains no statutory language relating to 
    the mint which may be construed as a permanent authorization.
        The Chair recognizes that it is unusual for the Chair to 
    reverse a decision or ruling previously made, and it is the opinion 
    of the Chair that he should undertake such a course of action only 
    where new and substantial facts or circumstances, which were not 
    evident or stated in argument on a point of order, are subsequently 
    brought to his attention.

[[Page 5419]]

        In rare instances, the Chair has reversed a decision on his own 
    initiative; for example, the Chairman of the Committee of the Whole 
    in 1927, as cited in volume 8 of Cannon's Precedents section 3435, 
    held that a provision in a general appropriation bill constituted 
    legislation after reviewing a statute he was not previously aware 
    of when he had rendered a contrary decision.
        For the reasons stated, and in view of the unique and 
    compelling circumstances, the Chair holds that the language in the 
    bill on page 5, lines 14 through 17, appropriating funds for the 
    Bureau of the Mint, is unauthorized and, therefore, rules the 
    paragraph out of order.

    Parliamentarian's Note: The Chairman of the Committee of the Whole 
may in his discretion entertain (or initiate himself) a request for 
further argument on a point of order previously ruled upon, even where 
the paragraph has been passed unamended in the reading of the bill for 
amendment (and unanimous consent is not required),(16) where 
existing law not previously called to the Chair's attention would 
require the ruling to be reversed.
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16. See 8 Cannon's Precedents Sec. 3435.
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    As indicated by the Chair's reservations, such authority should be 
exercised in only the most compelling circumstances, such as where the 
state of the law has been completely altered and not made known to the 
Chair; it should not be exercised in order to further interpret laws 
already cited. Although the committee in the instant case had clearly 
met the burden of proof on the previous ruling, their position and 
statutory authority had not been communicated to the Parliamentarian or 
Chair before that ruling, and the Chair had been forced to rule without 
the full benefit of arguments on the point of order.