[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[B. Appropriations for Unauthorized Purposes]
[Â§ 10. Evidence of Authorization]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 5419-5433]
 
                               CHAPTER 26
 
    Unauthorized Appropriations; Legislation on Appropriation Bills
 
              B. APPROPRIATIONS FOR UNAUTHORIZED PURPOSES
 
Sec. 10 Evidence of Authorization

Citation of Statute

Sec. 10.1 Language in a general appropriation bill permitting funds in 
    that paragraph to remain available until expended was held in order 
    upon citation by the Committee on Appropriations of statutory 
    authority therefor.

    On Nov. 30, 1973,(17) during consideration in the 
Committee of the Whole of a supplemental appropriation bill (H.R. 
11576), a point of order was raised against the following provision and 
proceedings ensued as indicated below:
---------------------------------------------------------------------------
17. 119 Cong. Rec. 38845, 93d Cong. 1st Sess.

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[[Page 5420]]

                            Territorial Affairs

                   trust territory of the pacific islands

        For an additional amount for ``Trust Territory of the Pacific 
    Islands'', $8,410,000, to remain available until expended.
        Mr. [John D.] Dingell [of Michigan]: Mr. Chairman, I raise a 
    point of order to the language at page 3, line 4, beginning with 
    the word ``to,'' and reading as follows: ``to remain available 
    until expended.''
        I cite as authority for this, Mr. Chairman, rule XXI, clause 2, 
    constituting legislation in an appropriation bill and exceeding the 
    authority of the Committee on Appropriations, essentially 
    appropriating for a period beyond 1 year. . . .
        Mr. [George H.] Mahon [of Texas]: Mr. Chairman, the basic law 
    states that the Congress is authorized to make the funds available 
    as expended. This authorization is amply fortified in law. The 
    point of order is not valid, in the judgment of the Committee on 
    Appropriations.
        The Chairman: (18) Does the gentlewoman from 
    Washington (Mrs. Hansen) or the gentleman from Texas (Mr. Mahon) 
    have a copy of the authorization referred to that could be sent to 
    the desk?
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18. James G. O'Hara (Mich.).
---------------------------------------------------------------------------

        Mr. Mahon: Mr. Chairman, we have the citation here. It is 68 
    Stat. 330. . . .
        The Chairman: The Chair is prepared to rule.
        The Chair has examined the statute in question and finds that 
    it does indeed authorize appropriations providing funds for the 
    trust territories and specifies that they may remain available 
    until expended.
        The Chair, therefore, overrules the point of order.

Letter From Executive Officer

Sec. 10.2 In ascertaining whether existing law has been complied with 
    by executive officials in order to justify an appropriation (a 
    condition stated in the law), the Chair has held that a letter 
    written by an executive officer charged with the duty of furthering 
    a certain program was sufficient documentary evidence of 
    authorization of an appropriation in the manner prescribed by law.

    On May 17, 1937,(19) the Committee of the Whole was 
considering H.R. 6958, an Interior Department appropriation bill. At 
one point the Clerk read as follows, and proceedings ensued as 
indicated below:
---------------------------------------------------------------------------
19. 81 Cong. Rec. 4680, 4681, 75th Cong. 1st Sess.
---------------------------------------------------------------------------

        Provo River project, Utah, $750,000.
        Mr. [John] Taber [of New York]: Mr. Chairman, I make the point 
    of order against this paragraph that the appropriation is not 
    authorized by law. No construction has been started and no law is 
    in force authorizing the

[[Page 5421]]

    project. I call the attention of the Chairman to the latter part of 
    page 245 of the record of the hearings and to the following words:

            Construction program through fiscal year 1937. The starting 
        of actual construction work has been delayed by the necessity 
        of organization and negotiating repayment and water-
        subscription contracts.
            It is expected that bids will be received for the 
        construction--

        And so forth. This means there has been no actual construction 
    on this job and that it has not been authorized by specific 
    legislation. Therefore, I make the point of order against it that 
    it is legislation on an appropriation bill, and has not been 
    authorized by law.
        The Chairman: (20) The Chair invites attention to 
    the provision of the United States Code in title 43, section 413, 
    which reads as follows:
---------------------------------------------------------------------------
20. Jere Cooper (Tenn.).
---------------------------------------------------------------------------

            Approval of projects by President. No irrigation project 
        shall be begun unless and until the same shall have been 
        recommended by the Secretary of the Interior and approved by 
        direct order of the President of the United States.

        This is the act of June 25, 1910, commonly referred to as the 
    Reclamation Act.
        The Chair would like to inquire of the gentleman from Utah, or 
    someone else in position to give the information, whether or not 
    this item against which a point of order has been made has been 
    recommended by the Secretary of the Interior and approved by the 
    direct order of the President of the United States, and the Chair 
    would like to have some evidence on this point.
        Mr. [J. W.] Robinson of Utah: Mr. Chairman, I hold in my hand, 
    in answer to the statement of the Chair, a letter----
        Mr. [James G.] Scrugham [of Nevada]: Mr. Chairman, I offer such 
    documentary evidence.
        Mr. Robinson of Utah: I am submitting, Mr. Chairman, a letter 
    from Secretary Ickes, together with the approval of this project by 
    the President.
        Mr. [Cassius C.] Dowell [of Iowa]: Mr. Chairman, if documentary 
    evidence is offered for the purpose of showing compliance with the 
    law, it seems to me it should be presented to the committee.
        The Chairman: The Chair has in mind referring to the document 
    in passing upon the question here presented.
        The Chair feels he has examined sufficient evidence to supply 
    the information requested. . . .
        The Chair is prepared to rule.
        There has been presented to the Chair a letter from the 
    Secretary of the Interior, under date of November 13, 1935, which 
    consists of three pages, and the Chair will only refer to the 
    pertinent part of the letter which applies to the particular item 
    under consideration. The letter is addressed to the President of 
    the United States by the Secretary of the Interior. Among other 
    things, it is stated in the letter:

            I recommend that the Provo River project, consisting of the 
        Deer Creek division and the Utah Lake division, be approved and 
        that authority be issued to this Department to proceed with the 
        work and to make contracts and to take any necessary action for 
        the construction of said projects or either division thereof.

[[Page 5422]]

            Sincerely yours,
                                            Harold L. Ickes,
                                        Secretary of the Interior.

        There appears on this letter, ``Approved November 16, 1935, 
    Franklin D. Roosevelt, President.''
        Therefore the Chair is of the opinion that the evidence is 
    sufficient to meet the requirements in that this item in the 
    pending bill has been recommended by the Secretary of the Interior 
    and approved by the President of the United States, in accordance 
    with the provisions of existing law, as cited by the Chair, 
    appearing in section 413, title 43, of the United States Code. The 
    Chair therefore overrules the point of order.

Letter from Official Given Authority in Law

Sec. 610.3 In deciding whether an appropriation for housing and 
    technical facilities at an Air Corps intermediate station in 
    Connellsville, Pennsylvania, was authorized by law, the Chair 
    accepted as evidence a letter from the Chief of Staff of the Army; 
    and the committee fulfilled its burden of showing authorization 
    where the Secretary's letter stated that the procedure for 
    authorization had been complied with.

    On Mar. 28, 1938,(1) the Committee of the Whole was 
considering H.R. 9995, a military appropriation bill. A point of order 
was raised against the following paragraph in the bill:
---------------------------------------------------------------------------
 1. 83 Cong. Rec. 4244, 4245, 75th Cong. 3d Sess.
---------------------------------------------------------------------------

        For construction and installation of buildings . . . including 
    interior facilities . . . to remain available until expended and to 
    be applied as follows: For . . . housing and technical facilities, 
    Air Corps intermediate station, Connellsville, Pa., $50,000. . . .
        Mr. [John] Taber [of New York]: Mr. Chairman, I make the point 
    of order against the language, beginning with the word ``housing,'' 
    in line 24, page 26, and ending with the figures ``$50,000'' on 
    page 27, line 1:

            Housing and technical facilities, Air Corps intermediate 
        station, Connellsville, Pa., $50,000.

        I do this because it is not authorized by law. . . .
        The Chairman: (2) The Chair is ready to rule.
---------------------------------------------------------------------------
 2. Luther A. Johnson (Tex.).
---------------------------------------------------------------------------

        The act of August 12, 1936, confers upon the Secretary of War 
    authority to establish intermediate stations in compliance with the 
    terms of that act. The chairman of the subcommittee has furnished 
    the Chair with a letter dated March 22, 1938, from the War 
    Department advising that the Secretary of War under this authority 
    has designated Connellsville, Pa., as an intermediate station and 
    that it had been so designated by the Secretary of War.
        The gentleman from New York makes the point of order that 
    before the Secretary of War could make such a designation he must 
    comply with certain provisions of the act. The Chair

[[Page 5423]]

    would not be warranted in assuming that the Secretary of War 
    disregarded the provisions of the law. Since the Secretary of War 
    has made the designation, the Chair thinks it is proper to assume 
    that the Secretary has carried out the provisions of the law giving 
    him that authority; in other words, the Chair does not think that 
    it is necessary for the Chair to assume that the Secretary of War 
    would violate the act. The proper assumption would be that he had 
    complied with the law.
        Mr. Taber: Mr. Chairman, it seems to me that the burden is upon 
    the gentleman from Pennsylvania, inserting this item in the bill, 
    to show that the Secretary of War has legally made a designation of 
    this place as an intermediate air station in accordance with the 
    provisions of law and that he has met the four requirements that 
    are set forth in the statute. I do not think a mere letter from the 
    Secretary of War stating that he has made some designation would 
    meet the situation unless the Secretary of War set forth that he 
    has determined that this airport complies with the four 
    requirements outlined in the statute. Has the Chair a copy of the 
    statute available?
        The Chairman: The Chair has a copy of the act and is familiar 
    with the act.
        Mr. Taber: It would seem to me that the Secretary of War must 
    make a finding with reference to these four requirements 
    specifically and that evidence of it must accompany the request for 
    an authorization.
        Mr. [J. Buell] Snyder of Pennsylvania: Mr. Chairman, will the 
    gentleman yield?
        Mr. Taber: I yield.
        Mr. Snyder of Pennsylvania: He did make that finding with 
    reference to the four specific points.
        Mr. Taber: But the evidence is not here to support that.
        Mr. Snyder of Pennsylvania: The letter should be sufficient 
    evidence.
        The Chairman: The Chair takes it that the evidence is in the 
    War Department files. The Chair does not think it should be 
    necessary to require that that evidence be sent here. When the 
    House is advised that the Secretary of War has followed the act and 
    has made the designation, the Chair thinks it would be unnecessary 
    to require that the evidence be set forth. In the Chair's opinion 
    the Chair has the right to assume that the Secretary of War has 
    followed the provisions of law and that the records of the War 
    Department would so show.
        The point of order is overruled.

Press Reports Relating to Project

Sec. 10.4 Statements contained in the Official Information Digest 
    issued by the Office of Government Reports, to the effect that 
    Engineer Corps troops were on their way to a specified construction 
    project were held insufficient evidence that the project was 
    authorized, or that it was a ``work in progress,'' for which an 
    appropriation could be made.

[[Page 5424]]

    On Mar. 10, 1942,(3) the Committee of the Whole was 
considering H.R. 6736, a bill concerned with civil functions of the War 
Department. The following proceedings took place:
---------------------------------------------------------------------------
 3. 88 Cong. Rec. 2223, 2224, 77th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Francis H.] Case of South Dakota. Mr. Chairman, I offer an 
    amendment, which is at the desk.
        The Clerk read as follows:

            Amendment offered by Mr. Case of South Dakota: On page 4, 
        after line 10, insert ``Alaskan Highway: For prosecuting the 
        construction of a connecting highway from the States to and 
        into Alaska, $5,000,000.''. . .

        Mr. [John] Taber [of New York]: Mr. Chairman, I make the point 
    of order against the amendment that it is not authorized by law. . 
    . .
        Mr. Case of South Dakota: . . . Even if this project were one 
    which required authorization by law the rules of the House provide 
    that where a project is under construction and an appropriation is 
    made for continuing construction, the appropriation is in order and 
    is not subject to a point of order.
        I call the Chair's attention to an Associated Press dispatch . 
    . . in which this statement was made:

            An advance crew of American engineers is at Dawson Creek, 
        and dozens of freight cars carrying construction equipment are 
        expected to pass through Alberta in the next few weeks.

        I also call attention to a statement on page 4 of the Offical 
    Information Digest issued by the Office of Government Reports on 
    March 5, in which it is stated that War Secretary Stimson announced 
    that Engineer Corps troops were already on their way to work on 
    roads for this Alaskan highway. In other words, construction has 
    already begun. . . .
        The Chairman: (4) The Chair is ready to rule.
---------------------------------------------------------------------------
 4. Alfred L. Bulwinkle (N.C.).
---------------------------------------------------------------------------

        The mere fact that press reports show that certain groups are 
    in Alaska does not constitute in the mind of the Chair that there 
    is really a working performance going on in this project at all.
        The Chair, therefore, sustains the point of order.
        Mr. Case of South Dakota: Mr. Chairman, a parliamentary 
    inquiry.
        The Chairman: The gentleman will state it.
        Mr. Case of South Dakota: Did the Chair understand that I 
    quoted also from the Information Digest issued by the Office of 
    Government Reports?
        The Chairman: The mere information does not constitute an 
    authorization, or does not show the work has actually begun, and is 
    in course of construction.

Public Knowledge

Sec. 10.5 The law authorizing an appropriation, conditioned upon 
    submission of a balanced budget, was held to have been complied 
    with, on the basis of public knowledge that the fiscal 1957

[[Page 5425]]

    budget submitted by the President (and printed as a House document) 
    was balanced.

    On Mar. 20, 1956,(5) the Committee of the Whole was 
considering H.R. 10004, a supplemental appropriation bill. The 
following proceedings took place:
---------------------------------------------------------------------------
 5. 102 Cong. Rec. 5200, 84th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [George H.] Mahon [of Texas]: Mr. Chairman, I offer an 
    amendment.

        The Clerk read as follows:

            Amendment offered by Mr. Mahon: On page 16, line 9, insert 
        the following:

            ``National Park Service: Construction: For an additional 
        amount for construction $3 million.''. . .

        Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make the point of 
    order that the wording of the amendment does not comply with Public 
    Law 361 of the 83d Congress (requiring a balanced budget as a 
    condition to the appropriation).
        The Chairman: (6) The Chair is ready to rule.
---------------------------------------------------------------------------
 6. Francis E. Walter (Pa.).
---------------------------------------------------------------------------

        It is a matter of public knowledge that the budget submitted by 
    the President is a balanced budget; therefore, the Chair feels that 
    subsection 2(b) of section 4, Public Law 361, has been complied 
    with.
        The point of order is overruled.

    Parliamentarian's Note: Public Law No. 83-361, Sec. 4, stated in 
part:

        Sec. 4(a) There is hereby authorized to be appropriated not to 
    exceed $5,000,000 to complete (certain described) elements of the 
    (Jefferson National Expansion) Memorial as authorized by this Act. 
    . . .
        (b) The authorization for an appropriation contained in 
    subsection (a) shall not be effective until such time as
        (1) the receipts of the Government for the preceding fiscal 
    year have exceeded the expenditures of the Government for such 
    year, as determined by the Director of the Bureau of the Budget; or
        (2) the budget submitted to the Congress by the President . . . 
    reveals that the estimated receipts of the Government for the 
    fiscal year . . . are in excess of the estimated expenditures of 
    the Government for such fiscal year.

Item Carried in Past Appropriation Bills

Sec. 10.6 The fact that an item has been carried in appropriation bills 
    for many years does not preclude the point of order that it is 
    legislation on an appropriation bill.

    On Mar. 24, 1939,(7) during consideration in the 
Committee of the Whole of the Agriculture Department appropriation bill 
(H.R. 5269), the following proceedings took place:
---------------------------------------------------------------------------
 7. 84 Cong. Rec. 3272, 76th Cong. 1st Sess. See also 96 Cong. Rec. 
        5799, 81st Cong. 2d Sess., Apr. 26, 1950 (proceedings relating 
        to H.R. 7786).
---------------------------------------------------------------------------

        The Clerk read as follows:

[[Page 5426]]

            Mexican fruitfly control: For the control and prevention of 
        spread of the Mexican fruitfly, including necessary surveys and 
        control operations in Mexico in cooperation with the Mexican 
        Government or local Mexican authorities, $160,460.

        Mr. [J. William] Ditter [of Pennsylvania]: Mr. Chairman, I make 
    the point of order that the paragraph on page 54 which the Clerk 
    has just read, being lines 1 to 4, inclusive, is legislation on an 
    appropriation bill and not authorized by law. . . .
        The Chairman: (8) Can the gentleman from Missouri, 
    the chairman of the subcommittee, cite any legislative enactment 
    authorizing this provision?
---------------------------------------------------------------------------
 8. Fritz G. Lanham (Tex.).
---------------------------------------------------------------------------

        Mr. [Clarence] Cannon of Missouri: Mr. Chairman, this provision 
    has been carried in the bill for many years, but there is no law 
    under which an appropriation is authorized for carrying on these 
    activities.
        The Chairman: Of course, the provision was retained in previous 
    bills by reason of the fact that no point of order was made against 
    it.
        If the gentleman has no citation of law authorizing this 
    provision in the bill, the Chair sustains the point of order.

Executive Assurance That Authorization Formula Was Followed

Sec. 10.7 Where the law authorizing funds for the Postal Service 
    required the calculation of the appropriation to be the difference 
    between revenues received under certain rates and revenues which 
    would have been received under certain other conditions, a lump-sum 
    appropriation was held to be authorized as required by Rule XXI 
    clause 2 upon assurance from the Committee on Appropriations that 
    that amount was based upon estimates properly submitted pursuant to 
    that law.

    On Nov. 30, 1973,(9) during consideration in the 
Committee of the Whole of a supplemental appropriation bill (H.R. 
11576), a point of order was raised against the following provision:
---------------------------------------------------------------------------
 9. 119 Cong. Rec. 38851-53, 93d Cong. 1st Sess.
---------------------------------------------------------------------------

        For an additional amount for ``Payment to the postal service 
    fund'', $110,000,000.
        Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of 
    order on the matter contained in chapter IX of the bill, H.R. 
    11576.
        The Chairman: (10) The gentleman will state his 
    point of order.
---------------------------------------------------------------------------
10. James G. O'Hara (Mich.).
---------------------------------------------------------------------------

        Mr. Gross: . . . Mr. Chairman, chapter IX of the bill proposes 
    to appropriate an additional amount for payment to the Postal 
    Service fund in the sum of $110,000,000, for which there is no 
    authorization in the law, and in clear violation of the House rule. 
    . . .
        Mr. [Tom] Steed [of Oklahoma]: . . . The purpose of the act on 
    the

[[Page 5427]]

    Postal Corporation is quite clear. It provides that the Congress 
    shall make appropriations to the Postal Corporation for two 
    purposes; one, 10 percent of the 1970 budget, the other, for 
    revenues foregone on certain classes of mail.
        When the budget came out this year, those two items totaled 
    $1,373,000,000. The committee, when it reported the bill in the 
    House and Congress approved the bill, carried these two items of 
    $1,373,000,000, but there was another matter that was involved, 
    because the legislative committees have not finished their work. 
    They have had to fund the Postal Corporation for the Government's 
    portion of contributions to the retirement fund for postal pay 
    raises. The House has passed the bill saying that the government 
    had to make these payments. The other body has not seen fit to take 
    any action. The retirement fund was in desperate circumstances, and 
    the committee, in its wisdom, biding time to wait for the 
    legislative committee to act, put in the original bill to transfer 
    out of this $1,373,000,000 to the retirement fund of $142 million. 
    The $110 million involved here is $32 million under the original 
    budget request based upon these two items provided in the act. The 
    revenue foregone is covered in section (c), paragraph 2401:

            There are authorized to be appropriated to the Postal 
        Service each year a sum determined by the Postal Service to be 
        equal to the difference between the revenues the Postal Service 
        would have received if sections 3217, 3403-3405, and 3626 of 
        this title and the Federal Voting Assistance Act of 1955 had 
        not been enacted and the estimated revenues to be received on 
        mail carried under such sections and Act.

        What we are faced with here is going back to the beginning. We 
    are actually $32 million under what the original estimates were, 
    and also this is perfectly within the law and perfectly within the 
    original budget estimates of the committee, and it is under the 
    amount that they originally set, and I do not think there is any 
    way on earth that we can begin to say that this could be subject to 
    a point of order. . . .
        The Chairman: The Chair is prepared to rule.
        Section 2401(b)(1) authorizes certain sums for appropriations, 
    as the gentleman from Oklahoma points out, and the gentleman from 
    Iowa has recognized that with respect to this matter further sums 
    are authorized to be appropriated under section 2401(c) which 
    authorizes the appropriation ``to the Postal Service each year of a 
    sum determined by the Postal Service to be equal to the difference 
    between the revenues the Postal Service would have received'' under 
    certain circumstances and ``estimated revenues to be received on 
    mail carried under such sections and act.''
        The provision carried in the bill is to cover the estimate that 
    was transmitted by the Postal Service.
        The gentleman from Iowa makes the point that the estimate 
    transmitted by the Postal Service was not properly arrived at.
        The Chair does not believe it is his responsibility or 
    privilege to go beyond the provisions printed in the bill and the 
    authorizing statute. As far as a reading of the bill and the 
    authorizing statute reveals to the Chair, the appropriation is 
    authorized, and the Chair overrules the point of order.

[[Page 5428]]

Citation of Generic Law

Sec. 10.8 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.

    On June 8, 1978,(11) during consideration in the 
Committee of the Whole of the Departments of Labor and Health, 
Education, and Welfare appropriation bill (H.R. 12929), a point of 
order was overruled against the following provision:
---------------------------------------------------------------------------
11. 124 Cong. Rec. 16778, 95th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

                               student assistance

            For carrying out subparts 1 ($3,373,100,000), 2 
        ($340,100,000), and 3 ($86,750,000) of part A, and parts C 
        ($520,000,000) and E ($328,900,000) of Title IV of the Higher 
        Education Act, and, to the extent not otherwise provided, the 
        General Education Provisions Act, $4,675,750,000, of which 
        $4,651,350,000 shall remain available until September 30, 1980: 
        Provided, That amounts appropriated for basic opportunity 
        grants shall be available first to meet any insufficiencies in 
        entitlements resulting from the payment schedule for basic 
        opportunity grants published by the Commissioner of Education 
        during the prior fiscal year: Provided further, That pursuant 
        to section 411(b)(4)(A) of the Higher Education Act, amounts 
        appropriated herein for basic opportunity grants which exceed 
        the amounts required to meet the payment schedule published for 
        any fiscal year by 15 per centum or less shall be carried 
        forward and merged with amounts appropriated the next fiscal 
        year.

        Mr. [R. Lawrence] Coughlin [of Pennsylvania]: Mr. Chairman, I 
    have a point of order. . . .
        [D]uring the discussion of the rule on this bill, I asked if 
    there was money in this portion of the bill for the so-called 
    Middle Income Student Assistance Act. The distinguished chairman of 
    the subcommittee informed me that there indeed was money in the 
    bill for that act.
        I indicated at that time that the Middle Income Student 
    Assistance Act was not authorized. In fact, the House specifically 
    refused to consider that act and has subsequently passed the 
    Tuition Tax Credit Act. I was informed that was not necessary 
    because this could be done under current law.

        Mr. Chairman, the Middle Income Student Assistance Act is not 
    current law. If the Middle Income Student Assistance Act is current 
    law, why did the President propose it as a new program?
        Mr. Chairman, the committee report says that this appropriation 
    is based on the House version of the Middle Income Student 
    Assistance Act and will expand student aid for middle income 
    students. It will not expand aid for

[[Page 5429]]

    middle income students without increasing the middle income student 
    limitation, and there is no authorization for that.
        Mr. Chairman, I would like to know whether the Middle Income 
    Student Assistance Act is or is not in existence and whether it is 
    or is not necessary, and I make the point of order that the $1.4 
    billion in this section that is for expanded aid to middle income 
    students is not authorized. . . .
        Mr. [David R.] Obey [of Wisconsin]: . . . Mr. Chairman, let me 
    just point out that the Middle Income Student Assistance Act, which 
    has not yet passed, simply gives direction and makes certain 
    changes in an already existing program. The bill before us today 
    funds programs which are in existing law, and the gentleman's point 
    of order is, therefore, not well taken.
        The Chairman: (12) The Chair is ready to rule.
---------------------------------------------------------------------------
12. Richard Bolling (Mo.).
---------------------------------------------------------------------------

        The gentleman stated quite accurately that the report of the 
    committee on this appropriation bill indicated that the Middle 
    Income Student Assistance Act H.R. 11274 had not become law. It 
    also says, and I quote, on page 74:

            Even though this legislation is still pending, 
        appropriations can be made under existing authority to expand 
        student aid for middle income students, as expressed in the 
        bill and accompanying report.

        The Chair has had an opportunity to examine the report on H.R. 
    11274 and the basic law. This is Public Law 94-482, 94th Congress, 
    the Education Amendment of 1976.
        Section 121, Part D, Student Assistance Basic Educational 
    Opportunity Grants, extends the authorizations of the basic act to 
    September 30, 1979.
        Considering all of the authorizations for fiscal 1979 under 
    part D--Student Assistance--together, it would appear that the 
    funds in the paragraph in question are authorized.
        Therefore, the Chair believes that the Committee is correct in 
    its view that there is extant authorization justifying this 
    appropriation, and he overrules the point of order.

Reorganization Plan

Sec. 10.9 While an Executive order creating a federal office cannot, 
    standing alone, be considered authority in law for appropriations 
    for that office, a reorganization plan from which that office 
    derives may be cited by the Committee on Appropriations to support 
    such an appropriation.

    On June 21, 1974,(13) during consideration in the 
Committee of the Whole of the Department of Agriculture and environment 
and consumer protection appropriation bill (H.R. 15472), a point of 
order was overruled as indicated below:
---------------------------------------------------------------------------
13. 120 Cong. Rec. 20595, 20596, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Robert E.] Bauman [of Maryland]: Mr. Chairman, I have a 
    point of order pertaining to title IV on page 45, lines 9 through 
    14, under the title ``Consumer Programs, Department of

[[Page 5430]]

    Health, Education, and Welfare, Office of Consumer Affairs'' on the 
    ground that it violates rule XXI, clause 2, in that there is no 
    existing statutory authority for this office, and I cite as 
    authority the fact that last year this same point of order was made 
    and the Chair ruled that there was no existing authority. . . .
        Mr. [Jamie L.] Whitten [of Mississippi]: . . . It is pointed 
    out on page 967 of the hearings that we had submitted the report 
    from the Department of HEW, dated March 21, 1974, in which they 
    cite:

            Reorganization Plan No. 1 of 1953 provides in pertinent 
        part: ``In the interest of economy and efficiency the Secretary 
        may from time to time establish central . . . services and 
        activities common to the several agencies of the Department . . 
        .'' (section 7).

        Later this report says:

            The office of Consumer Affairs, they include policy 
        guidance responsibility respecting the relationship of all of 
        the statutes of the Department to the consumer interest.

        So this agency is in line with the Reorganization Plan No. 1 of 
    1953 which was approved and authorized by the Congress, and for 
    that reason it is within the authorization of the law.
        The Chairman: (14) Could the gentleman from 
    Mississippi give us the statutory citation for this office?
---------------------------------------------------------------------------
14. Sam Gibbons (Fla.).
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        Mr. Whitten: It is Reorganization Plan No. 1 of 1953.
        Mr. [John D.] Dingell [of Michigan]: Mr. Chairman, I would 
    point out that the Appropriations Committee only has authority, and 
    I would say my good friend, the gentleman from Mississippi, is one 
    of the most wise and able Members of this body and he is well aware 
    of the fact that the reorganization plans are not statutory in 
    effect and do not confer the authority on the executive branch to 
    procure and expend appropriated funds. They do not constitute an 
    authorization and, therefore, even though there is a reorganization 
    plan in being it does not constitute the basis upon which the 
    committee may predicate appropriations.
        The Chairman: Last year when this same point was raised, the 
    authority that was cited was an Executive order. The Chair will 
    state that a reorganization plan--which was not cited as authority 
    on June 15, 1973--once it has become effective, has the effect of 
    law and of statute and, therefore, the point of order would have to 
    be overruled.
        Mr. Dingell: Mr. Chairman, if the Chair will permit me further, 
    the gentleman does not cite the Reorganization Act. He recites a 
    reorganization plan which is very different from a Reorganization 
    Act.
        The Chairman: The Chair understands that if the reorganization 
    plan has become effective, if it was not rejected by the Congress 
    within the time provided, it has the effect of a statute. . . .
        The Chair overrules the point of order. The Chair has examined 
    the law and is citing from title V, United States Code, section 
    906, which prescribes the procedure by which a reorganization plan 
    does become effective. It is clear to the Chair that Reorganization 
    Plan No. 1 of 1953 has the effect of law, and therefore, the point 
    of order is overruled.

[[Page 5431]]

Executive Order

Sec. 10.10 Pursuant to Rule XXI clause 2 and 36 USC Sec. 673, 
    commissions and councils must have been established by law--and not 
    merely by Executive order--prior to the expenditure of federal 
    funds therefor.

    On June 25, 1974,(15) during consideration in the 
Committee of the Whole of the Department of Treasury, Postal Service, 
and Executive Office appropriation bill (H.R. 15544), a point of order 
was sustained as indicated below:
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15. 120 Cong. Rec. 21036, 21037, 93d Cong. 2d Sess.
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        The Chairman: (16) The Clerk will read.
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16. B. F. Sisk (Calif.).
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        The Clerk read as follows:

            For necessary expenses, including services as authorized by 
        5 U.S.C. 3109 . . . not to exceed $2,500 for official reception 
        and representation expenses; and advances or reimbursements to 
        applicable funds of the Commission and the Federal Bureau of 
        Investigation for expenses incurred under Executive Order 10422 
        of January 9, 1953, as amended; $90,000,000 together with not 
        to exceed $18,698,000 for current fiscal year administrative 
        expenses for the retirement and insurance programs to be 
        transferred from the appropriate trust funds of the Commission 
        in amounts determined by the Commission without regard to other 
        statutes: Provided, That the provisions of this appropriation 
        shall not affect the authority to use applicable trust funds 
        for administrative expenses of effecting statutory annuity 
        adjustments. . . .

        Mr. [Charles A.] Vanik [of Ohio]: Mr. Chairman, I make a point 
    of order on the language beginning at line 12 on page 12 of this 
    bill with the figures ``$90,000,000'' through line 20 ending in the 
    word ``adjustments.''. . .
        Mr. Chairman, it is my understanding that there is in fact no 
    authorization for the President's Commission on Personnel 
    interchange for which $353,000 is herein requested. It was created 
    solely by Executive Order 11451 on January 19, 1969.
        This House rule is supported in this regard by title 36 of the 
    United States Code, section 673, which also indicates that no funds 
    should be expended by this body without authorization. The full 
    section of the law reads as follows:

                             Title 36, Section 673

            No part of the public monies, or of any appropriation made 
        by Congress, shall be used for the payment of compensation or 
        expenses of any commission, council or other similar body, or 
        any members thereof, or for expenses in connection with any 
        work or the results of any work or action of commission, 
        council, board, or similar body, unless the creation of the 
        same shall be or shall have been authorized by law; nor shall 
        there be employed any detail hereafter or heretofore made or 
        otherwise personal services from any Executive Department or 
        other Government establishment in connection with any such 
        commission, council, board, or similar body. . . .

        The Chairman: Does the gentleman from Oklahoma desire to be 
    heard on the point of order?

[[Page 5432]]

        Mr. [Tom] Steed [of Oklahoma]: Mr. Chairman, we concede the 
    point of order.
        The Chairman: The gentleman from Oklahoma (Mr. Steed) concedes 
    the point of order.
        The point of order is sustained.

Requirement of Annual Authorization Superceding Organic Law

Sec. 10.11 Pursuant to law (22 USC Sec. 2680(a)(1)), no funds shall be 
    available to the Department of State for obligation or expenditure 
    unless the appropriation thereof has been authorized by law enacted 
    after February 1972 (thus requiring specific subsequently enacted 
    authorizations for both the direct operations of that Department 
    and related functions delegated to it by laws enacted prior to that 
    date, and not permitting appropriations under Rule XXI clause 2 to 
    be authorized by the ``organic statute'' or other laws earlier 
    authorizing appropriations for related activities); accordingly 
    several appropriations not specifically authorized as required were 
    conceded to be subject to a point of order.

    On June 14, 1978,(17) appropriations in a general 
appropriation bill for the Department of State, including salaries and 
expenses, representation allowances, expenses under the Foreign 
Services Buildings Act, special foreign currency program, emergencies 
in the diplomatic and consular service, retirement and disability fund, 
international conferences, international peacekeeping activities, 
missions to international organizations, international conferences and 
contingencies, international trade negotiations, international 
commissions, construction, and general provisions, no authorizations 
for such appropriations having been enacted for the fiscal year in 
question as specifically required by law, were conceded to be 
unauthorized and were ruled out as in violation of Rule XXI clause 2. 
The proceedings are discussed further in Sec. 17.21, infra. See also 
Sec. 17.19, infra, discussing unauthorized funds for the Board for 
International Broadcasting. The Board, having been established 
independently of the Department of State, was not subject to the 
provisions of 22 USC Sec. 2680(a).
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17. 124 Cong. Rec. 17616, 17617, 17620, 95th Cong. 2d Sess.
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    Parliamentarian's Note: Similarly, pursuant to law (Public Law

[[Page 5433]]

No. 94-503, Sec. 204) all appropriations for the Department of Justice 
and related agencies and bureaus are deemed unauthorized for fiscal 
1979 and subsequent fiscal years unless specifically authorized for 
each fiscal year, and the creation of any subdivision in that 
department or the authorization of any activity therein, absent 
language specifically authorizing appropriations for a fiscal year, is 
not deemed sufficient authorization. Accordingly, on June 14, 
1978,(18) appropriations for the Department of Justice and 
related agencies for fiscal 1979 were conceded to be unauthorized 
(except for certain agencies for which appropriations had been 
authorized by separate law).
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18. 124 Cong. Rec. 17622-24, 95th Cong. 2d Sess.
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