[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[C. Provisions as "Changing Existing Law," Generally]
[Â§ 22. In General; Burden of Proof]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 5591-5626]
 
                               CHAPTER 26
 
    Unauthorized Appropriations; Legislation on Appropriation Bills
 
        C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
 
Sec. 22. In General; Burden of Proof


    The sections that follow discuss application of the rule 
prohibiting provisions ``changing existing law'' in general 
appropriation bills. The rule itself, and the broad qualifications on 
its use, are discussed in detail at the beginning of this 
chapter.(10)
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10. See Sec. 1, supra.
            See supplements to this edition as they appear for 
        discussion of recently adopted rules, including the requirement 
        that the Committee on Appropriations include, in its reports on 
        general appropriation bills, a statement describing the effect 
        of any provision changing the application of existing law.
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    By way of contrast, some rulings which belong under part F of this 
chapter, ``Permissible Limitations on Use of Funds,'' are carried in 
parts C, D, and E, which discuss provisions ``changing existing law,'' 
to permit the reader to better understand the subtle distinctions 
between these two lines of precedent.
    As noted in prior sections of this chapter, clause 2 of Rule XXI 
proscribes both (1) appropriations not authorized by law, and (2) 
provisions changing existing law. Some rulings interrelate these two 
separate proscriptions more than is technically necessary, and this 
chapter is intended, in part, to place the proper emphasis on the most 
appropriate portion of Rule XXI clause 2 relied upon by the Chair in 
its ruling.                          -------------------

Availability of Appropriation Contingent on Further Legislative Action

Sec. 22.1 Language in an appropriation bill changing existing law by 
    imposing a new committee approval requirement for the availability 
    of funds is legislation and not in order.

    On June 29, 1959,(11) during consideration in the 
Committee of the Whole of a supplemental appropriation bill (H.R. 
7978), a point of order was raised against the following provision:
---------------------------------------------------------------------------
11. 105 Cong. Rec. 12125, 86th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            For contractual research, development, operations, 
        technical services, repairs, alterations, and minor 
        construction, and for supplies, materials, and equipment 
        necessary for the conduct and support of aero

[[Page 5592]]

        nautical and space research and development activities of the 
        National Aeronautics and Space Administration, including not to 
        exceed $5,000 for representation allowances overseas and 
        official entertainment expenses, to be expended upon the 
        approval or authority of the Administrator; not to exceed $500 
        for newspapers and periodicals; and purchase of thirty-two 
        passenger motor vehicles, of which nineteen shall be for 
        replacement only; $300,000,000, to remain available until 
        expended: Provided, That this appropriation shall also be 
        available for other items of a capital nature only after such 
        items in excess of $250,000 shall first receive the approval in 
        writing of the Committee on Science and Astronautics of the 
        House of Representatives and the Committee on Aeronautical and 
        Space Sciences of the Senate: Provided further, That no part of 
        this appropriation shall be available for payment of salaries 
        of National Aeronautics and Space Administration personnel.

        Mr. [John] Taber [of New York]: Mr. Chairman, a point of order.
        The Chairman: (12) The gentleman will state it.
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12. Paul J. Kilday (Tex.).
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        Mr. Taber: I make the point of order against the language on 
    page 4, lines 16 to 22, inclusive, beginning with the word, 
    ``Provided'' and ending with the word ``Senate'' on the ground that 
    it is legislation on an appropriation bill and requires additional 
    duties.
        The Chairman: Does the gentleman from Texas [Mr. Thomas] desire 
    to be heard on the point of order?
        Mr. [Albert] Thomas: Mr. Chairman, unquestionably the point of 
    order is good. We were merely trying to straighten out some 
    language in that Act, and I send an amendment to the Clerk's desk.
        The Chairman: The gentleman from Texas concedes the point of 
    order, and the Chair sustains the point of order.

Extending Availability of Funds Beyond That Specified in Existing Law

Sec. 22.2 Language in an appropriation bill making an appropriation for 
    a census of agriculture available beyond the time for which it was 
    originally authorized was held to be legislation on an 
    appropriation bill and not in order.

    On Dec. 7, 1944,(13) the Committee of the Whole was 
considering H.R. 5587, a supplemental appropriation. A point of order 
was raised against a paragraph of the bill providing for a census of 
agriculture:
---------------------------------------------------------------------------
13. 90 Cong. Rec. 8995, 8996, 78th Cong. 2d Sess.
---------------------------------------------------------------------------

        Census of agriculture: For an additional amount for census of 
    agriculture, including the objects specified under this head in the 
    Department of Commerce Appropriation Act, 1945, $5,500,000, to 
    remain available until December 31, 1946.
        Mr. [Frank B.] Keefe [of Wisconsin]: Mr. Chairman, I make the 
    point of order against the paragraph and call attention to the 
    language on page 23, line 3, ``$5,500,000 to remain available until 
    December 31, 1946,'' as not being authorized by law and being 
    legislation on an appropriation bill.

[[Page 5593]]

        The Chairman: (14) does the gentleman from 
    Pennsylvania desire to be heard on the point of order?
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14. Herbert C. Bonner (N.C.).
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        Mr. [J. Buell] Snyder [of Pennsylvania]: The title of the bill 
    provides for just what the gentleman states. This work is under 
    way, and this is just an additional amount to carry on.
        The Chairman: Does the gentleman from Pennsylvania hold that 
    this amount is authorized?.
        Mr. Snyder: I do, Mr. Chairman.
        The Chairman: Will the gentleman cite the authorization?.
        Mr. Snyder: The authorization is the Agricultural Appropriation 
    Act for the current fiscal year.
        The Chairman: Does the gentleman from Wisconsin further contend 
    that the amount is not authorized?.
        Mr. Keefe: I contend, Mr. Chairman, that the provision making 
    the amount available until December 31, 1946, makes it 
    objectionable, as it carries it beyond any authorization.
        The Chairman: Does the gentleman from Pennsylvania wish to be 
    heard further on the point of order?.
        Mr. Snyder: Nothing further, Mr. Chairman.
        The Chairman: The Chair sustains the point of order.

Amending Dates in Authorization Law

Sec. 22.3 To a paragraph of an appropriation bill making appropriations 
    for the United Nations Relief and Rehabilitation Administration, an 
    amendment seeking to extend the dates named in the proviso clause 
    of the first paragraph of the UNRRA Act for 90 days was held to be 
    legislation on an appropriation bill and not in order.

    On June 27, 1946,(15) during consideration in the 
Committee of the Whole of a deficiency appropriation bill (H.R. 6885), 
a point of order was raised against the following amendment:
---------------------------------------------------------------------------
15. 92 Cong. Rec. 7758, 79th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Emmet] O'Neal [of Kentucky]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. O'Neal: On page 4, line 14, after 
        ``1947'', insert ``Provided, That the dates named in the 
        proviso clause of the first paragraph of the United Nations 
        Relief and Rehabilitation Administration Participation Act, 
        1946, are each hereby extended for 90 days.''

        Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of 
    order against the amendment on the ground that it is legislation on 
    an appropriation bill not authorized by existing law.
        Mr. O'Neal: Mr. Chairman, I should like to be heard on the 
    point of order.
        The gentleman makes the point of order that it is legislation 
    on an appropriation bill. The amendment offered applies directly to 
    the legislation referred to in the same paragraph, the 
    Rehabilitation Administration Participation Act, 1946. The 
    provisions of

[[Page 5594]]

    that act are referred to in this paragraph, and the amendment 
    affects one of the parts of the Participation Act. It seems clear 
    to me, since it touches on the very matter referred to in the 
    paragraph, that it is certainly not legislation which is not in 
    conformity with the rest of the paragraph.
        Mr. Taber: The law now provides a period within which certain 
    things may be done. This changes the law so as to make that period 
    90 days longer. There is nothing in the bill at the present time to 
    which this amendment is germane.
        The Chairman: (16) The Chair is ready to rule. In 
    the opinion of the Chair, the amendment is clearly legislation on 
    an appropriation bill. The point of order is sustained.
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16. Harold D. Cooley (N.C.).
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Conferring Discretion

Sec. 22.4 An amendment to an appropriation bill, providing that no 
    appropriations in the bill be available for contracts for 
    procurements from private contractors except where a federal 
    official determines to the contrary was held to confer new 
    discretionary authority and to be legislation.

    On Apr. 13, 1949,(17) during consideration in the 
Committee of the Whole of the military establishment appropriation bill 
(H.R. 4146), a point of order was raised against an amendment 
containing the following provision:
---------------------------------------------------------------------------
17. 95 Cong. Rec. 4534, 4535, 81st Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [John E.] Fogarty [of Rhode Island]: Mr. Chairman, I offer 
    an amendment.
        The Clerk read as follows:

            Page 90, following line 21, insert a new section, as 
        follows:
            ``Sec. 629. No part of the appropriations made in this act 
        shall be available . . . and no moneys herein appropriated for 
        the Naval Establishment or made available therefor shall be 
        used or expended under contracts hereafter made for the repair, 
        purchase, or acquirement, by or from any private contractor, of 
        any naval vessel, machinery, article, or articles that at the 
        time of the proposed repair, purchase, or acquirement can be 
        repaired, manufactured, or produced in each or any of the 
        Government naval shipyards or arsenals of the United States, 
        when time and facilities permit, and when, in the judgment of 
        the Secretary, such repair, purchase, acquirement, or 
        production would not involve an appreciable increase in cost to 
        the Government, except when the repair, purchase, or 
        acquirement, by or from any private contractor, would, in the 
        opinion of the Secretary, be advantageous to the national 
        defense.''

        Mr. [George H.] Mahon [of Texas]: Mr. Chairman, I make the 
    point of order against the amendment that it is legislation on an 
    appropriation bill.
        Mr. [Francis H.] Case of South Dakota: Mr. Chairman, the 
    proposed amendment clearly imposes additional duties.
        The Chairman: (18) Does the gentleman from Rhode 
    Island desire to be heard on the point of order?
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18. Eugene J. Keogh (N.Y.).

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[[Page 5595]]

        Mr. Fogarty: Mr. Chairman, in offering this amendment today I 
    am not attempting to offer something that has not been in previous 
    appropriation bills. The exact language of the amendment I am 
    offering has appeared in appropriation bills for the military and 
    the naval establishments for the past 25 or 30 years. Without any 
    hearings on this particular section of the bill it was stricken out 
    by the subcommittee handling the bill before use this afternoon. 
    The House has acted upon this very same amendment in the past, and 
    it was considered germane. In a conference between the House and 
    the Senate a year ago this provision was agreed on. I think the 
    amendment is in order at the present time.
        The Chairman: The Chair is ready to rule.
        The gentleman from Rhode Island offers an amendment against 
    which a point of order is made on the ground that it is legislation 
    on an appropriation bill. While it would seem to be a limitation of 
    appropriation, the Chair calls the attention of the Committee to 
    the fact that the amendment does confer discretionary authority 
    upon the Secretary. It is the opinion of the Chair that to that 
    extent the amendment is legislation on an appropriation bill. 
    Therefore, the Chair sustains the point of order.

Incorporation of Legislative Language by Reference

Sec. 22.5 The incorporation by reference of a legislative provision in 
    a former appropriation act is not in order in a general 
    appropriation bill: language in the D.C. appropriation bill 
    providing that employment on playgrounds shall be distributed in 
    accordance with corresponding employment provided for in the D.C. 
    appropriation act for a former fiscal year was held to be 
    legislation.

    On Apr. 2, 1937,(19) during consideration in the 
Committee of the Whole of the District of Columbia appropriation bill, 
a point of order was raised against the first clause in the proviso in 
the following paragraph:
---------------------------------------------------------------------------
19. 81 Cong. Rec. 3107, 75th Cong. 1st Sess.
---------------------------------------------------------------------------

                        Community Center Department

        For personal services of the director, general secretaries, and 
    community secretaries in accordance with the act approved June 4, 
    1924 (43 Stat., pp. 369, 370); clerks and part-time employees, 
    including janitors on account of meetings of parent-teacher 
    associations and other activities; for personal services for public 
    playgrounds adjacent to and in the vicinity of school buildings: 
    Provided, That employments on such playgrounds, except directors 
    who shall be employed for 12 months, shall be distributed as to 
    duration in accordance with corresponding employments provided for 
    in the District of Columbia Appropriation Act for the fiscal year 
    1924; for keeping open public-school playgrounds, including 
    playgrounds operated during the summer months and daily after 
    school hours;

[[Page 5596]]

    for general maintenance, repairs, improvements, equipment, 
    supplies, lighting fixtures, and other incidental and contingent 
    expenses, including labor; and including $10,000 for health and 
    physical education teachers to supervise play in schools of the 
    central area bounded by North Capitol Street on the east, Florida 
    Avenue on the north, the Mall on the south, and Twelfth Street on 
    the west, $216,565.
        Mr. [Jack] Nichols [of Oklahoma]: Mr. Chairman, I make a point 
    of order against the paragraph beginning in line 23, on page 26, 
    down to and inclusive of line 18, on page 27, for the reason that 
    it changes existing law and is, therefore, legislation on an 
    appropriation bill.
        The Chairman: (20) Does the gentleman from 
    Mississippi desire to be heard on the point of order?
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20. Jere Cooper (Tenn.).
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        Mr. [Ross A.] Collins [of Mississippi]: I do not, Mr. Chairman, 
    except to say that the only provision of the paragraph subject to 
    the point of order is the proviso.
        The Chairman: Does the gentleman from Oklahoma make the point 
    of order against the entire paragraph?
        Mr. Nichols: Mr. Chairman, I modify my point of order and 
    direct it to that portion of the paragraph beginning in line 4, 
    page 27, which is the proviso.
        The Chairman: The Chair is prepared to rule. . . .
        The proviso on page 27, beginning at line 4 and continuing 
    through the figures ``1924'' in line 9, is the language against 
    which the point of order is made. The appropriation act of 1924 was 
    law for that year and did not become permanent law. This provision 
    would incorporate into this bill the legislative provision of the 
    act of 1924, and is therefore legislation on an appropriation bill.
        The Chair sustains the point of order.

Sec. 22.6 A provision making restrictions and conditions imposed on 
    similar programs in other appropriation acts applicable to the 
    funds being appropriated in the bill under consideration was 
    conceded to be legislation and was ruled out as in violation of 
    Rule XXI clause 2.

    On May 15, 1957,(1) during consideration in the 
Committee of the Whole of the Agriculture Department appropriation bill 
(H.R. 7441), the following point of order was raised:
---------------------------------------------------------------------------
 1. 103 Cong. Rec. 7012, 85th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [John J.] Rooney [of New York]: Mr. Chairman, I make a 
    point of order with regard to the language beginning with the words 
    ``Provided further,'' on line 8, at page 10, down to and including 
    the word ``Service'' on line 14, the language being as follows:

            Provided further, That provisions of the act of August 1, 
        1956 (70 Stat. 890-892), and provisions of a similar nature in 
        appropriation acts of the Department of State for the current 
        and subsequent fiscal years which facilitate the work of the 
        Foreign

[[Page 5597]]

        Service shall be applicable to funds available to the Foreign 
        Agricultural Service.

        I make the point of order, Mr. Chairman, on the ground that 
    this language is legislation on an appropriation bill.
        Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, may I be 
    heard?
        The Chairman: (2) The Chair recognizes the gentleman 
    from Mississippi [Mr. Whitten].
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 2. Paul J. Kilday (Tex.).
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        Mr. Whitten: Mr. Chairman, the committee concedes the point of 
    order.
        The Chairman: The gentleman from Mississippi concedes the point 
    of order. The point of order is sustained.

House Resolution Made Permanent Law

Sec. 22.7 Language in a general appropriation bill prescribing that the 
    provisions of a House-passed resolution ``shall be the permanent 
    law with respect thereto'' was conceded to be legislation in 
    violation of Rule XXI clause 2 and was ruled out on a point of 
    order.

    On June 4, 1971,(3) during consideration in the 
Committee of the Whole of the legislative branch appropriation bill 
(H.R. 8825), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
 3. 117 Cong. Rec. 18040, 92d Cong. 1st Sess.
---------------------------------------------------------------------------

                          Postage Stamp Allowances

        Postage stamp allowances for the second session of the Ninety-
    second Congress, as follows: Clerk, $1,120; Sergeant at Arms, $840; 
    Doorkeeper, $700; Postmaster, $560; each Member, the Speaker, the 
    majority and minority leaders, the majority and minority whips, and 
    each standing committee, as authorized by law; $321,090: Provided, 
    That the provisions of House Resolution 420, Ninety-second 
    Congress, shall be the permanent law with respect thereto.
        Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of 
    order against the language to be found on page 7, line 7, which 
    states as follows:

            Provided, That the provisions of House Resolution 420, 
        Ninety-second Congress shall be the permanent law with respect 
        thereto.

        I make a point of order against that language on the ground 
    that it is legislation on an appropriation bill.
        The Chairman: (4) The Chair will inquire of the 
    gentleman from Alabama if he wishes to be heard on the point of 
    order.
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 4. John M. Murphy (N.Y.).
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        Mr. [George W.] Andrews of Alabama: Again we were following the 
    intent of the House and a custom which is established.
        The Chairman: Does the gentleman concede the point of order?
        Mr. Andrews of Alabama: We do.
        The Chairman: The point of order against the proviso is 
    sustained, and the Clerk will read.

[[Page 5598]]

Reference to Legislative Provision Elsewhere in Bill

Sec. 22.8 To a bill appropriating emergency funds for the President, an 
    amendment to make the provisions of another section of the bill 
    [which contained legislation subject to a point of order] 
    applicable to the appropriation was held to be legislation.

    On May 25, 1959,(5) during consideration in the 
Committee of the Whole of the general government matters appropriation 
bill (H.R. 7176), a point of order was raised against an amendment to 
the following section:
---------------------------------------------------------------------------
 5. 105 Cong. Rec. 9006, 9007, 9011, 86th Cong. 1st Sess.
---------------------------------------------------------------------------

             Emergency Fund for the President, National Defense

        For expenses necessary to enable the President, through such 
    officers or agencies of the Government as he may designate, and 
    without regard to such provisions of law regarding the expenditure 
    of Government funds or the compensation and employment of persons 
    in the Government service as he may specify, to provide in his 
    discretion for emergencies affecting the national interest, 
    security, or defense which may arise at home or abroad during the 
    current fiscal year, $1,000,000: Provided, That no part of this 
    appropriation shall be available for allocation to finance a 
    function or project for which function or project a budget estimate 
    of appropriation was transmitted pursuant to law during the Eighty-
    sixth Congress, and such appropriation denied after consideration 
    thereof by the Senate or House of Representatives or by the 
    Committee on Appropriations of either body. . . .
        Mr. [Porter] Hardy [Jr., of Virginia]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Hardy: On page 5, line 6, strike 
        the period, insert a colon and the following: ``Provided 
        further, That section 209 of this Act shall be fully applicable 
        to this appropriation.''. . .

        [Note: Section 209 of the bill provided: ``No part of any 
    appropriation contained in this Act, or of the funds available for 
    expenditure by any individual, corporation, or agency included in 
    this Act, shall be used for publicity or propaganda purposes 
    designed to support or defeat legislation pending before 
    Congress.'']
        Mr. [Ivor D.] Fenton [of Pennsylvania]: Mr. Chairman, I make a 
    point of order against the amendment.
        The Chairman:  (6) Does the gentleman desire to be 
    heard on the point of order?
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 6. Carl Albert (Okla.).
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        Mr. Fenton: I do, Mr. Chairman. It is legislation on an 
    appropriation bill. . . .
        The Chairman: Does the gentleman from Virginia desire to be 
    heard on the point of order?
        Mr. Hardy: Yes, Mr. Chairman. I do not know how it can be said 
    that this

[[Page 5599]]

    is legislation on an appropriation bill when it refers to a section 
    of the bill itself.
        The Chairman: The Chair will advise the gentleman that that 
    section may have legislation in it and the fact that the amendment 
    refers to a section of the bill is not an answer to the point of 
    order.
        Mr. Hardy: That may be true, Mr. Chairman, but I would 
    certainly have to express the feeling to ask how is it improper 
    anywhere in a piece of legislation to say that a section of the 
    legislation is applicable to the rest of it.
        The Chairman: Under the rules of the House, any language in an 
    appropriation bill or any amendment to an appropriation bill which 
    contains legislation is subject to a point of order. Therefore, the 
    point of order is sustained.

Exceeding Limitation in Permanent Law

Sec. 22.9 Where a limitation on the amount of an appropriation to be 
    annually available for expenditure by an agency has become law, 
    language in a subsequent appropriation bill seeking to change this 
    limitation on such funds was held to change existing law and 
    therefore to be legislation on an appropriation bill.

    On Mar. 15, 1945,(7) during consideration in the 
Committee of the Whole of a general appropriation bill (H.R. 2603), a 
point of order was raised against the following provision:
---------------------------------------------------------------------------
 7. 91 Cong. Rec. 2305, 79th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Foreign Service Buildings Fund: For the purpose of carrying 
        into effect the provisions of the act of May 25, 1938, entitled 
        ``An act to provide additional funds for buildings for the use 
        of the diplomatic and consular establishments of the United 
        States'' (22 U.S.C. 295a), including the initial alterations, 
        repair, and furnishing of buildings acquired under said act, 
        $1,466,000, notwithstanding the amount [of the] limitation in 
        the act of May 25, 1938 (22 U.S.C. 295a), to remain available 
        until expended: Provided, That expenditures for furnishing made 
        from appropriations granted pursuant to the act of May 7, 1926, 
        and subsequent acts providing funds for buildings for the use 
        of diplomatic and consular establishments of the United States 
        shall not be subject to the provisions of section 3709 of the 
        Revised Statutes.

        Mr. [Edward H.] Rees of Kansas: Mr. Chairman, I make a point of 
    order against the paragraph beginning in line 14, page 16, down to 
    and including line 3, page 17, on the ground it is a violation of 
    the basic law.
        Appropriation is asked notwithstanding the amount (of the) 
    limitation in the act of May 25, 1938 (22 U.S. Code, sec. 295a), as 
    follows:
        Sections 292 et seq. authorized the acquisition of properties 
    abroad for the State Department, and section 295a authorized ``to 
    be appropriated, in addition to the amount authorized by such act, 
    an amount not to exceed $5,000,000, of which not more than 
    $1,000,000 shall be appropriated for any 1 year,'' and so forth.

[[Page 5600]]

        No necessity or reason is shown for the lifting of that 
    $1,000,000 yearly limitation on these appropriations, and the 
    present proposal amounts to, and is, permanent and repealing 
    legislation on an appropriation act.

        The Chairman: (8) Does the gentleman from Michigan 
    [Mr. Rabaut] desire to be heard?
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 8. Wilbur D. Mills (Ark.).
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        Mr. [Louis C.] Rabaut: Mr. Chairman, I think the point of order 
    might apply to the language appearing in lines 20 and 21. That is 
    because of the excesses.
        The Chairman: Permit the Chair to understand the gentleman. The 
    gentleman concedes that the language in lines 20 and 21 is bad and 
    subject to a point of order?
        Mr. Rabaut: Yes.
        The Chairman: Does the gentleman from Kansas [Mr. Rees] insist 
    on his point of order against the entire paragraph? . . .
        Mr. Rees of Kansas: I insist on the point of order to the 
    entire paragraph, Mr. Chairman.
        The Chairman: In view of the fact that certain language in the 
    paragraph is conceded to be subject to a point of order, the entire 
    paragraph is subject to a point of order.
        The Chair sustains the point of order.

Sec. 22.10 An amendment to an appropriation bill seeking to change a 
    limitation on expenditures carried in a previous appropriation bill 
    was held to be legislation and not in order.

    On Dec. 6, 1944,(9) during consideration in the 
Committee of the Whole of a supplemental appropriation bill (H.R 5587), 
a point of order was raised against the following amendment:
---------------------------------------------------------------------------
 9. 90 Cong. Rec. 8940, 8941, 78th Cong. 2d Sess.
---------------------------------------------------------------------------

        Amendment offered by Mr. [Malcolm C.] Tarver [of Georgia]: On 
    page 19, line 3, insert a new paragraph, as follows:

            Conservation and Use of Agricultural land Resources

        ``The limitation on expenditures under the 1944 program of 
    soil-building practices and soil- and water-conservation practices 
    established in the fourth proviso clause of appropriation 
    Conservation and use of agricultural land resources, in the 
    Department of Agriculture Appropriation Act, 1944, is hereby 
    increased from $300,000,000 to $313,000,000 (exclusive of the 
    $12,500,000 provided in the Department of Agriculture Appropriation 
    Act, 1945, for additional seed payments).''
        Mr. [John] Taber [of New York]: Mr. Chairman, I make the point 
    of order that this is legislation on an appropriation bill. The 
    change of a limitation is a change of existing law, and it has been 
    so held repeatedly.
        Mr. Tarver: Mr. Chairman, the Soil Conservation and Domestic 
    Allotment Act authorizes the promulgation of programs to cost not 
    in excess of $500,000,000 annually. In the Agricultural 
    Appropriation Act of 1944 the Congress undertook to impose a 
    limitation of $300,000,000 upon the adminis

[[Page 5601]]

    trative authorities in the promulgation of the over-all program for 
    the calendar year 1944, which program included not only payments 
    and grants for soil-conservation and water-conservation practices, 
    but the furnishing in advance of seeds, limes, fertilizers, trees 
    and other agricultural materials to be used in soil-conservation 
    work and to be charged against the benefits accruing to the farmers 
    in subsequent crop years.
        . . . [T]his amendment, if adopted, does not appropriate or 
    make available to the administrative authorities one single dollar 
    of moneys which are not already available to them but it simply 
    authorizes the use by them of moneys which have been allocated to 
    the seed, fertilizer, lime, and tree program for the discharge of 
    liabilities incurred under the program for the payments and grants 
    for soil- and water-conservation practices. It is, therefore, in 
    effect a reallocation of the funds which have already been 
    appropriated by Congress.
        I may say that that original allocation of funds was not made 
    by the Congress in the enactment of the Agricultural Appropriation 
    Act of 1944, but was made by departmental authorities without 
    mandatory instructions from the Congress to make such allocations, 
    although it probably was a matter within their administrative 
    discretion. So I insist that the Congress by the imposition of the 
    limitation in the Agricultural Appropriation Act of 1944 did not so 
    tie its hands as to make it impossible for the same Congress or for 
    a subsequent Congress to appropriate funds or to review and revise 
    the allocation of funds already appropriated for the purposes 
    outlined in the Soil Conservation and Domestic Allotment Act, so 
    long as it does not exceed the limitation for maximum appropriation 
    provided in that act, which, as I have pointed out, is 
    $500,000,000.
        I respectfully insist, Mr. Chairman, that the amendment is in 
    order and the point of order should be overruled.
        The Chairman: (10) Does the gentleman from New York 
    insist on his point of order?
---------------------------------------------------------------------------
 10. Herbert C. Bonner (N.C.).
---------------------------------------------------------------------------

        Mr. Taber: I do, Mr. Chairman.
        The Chairman: The point of order raised by the gentleman from 
    New York is correct, and the Chair sustains the point of order.

Striking Out Language in Legislation Permitted to Remain

Sec. 22.11 An amendment merely striking out descriptive language in an 
    appropriation bill may not be subject to a point of order as being 
    legislation, if germane and if it does not broaden the 
    appropriation beyond its authorized purpose.

    On May 25, 1959, (11) during consideration in the 
Committee of the Whole of the general government matters appropriation 
bill (H.R. 7176), a point of order was raised against an amendment to 
the following language:
---------------------------------------------------------------------------
 11. 105 Cong. Rec. 9013, 86th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

[[Page 5602]]

            Sec. 202. Unless otherwise specified and during the current 
        fiscal year, no part of any appropriation contained in this or 
        any other Act shall be used to pay the compensation of any 
        officer or employee of the Government of the United States 
        (including any agency the majority of the stock of which is 
        owned by the Government of the United States) whose post of 
        duty is in continental United States unless such person (1) is 
        a citizen of the United States, (2) is a person in the service 
        of the United States on the date of enactment of this Act who, 
        being eligible for citizenship, had filed a declaration of 
        intention to become a citizen of the United States prior to 
        such date, (3) is a person who owes allegiance to the United 
        States, or (4) is an alien from the Baltic countries lawfully 
        admitted to the United States for permanent residence: 
        Provided, That for the purpose of this section, an affidavit 
        signed by any such person shall be considered prima facie 
        evidence that the requirements of this section with respect to 
        his status have been complied with. . . .

        Mr. [James G.] O'Hara of Michigan: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. O'Hara of Michigan: On page 9, 
        lines 5 and 6, after ``alien'' strike out the words ``from the 
        Baltic countries''.

        Mr. [J. Vaughan] Gary [of Virginia]: Mr. Chairman, a point of 
    order.
        The Chairman: (12) The gentleman will state it.
---------------------------------------------------------------------------
12. Carl Albert (Okla.).
---------------------------------------------------------------------------

        Mr. Gary: Mr. Chairman, that is legislation on an appropriation 
    bill.
        The Chairman: The Chair would advise the gentleman that the 
    amendment simply strikes out certain language in the bill.
        The point of order is overruled.

Construing the Use of Funds To Be in Conformity With Existing Law

Sec. 22.12 A provision in a general appropriation bill making 
    appropriations therein available for purchase of station wagons 
    without such vehicles being considered as passenger motor vehicles 
    was held to constitute legislation.

    On May 2, 1951, (13) during consideration in the 
Committee of the Whole of the Department of the Interior appropriation 
bill (H.R. 3709), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
13. 97 Cong. Rec. 4737, 4738, 82d Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

                 general provisions--department of the interior

            Sec. 102. Appropriations made in this act shall be 
        available for the purchase of station wagons without such 
        vehicles being considered as passenger motor vehicles.

        Mr. [Paul C.] Jones of Missouri: Mr. Chairman, I make the point 
    of order against this section on the ground that it is legislation 
    on an appropriation bill.
        Mr. [Henry M.] Jackson of Washington: Mr. Chairman, I concede 
    the point of order.
        The Chairman: (14) The gentleman from Washington 
    concedes the point of

[[Page 5603]]

    order and the Chair sustains the point of order.
---------------------------------------------------------------------------
14. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------

Sec. 22.13 Where an appropriation bill placed a limit on administrative 
    expenses, a provision defining certain expenses now or hereafter 
    incurred as ``non-administrative,'' for purposes of making the 
    computation under any applicable limitation was held to be 
    legislative and was ruled out on a point of order.

    On Jan. 17, 1940,(15) during consideration in the 
Committee of the Whole of the independent offices appropriation bill 
(H.R. 7922), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
15. 86 Cong. Rec. 439, 76th Cong. 3d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Electric Home and Farm Authority, salaries and 
        administrative expenses: Not to exceed $600,000 of the funds of 
        the Electric Home and Farm Authority, established as an agency 
        of the Government by Executive Order No. 7139 of August 12, 
        1935, and continued as such agency until June 30, 1941 by the 
        act of March 4, 1939 (Public Act No. 2, 76th Cong.), shall be 
        available during the fiscal year 1941 for administrative 
        expenses of the Authority, including personal services in the 
        District of Columbia and elsewhere; travel expenses, in 
        accordance with the Standardized Government Travel Regulations 
        and the act of June 3, 1926, as amended (5 U.S.C. 821-833); not 
        exceeding $3,000 for expenses incurred in packing, crating, and 
        transporting household effects (not exceeding 5,000 pounds in 
        any one case) of personnel when transferred in the interest of 
        the service from one official station to another for permanent 
        duty when specifically authorized in the order directing the 
        transfer; printing and binding; law books and books of 
        reference; not to exceed $200 for periodicals, newspapers, and 
        maps; procurement of supplies, equipment, and services; 
        typewriters, adding machines, and other labor-saving devices, 
        including their repair and exchange; rent in the District of 
        Columbia and elsewhere; and all other administrative expenses: 
        Provided, That all necessary expenses (including legal and 
        special services performed on a contract or fee basis, but not 
        including other personal services) in connection with the 
        acquisition, care, repair, and disposition of any security or 
        collateral now or hereafter held or acquired by the Authority 
        shall be considered as nonadministrative expenses for the 
        purposes hereof.

        Mr. [Francis H.] Case of South Dakota: Mr. Chairman, I make the 
    point of order against the paragraph that it contains legislation 
    in the proviso beginning on page 21, line 3, and reading as 
    follows:

            Provided, That all necessary expenses (including legal and 
        special services performed on a contract or fee basis, but not 
        including other personal services) in connection with the 
        acquisition, care, repair, and disposition of any security or 
        collateral now or hereafter held or acquired by the Authority 
        shall be considered as nonadministrative expenses for the 
        purposes hereof.

        I make the point of order merely against the proviso, Mr. 
    Chairman, not against the paragraph.

[[Page 5604]]

        The Chairman: (16) Does the gentleman from Virginia 
    desire to be heard on the point of order?
---------------------------------------------------------------------------
16. Lindsay C. Warren (N.C.).
---------------------------------------------------------------------------

        Mr. [Clifton A.] Woodrum of Virginia: I do not, Mr. Chairman.
        The Chairman: As the language pointed out by the gentleman from 
    South Dakota [Mr. Case] attempts to construe existing law, the 
    Chair believes the point of order is well taken. The point of order 
    is, therefore, sustained, and the proviso is stricken out.

Change in Contract Authorization

Sec. 22.14 Language in an appropriation bill seeking to change a 
    contract authorization contained in a previous appropriation bill 
    passed by another Congress was held to be legislation and not a 
    retrenchment of funds in the bill.

    On Apr. 25, 1947,(17) during consideration in the 
Committee of the Whole of the Department of the Interior appropriation 
bill for fiscal year 1948 (H.R. 3123), the following point of order was 
raised:
---------------------------------------------------------------------------
17. 93 Cong. Rec. 4098, 80th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [Francis H.] Case of South Dakota: Mr. Chairman, I wish to 
    reserve the point of order first in order that I may get some 
    information before I make the point of order finally, and that is 
    with respect to the language which appears at the bottom of page 
    51, which reads as follows:

            Provided further, That the contract authorization of 
        $15,000,000 contained in the Interior Department Appropriation 
        Act, fiscal year 1946, is hereby reduced to $9,750,000.

        My point of order, Mr. Chairman, is that that is legislation 
    amending a previous act and not within the purview of this bill 
    making appropriations for fiscal 1948. It constitutes legislation 
    on an appropriation bill for it destroys existing legislation.
        Before I make the point of order, may I ask the chairman of the 
    committee what the reason is for carrying that language? I feel 
    that the development of the synthetic liquid fuel program is very 
    essential to national defense and is probably the cheapest money we 
    can spend in that direction.
        Mr. [Robert F.] Jones of Ohio: The purpose of this language is 
    to limit the amount to be expended further on this project to the 
    authorization provided in the basic act. In other words, the amount 
    remaining after this appropriation will be the amount of 
    $9,750,000, and will tie the entire appropriation to the basic 
    authorization.
        Mr. Case of South Dakota: What was the reason, then, for the 
    increase of the authorization to $15,000,000 in the act of 1946 and 
    establishment of contract authority?
        Mr. Jones of Ohio: That was to tie the appropriations to the 
    $30,000,000 authorization
        Mr. Case of South Dakota: Mr. Chairman, having introduced a 
    bill which seeks to accomplish about that very thing, I am 
    constrained to make the point of order and do make the point of 
    order.

[[Page 5605]]

        The Chairman: (18) Does the gentleman from Ohio 
    desire to be heard on the point of order?
---------------------------------------------------------------------------
18. Earl C. Michener (Mich.).
---------------------------------------------------------------------------

        Mr. Jones of Ohio: Mr. Chairman, the only purpose of the 
    language is to limit the amount appropriated over all to the 
    $30,000,000 authorization. It seems to me it is merely a 
    restatement of the basic law and clearly in order under the Holman 
    rule because on its face it saves money.
        The Chairman: This language changes a contract authorization 
    contained in a previous appropriation bill passed by another 
    Congress. The Chair sustains the point of order.

Delegation of Statutory Authority

Sec. 22.15 Language in an appropriation bill providing that the head of 
    the department or establishment concerned may delegate to such 
    officials his authority to authorize payment of expenses of travel 
    and of transportation of household goods and immediate families of 
    civilian officers and employees on change of official station was 
    held legislation on an appropriation bill and not in order.

    On Feb. 8, 1945,(19) during consideration in the 
Committee of the Whole of the independent offices appropriation bill 
(H.R. 1984), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
19. 91 Cong. Rec. 965, 79th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            (e) During the fiscal year 1946 the head of the department 
        or establishment concerned may delegate to such officials as he 
        may designate his authority to authorize payment of expenses of 
        travel and of transportation of household goods and immediate 
        families of civilian officers and employees on change of 
        official station.

        Mr. [Francis H.] Case of South Dakota: Mr. Chairman, I make the 
    point of order against the paragraph, particularly the words ``may 
    designate,'' that it is legislation on an appropriation bill, I 
    believe it is a matter that ought to be covered by general 
    legislation.
        Mr. [Clifton A.] Woodrum of Virginia: Mr. Chairman, I concede 
    the point of order.

Bestowing Discretion to Waive Law

Sec. 22.16 Language in an appropriation bill providing funds for 
    additional court facilities and waiving provisions of existing law 
    where this is ``determined to be necessary by the judicial council 
    of the appropriate circuit'' was conceded to be legislation and was 
    ruled out on a point of order.

[[Page 5606]]

    On Sept. 15, 1961,(20) during consideration in the 
Committee of the Whole of a supplemental appropriation bill (H.R. 
9169), a point of order was raised against the two provisions in the 
following paragraph:
---------------------------------------------------------------------------
20. 107 Cong. Rec. 19729, 87th Cong. 1st Sess.
---------------------------------------------------------------------------

                        Additional Court Facilities

        For expenses, not otherwise provided for, necessary to provide, 
    directly or indirectly, additional space, facilities and courtrooms 
    for the judiciary, including alteration and extension of 
    Government-owned buildings and acquisition of additions to sites of 
    such buildings; rents; furnishings and equipment; repair and 
    alteration of rented space; moving Government agencies in 
    connection with the assignment and transfer of space; preliminary 
    planning; preparation of drawings and specifications by contract or 
    otherwise; and administrative expenses; $1,000,000, to remain 
    available until expended: Provided, That buildings constructed 
    pursuant to the Public Buildings Purchase Contract Act of 1954 (40 
    U.S.C. 356) shall be considered to be Government-owned buildings 
    for the purposes of this appropriation: Provided further, That this 
    appropriation shall be available for the provision of court 
    facilities in places which are otherwise subject to the 
    restrictions of section 142 of title 28, United States Code, but 
    only if such facilities are determined to be necessary by the 
    judicial council of the appropriate circuit.
        Mr. [Clare E.] Hoffman of Michigan: Mr. Chairman, I make the 
    point of order against the language on page 11 from line 6 on down 
    to the bottom of the page, including line 25. It is legislation It 
    changes existing legislation. . . .
        Mr. [Albert] Thomas [of Texas]: Mr. Chairman, I cannot do 
    anything but concede the point of order.
        The Chairman: (1) The gentleman from Texas concedes 
    the point of order. The point of order is sustained.
---------------------------------------------------------------------------
 1. Oren Harris (Ark.).
---------------------------------------------------------------------------

Delegating Authority to Suspend Existing Law

Sec. 22.17 To a general appropriation bill an amendment providing that 
    in reducing personnel the determination as to which individual 
    employees shall be retained shall be made by the head of the agency 
    concerned was held to be legislation.

    On June 28, 1952,(2) during consideration in the 
Committee of the Whole of a supplemental appropriation bill (H.R. 
8370), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
 2. 98 Cong. Rec. 8503, 82d Cong. 2d Sess.
---------------------------------------------------------------------------

        Amendment offered by Mr. [Abraham A.] Ribicoff [of Connecticut] 
    to the amendment offered by Mr. [Ben F.] Jensen [of Iowa]: After 
    (b), No. 3, add a new paragraph as follows:
        ``4. That 90 days after the enactment of this act, the number 
    of civilian em

[[Page 5607]]

    ployees who are United States citizens, receiving compensation or 
    allowances from the administrative expense appropriations provided 
    by this act, employed in the United States and overseas by or 
    assigned to the Mutual Security Agency, or employed by or assigned 
    to the Department of State or the Department of Defense for 
    carrying out programs the appropriations for which are provided by 
    this act, and the military personnel assigned to such programs, 
    shall be in the aggregate at least 15 percent less than the number 
    so employed or assigned on June 1, 1952, except for such personnel 
    of the Department of Defense engaged in the manufacturing, repair, 
    rehabilitation, packing, handling, crating, or delivery of 
    materiel: Provided further, That after the Director has determined 
    the reduction to be effected in each agency, the determination as 
    to which individual employees shall be retained shall be made by 
    the head of the agency concerned.''. . .
        The Chairman: (3) Does the gentleman from Virginia 
    make his point of order?
---------------------------------------------------------------------------
 3. Francis E. Walter (Pa.).
---------------------------------------------------------------------------

        Mr. [J. Vaughan] Gary [of Virginia]: Yes. Mr. Chairman, as I 
    understand the amendment, it leaves the discharge of employees 
    entirely to the Administrator, which contravenes existing laws with 
    reference to veterans' preference and also the civil-service laws. 
    It is legislation; it contravenes existing legislation.
        Mr. [John] Taber [of New York]: Mr. Chairman, the point of 
    order comes too late; the amendment had been debated.
        Mr. Gary: I will say to the gentleman from New York that I 
    reserved the point of order at the time the amendment was offered.
        The Chairman: The Chair is ready to rule. Part of the language 
    of the amendment offered by the gentleman from Connecticut, after 
    the proviso, reads:

            That after the Director has determined the reduction to be 
        effected in each agency, the determination as to which 
        individual employees shall be retained shall be made by the 
        head of the agency concerned.

        This portion of the amendment does, in the opinion of the 
    Chair, alter the civil-service laws and laws relating to veterans' 
    preferences, and therefore constitutes legislation on an 
    appropriation bill. The point of order is sustained.

Funding Through Different Department

Sec. 22.18 Where a law authorizes an appropriation to one department 
    for the purpose of prosecuting a certain activity itself or through 
    another department it was held that an amendment proposing to 
    appropriate money directly to the latter department for the purpose 
    of prosecuting such activity changed existing law and was, 
    therefore, not in order on an appropriation bill.

    On Mar. 25, 1937,(4) during consideration in the 
Committee of the

[[Page 5608]]

Whole of a general appropriation bill providing funds for the 
Department of Labor (H.R. 5779), a point of order was raised against 
the following amendment:
---------------------------------------------------------------------------
 4. 81 Cong. Rec. 2775-77, 75th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [James M.] Mead [of New York]: Mr. Chairman, I offer an 
    amendment, which I send to the Clerk's desk.
        The Clerk read as follows:

            Page 103, line 8, after the word ``labor'', insert ``to 
        enable the Division of Labor Standards in the Department of 
        Labor to engage in a program to formulate and promote the 
        furtherance of standards of apprenticeship and apprentice 
        training, $50,000.''

        Mr. [Robert L.] Bacon [of New York]: Mr. Chairman, I make a 
    point of order against the amendment. . . .
        The Chairman: (5) The Chair is ready to rule.
---------------------------------------------------------------------------
 5. Frank H. Buck (Calif.).
---------------------------------------------------------------------------

        The gentleman from New York [Mr. Mead] has offered an amendment 
    to insert a new paragraph, as follows:

            To enable the Division of Labor Standards in the Department 
        of Labor to engage in a program to formulate and promote the 
        furtherance of standards of apprenticeship and apprentice 
        training, $50,000.

        To this amendment the gentleman from New York [Mr. Bacon] has 
    made the point of order that the amendment is not germane to the 
    paragraph to which it is offered, and the further point of order 
    that it is legislation on an appropriation bill.
        Unquestionably the amendment is not germane to the paragraph to 
    which it is offered, and on that ground the Chair could sustain the 
    point of order. It is the understanding of the Chair, however, that 
    the gentleman from New York [Mr. Mead] under these circumstances 
    would desire to return to the appropriate paragraph by unanimous 
    consent of the Committee and again offer the amendment, and for 
    this reason the Chair desires to state that, after an examination 
    of the authorities and the precedents existing and of the act of 
    February 23, 1917, which the gentleman from New York has cited, the 
    Chair feels that the rules and precedents of the House have well 
    established that a general statement of the purpose for which a 
    department is established, as the Department of Labor, as set forth 
    in its organic act, is not to be construed as an authorization for 
    an appropriation which is not definitely and specifically provided 
    for either in that act or in subsequent legislation creating 
    bureaus within such Department. No authority has been cited to the 
    Chair, other than the new suggestion made by the gentleman from New 
    York with reference to the Vocational Education Act, which would 
    take this particular amendment out of the ruling cited by the 
    gentleman from New York (Mr. Bacon) made by Chairman Garner in the 
    Committee of the Whole House some years ago. The Vocational 
    Education Act, insofar as it applies to the point raised by the 
    gentleman from New York, reads as follows:

            When the Interior Department deems it advisable, such 
        studies, investigations, and reports concerning trades and 
        industries for purposes of trade and industrial education may 
        be made in cooperation with or through the Department of Labor.

        The act, however, makes such investigations, studies, and so 
    forth, de

[[Page 5609]]

    pendent upon the determination of the Department of Interior for 
    which the pending bill does not purport to make any appropriation.
        Without desiring to bind any future occupant of the chair who 
    may preside over the Interior Department appropriation bill as to 
    the germaneness of such an amendment as the gentleman from New York 
    offers today, the Chair feels it is entirely beyond the scope of 
    the present bill and that it would be definite legislation on an 
    appropriation bill, transferring from the Interior Department to 
    the Department of Labor these particular activities which would be 
    obnoxious to the rules of the House. For this reason the Chair 
    sustains the point of order.

Granting Discretion to Approve Expenditure

Sec. 22.19 Language in a paragraph of a general appropriation bill 
    providing for the expenditure of funds therein ``on the approval or 
    authority of the Secretary of the Air Force, and payment may be 
    made on his certificate of necessity for confidential military 
    purposes'' was held to change existing law and was ruled out in 
    violation of Rule XXI clause 2 when the Committee on Appropriations 
    failed to cite statutory authority for that method of payment.

    On Nov. 30, 1973,(6) during consideration in the 
Committee of the Whole of the Defense Department appropriation bill 
(H.R. 11575), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
 6. 119 Cong. Rec. 38821, 38822, 93d Cong. 1st Sess.
---------------------------------------------------------------------------

        The Chairman: (7) the Clerk will read.
---------------------------------------------------------------------------
 7. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------

        The Clerk read as follows:

                      Operation and Maintenance, Air Force

            For expenses, not otherwise provided for, necessary for the 
        operation and maintenance of the Air Force, as authorized by 
        law; as follows: for Strategic forces, $1,124,154,000; for 
        General purpose forces, $1,014,091,- 000; for Intelligence and 
        communications, $532,343,000; for Airlift and sealift, 
        $179,240,000; for Central supply and maintenance, 
        $2,318,938,000; for Training operations and other general 
        personnel activities, $517,736,000; for Medical activities, 
        $377,398,000; for Administration and associated activities, 
        $211,467,000; and for the Support of other nations, 
        $256,733,000; in all: $6,532,100,000: Provided, That of the 
        total amount of this appropriation, not to exceed $2,343,000 
        can be used for emergencies and extraordinary expenses, to be 
        expended on the approval or authority of the Secretary of the 
        Air Force, and payment may be made on his certificate of 
        necessity for confidential military purposes: Provided further, 
        That not less than $215,000,000 of the total amount of this 
        appropriation shall be available only for the maintenance of 
        real property facilities. . . .

        Mr. [Robert C.] Eckhardt [of Texas]: Mr. Chairman, I make a 
    point

[[Page 5610]]

    of order on the language commencing on page 8, line 15, ``to be 
    expended on the approval of authority of the Secretary of the Air 
    Force, and payment may be made on his certificate of necessity for 
    confidential military purposes:''.
        The point of order is based on rule XXI, clause 2, in that such 
    language is a provision in an appropriation bill for an existing 
    law and is not contained in the authorization legislation and for 
    other reasons. It is in violation of rule XXI. . . .
        Mr. [William E.] Minshall of Ohio: Mr. Chairman, I cannot cite 
    the actual legislative authority, but we do have general 
    legislative authority for just this provision in the bill. It has 
    been in the bill for many, many previous years.
        The Chairman: Did the gentleman from Ohio state that he cannot 
    cite any authority for this language?
        Mr. Minshall of Ohio: Mr. Chairman, I said I could not, right 
    at this moment. It has been in the previous bill for many, many 
    year.
        The Chairman: The language to which the point of order is 
    directed is the language the gentleman from Texas cited on line 15, 
    as follows:

            To be expended on the approval or authority of the 
        Secretary of the Air Force and payment may be made on his 
        certificate of necessity for confidential military purposes.

        If there is no authority in law for this language, the Chair 
    holds that it must be construed as legislation in violation of 
    clause 2, rule XXI.
        The Chair sustains the point of order.

Sufficiency of Vouchers for Expenditure

Sec. 22.20 In a paragraph appropriating funds for general operating 
    expenses for the District of Columbia, a proviso stating that 
    certificates of the Commissioner and Chairman of the City Council 
    shall be sufficient vouchers for expenditure from that 
    appropriation was conceded to be legislation in violation of Rule 
    XXI clause 2 and was ruled out on a point of order.

    On June 7, 1972,(8) during consideration in the 
Committee of the Whole of the District of Columbia appropriation bill 
(H.R. 15259), the following point of order was raised:
---------------------------------------------------------------------------
 8. 118 Cong. Rec. 19900, 19901, 92d Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Durward G.] Hall [of Missouri]: Mr. Chairman, I raise a 
    point of order.
        The Chairman: (9) The gentleman from Missouri will 
    state his point of order.
---------------------------------------------------------------------------
 9. Dante B. Fascell (Fla.).
---------------------------------------------------------------------------

        Mr. Hall: Mr. Chairman, my point of order should lie on page 3, 
    line 8, following the colon, against the phrase:

            Provided, That the certificate of the Commissioner (for 
        $2,500) and of the Chairman of the City Council (for $2,500) 
        shall be sufficient voucher for expenditures from this 
        appropriation for such purposes, exclusive of ceremony 
        expenses, as they may respectively deem necessary:

        In other words, Mr. Chairman, I am raising a point of order 
    against all after the colon on line 8, through the colon on line 
    13.

[[Page 5611]]

        This was not authorized, and it is an appropriation bill 
    without authorization
        The Chairman: The Chair will state to the gentleman from 
    Missouri that that part of the bill to which the gentleman has 
    raised his point of order was previously read prior to the 
    unanimous-consent request.
        Mr. Hall: But, Mr. Chairman, I submit that the unanimous-
    consent request was granted to the entire bill, that it be open to 
    amendment and open for points of order at any point. This request 
    was granted and therefore I have gone back to this point of order.
        The Chairman: Does the gentleman from Kentucky desire to be 
    heard on the point of order raised by the gentleman from Missouri?
        Mr. [William H.] Natcher [of Kentucky]: Mr. Chairman, the 
    gentleman from Missouri (Mr. Hall) is correct, and we concede the 
    point of order.
        The Chairman: The point of order is conceded, and the point of 
    order is sustained.(10)
---------------------------------------------------------------------------
10. See also 119 Cong. Rec. 20068, 93d Cong. 1st Sess., June 18, 1973 
        [H.R. 8658].
---------------------------------------------------------------------------

Various Grounds for Objection

Sec. 22.21 An entire title in an appropriation bill for the Atomic 
    Energy Commission which included, in part, provisions for (1) the 
    employment of aliens; (2) rental of space upon a determination of 
    need by the Administrator of General Services; (3) use of 
    unexpended balances of previous years; (4) transfer of sums to 
    other agencies; (5) a sum to remain available until expended; (6) 
    reappropriation of funds for plant and equipment; and (7) a power 
    reactor project not authorized by law, was held to be in violation 
    of Rule XXI clause 2.

    On July 24, 1956,(11) during consideration in the 
Committee of the Whole of the second supplemental appropriation bill, a 
point of order was raised against a title containing provisions as 
described above. The proceedings were as follows:
---------------------------------------------------------------------------
11. 102 Cong. Rec. 14289, 84th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Clarence] Cannon [of Missouri]: Mr. Chairman, I ask 
    unanimous consent that the bill be considered as read and now be 
    open to points of order and amendments to any part of the bill.
        The Chairman: (12) Is there objection to the request 
    of the gentleman from Missouri?
---------------------------------------------------------------------------
12. Oren Harris (Ark.).
---------------------------------------------------------------------------

        There was no objection.
        Mr. Cannon: Mr. Chairman, I make a point of order against title 
    I and also the item for the Bureau of Reclamation on page 7.
        The Chairman: Is the gentleman making a point of order against 
    the entire title I?

[[Page 5612]]

        Mr. Cannon: Title I and the material indicated as well as on 
    page 7.

        The Chairman: Let us pass on one point of order at a time, 
    please. Does anybody wish to be heard on the point of order made by 
    the gentleman from Missouri [Mr. Cannon] against title I?
        Mr. [Walter H.] Judd [of Minnesota]: On what basis is the point 
    of order made?
        Mr. Cannon: Not authorized by law and is legislation on an 
    appropriation bill.
        Mr. Judd: A lot of it is authorized by law.
        Mr. [John] Taber [of New York]: Mr. Chairman, the items in 
    title I, with the exception of the several provisos, are entirely 
    within the statute and are authorized. I thought I had an 
    understanding that the only item to go out was the $400 million 
    item, but as long as the point of order is made on that, I will 
    offer an amendment to cover everything except that last proviso 
    after the point of order is disposed of.
        Mr. Cannon: Mr. Chairman, title I, in its entirety, is subject 
    to a point of order. Part of the paragraph being subject to a point 
    of order, the entire paragraph is subject to a point of order.
        Title I is subject to a point of order on the ground that it is 
    legislation on an appropriation bill.
        The Chairman: The Chair is prepared to rule. The gentleman from 
    Missouri makes the point of order against title I of the pending 
    bill on the ground that it is legislation on an appropriation bill 
    or contains appropriations not authorized by law. The Chair has 
    gone through title I and has observed that every paragraph in it 
    either contains legislation on an appropriation bill, which is in 
    violation of the rules of the House, or contains appropriations 
    which are not authorized by law, which is also in violation of the 
    rules of the House.
        The Chair sustains the point of order.

Change in Policy by Negative Restriction on Use of Funds

Sec. 22.22 While a limitation may not involve a permanent change of 
    existing law, the allegation that it may result in a change of 
    administrative policy would not itself render it subject to a point 
    of order if only a negative limitation on use of funds.

    On May 11, 1960,(13) during consideration in the 
Committee of the Whole of the Agriculture Department appropriation bill 
(H.R. 12117), a point of order was raised against the following 
section:
---------------------------------------------------------------------------
13. 106 Cong. Rec. 10053, 10054, 86th Cong. 2d Sess.
---------------------------------------------------------------------------

        Sec. 408. No part of the funds appropriated by this Act shall 
    be used to pay the compensation of any employee or officer of the 
    Department, except the Secretary of Agriculture, who, in addition 
    to other regularly assigned responsibilities, serves as a member of 
    the Board of Directors or as an officer of the Commodity Credit 
    Corporation after February 1, 1961.

[[Page 5613]]

        Mr. [Paul] Brown of Georgia: Mr. Chairman, a point of order.
        The Chairman: (14) The gentleman will state it.
---------------------------------------------------------------------------
14. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------

        Mr. Brown of Georgia: Mr. Chairman, section 408 provides that 
    none of the funds appropriated by H.R. 12117, making appropriations 
    for the Department of Agriculture and Farm Credit Administration, 
    shall be used to pay the salary of any officer or employee of the 
    Department--except the Secretary--who serves as a member of the 
    Board of Directors of CCC, or as an officer of CCC, in addition to 
    other regular duties with the Department.
        This reverses a decision made by the Banking and Currency 
    Committee and the Congress in 1949, when the CCC Charter Act was 
    amended to strike out a similar restriction which had been enacted 
    in 1948. It is, therefore, legislation, and the mere fact it is put 
    in the form of a limitation on the use of funds appropriated by the 
    bill does not save it. As paragraph 1691, volume 7, of Cannon's 
    Precedents of the House of Representatives puts it:

            The purpose rather than the form of a proposed limitation 
        is the proper criterion by which its admissibility should be 
        judged, and if its purpose appears to be a restriction of 
        executive discretion to a degree that may be fairly termed a 
        change of policy rather than a matter of administrative detail 
        it is not in order.

        Again in paragraph 1606 of the same volume, the following is 
    found:

            Whenever a purported limitation makes unlawful that which 
        before was lawful or makes lawful that which before was 
        unlawful it changes existing law and is not in order on an 
        appropriation bill.
            A proper limitation is negative and in the nature of a 
        veto, and when it assumes affirmative form by direction to an 
        executive in the discharge of his duties under existing law it 
        ceases to be a limitation and becomes legislation.

        Section 408 in effect requires the Secretary to take 
    affirmative action. To carry out the farm programs financed by CCC, 
    the Secretary would have to appoint new Board members, recruited 
    from private life, to replace the six Department officers other 
    than himself who now serve on the Board. He would also have to 
    recruit and appoint new personnel to serve as officers of the 
    Corporation. This not only means the section constitutes 
    legislation, but also means it is not entitled to the protection of 
    the Holman rule, because it would not save the Government money. On 
    the contrary, it would require hiring new employees at additional 
    expense to the Government.
        The Chairman: Does the gentleman from Mississippi [Mr. Whitten] 
    desire to be heard on the point of order?
        Mr. [Jamie L.] Whitten: Mr. Chairman, the section clearly 
    provides a limitation on the use of funds that are appropriated in 
    this bill. It does not change the Commodity Credit Corporation 
    charter. It does not change any basic law. It just simply limits 
    what the money in this bill can be used for. It has been my 
    experience and observation during the years here that the Chair has 
    many times said that it is a negative limitation on the use of 
    money and that it is clearly in order, and on that I rest the 
    committee's position.

[[Page 5614]]

        The Chairman: The Chair is prepared to rule.
        The gentleman from Georgia [Mr. Brown] makes a point of order 
    against the language in section 408 of the bill on the ground that 
    it constitutes legislation on an appropriation bill.
        The Chair has had an opportunity to examine the precedents in 
    this connection, including the precedents to which the gentleman 
    from Georgia has referred and from which he has read. The Chair 
    would also refer to paragraph 1694 of Cannon's Precedents, volume 
    7, the language being:

            While a limitation may not involve change of existing law 
        or affirmatively restrict executive direction, it may properly 
        effect a change of administrative policy and still be in order.

        The Chair has examined additional precedents bearing on this 
    question. The Chair is constrained to hold that section 408 is a 
    restriction on a manner in which the funds can be used, and 
    constitutes a negative limitation, and therefore, overrules the 
    point of order.

    Parliamentarian's Note: There are other recent rulings in which the 
Chair has chosen to rely on the headnote in 7 Cannon's Precedents

Sec. 1694 rather than on

Sec. 1691 in permitting limitations on use of funds. See 118 Cong. Rec. 
    30749, 30750, 92d Cong. 2d Sess., Sept. 14, 1972; 120 Cong. Rec. 
    20601, 20602, 93d Cong. 2d Sess., June 21, 1974; 120 Cong. Rec. 
    34716, 93d Cong. 2d Sess., Oct. 9, 1974.

Changing Limitation in Prior Law

Sec. 22.23 A limitation in an appropriation bill having become law, a 
    provision in a subsequent appropriation bill for that fiscal year 
    seeking to change this limitation was conceded to be legislation 
    and was ruled out on a point of order.

    On Aug. 26, 1960,(15) during consideration in the 
Committee of the Whole of a supplemental appropriation bill (H.R. 
12740), the following point of order was raised:
---------------------------------------------------------------------------
15. 106 Cong. Rec. 17899, 86th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of 
    order against the language in the bill on page 7, beginning on line 
    11, running through line 4 on page 8, as being legislation on an 
    appropriation bill. The language referred to is as follows:

                      Foreign Claims Settlement Commission

                             Salaries and expenses

            For an additional amount for ``Salaries and expenses,'' 
        including allowances and benefits similar to those provided by 
        title IX of the Foreign Service Act of 1946, as amended, as 
        determined by the Commission . . . hire of passenger motor 
        vehicles

[[Page 5615]]

        abroad; insurance on official motor vehicles abroad; and 
        advances of funds abroad; $145,000: Provided, That the 
        limitation under this head in the General Government Matters 
        Appropriation Act, 1961, on the amount available for expenses 
        of travel, is increased from ``$10,000'' to ``$20,000''.

        The Chairman: (16) Does the gentleman from Texas 
    desire to be heard on the point of order?
---------------------------------------------------------------------------
16. Herbert C. Bonner (N.C.).
---------------------------------------------------------------------------

        Mr. [Albert] Thomas [of Texas]: Mr. Chairman, the gentleman 
    from Iowa is right. This is the first time that these people have 
    operated overseas and they asked for a little oversea allowance The 
    Bureau of the Budget recommended it. We did not feel that we wanted 
    to be the least bit oppressive on it. Mr. Chairman, the point of 
    order is conceded.
        The Chairman: The point of order made by the gentleman from 
    Iowa is sustained.(17)
---------------------------------------------------------------------------
17. See also 111 Cong. Rec. 7128, 89th Cong. 1st Sess., Apr. 6, 1965 
        [H.R. 7091].
---------------------------------------------------------------------------

Provision Applicable ``Hereafter''

Sec. 22.24 Language in an appropriation bill imposing duties upon an 
    executive not contemplated by law is legislation and not in order.

    On Mar. 30, 1955,(18) during consideration in the 
Committee of the Whole of the independent offices appropriation bill 
(H.R. 5240), the following point of order was raised:
---------------------------------------------------------------------------
18. 101 Cong. Rec. 4067, 4068, 84th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [Clare E.] Hoffman of Michigan: Mr. Chairman, I make a 
    point of order against the language on page 20 of the bill at line 
    18 running through line 1, on page 21.
        The Chairman: (19) The gentleman will state the 
    point of order.
---------------------------------------------------------------------------
19. Albert Rains (Ala.).
---------------------------------------------------------------------------

        Mr. Hoffman of Michigan: Mr. Chairman, the proviso beginning on 
    page 20 of H.R. 5240 at line 18 and running through line 1, on page 
    21, as follows: ``Provided, That the clause under this head in the 
    `Independent Offices Appropriation Act, 1955,' relating to the 
    Administrator's general supervision and coordination 
    responsibilities, is amended to read as follows: `and the 
    Administrator's general supervision and coordination 
    responsibilities under Reorganization Plan No. 3 of 1947 shall 
    hereafter carry full authority, where applicable, to promote 
    economy, efficiency, and fidelity in the operations of the Housing 
    and Home Finance Agency,' '' is legislation on an appropriation 
    bill in that--
        First. It changes existing law--see House Report No. 304, page 
    17--by amending permanent legislation enacted in the Independent 
    Offices Appropriation Act, 1955, and by amending Reorganization 
    Plan No. 3 of 1947.
        Second. It imposes new duties on an administrative official. . 
    . .
        Mr. [Albert] Thomas [of Texas]: Mr. Chairman, we concede the 
    point of order.
        The Chairman: The Chair is ready to rule. Obviously, the 
    language

[[Page 5616]]

    against which the point of order is made is legislation upon an 
    appropriation bill and the point of order is sustained.

Proponent of Amendment Has Burden if Point of Order Is Raised

Requiring New Execution Determination

Sec. 22.25 The burden of proof is on the proponent of an amendment to a 
    general appropriation bill to show that a proposed executive 
    determination is required by existing law, and the mere recitation 
    that the determination is to be made pursuant to existing law and 
    regulations, absent a citation to the law imposing that 
    responsibility, is not sufficient to overcome a point of order that 
    the amendment constitutes legislation.

    On Sept. 16, 1980,(20) during consideration in the 
Committee of the Whole of H.R. 8105, the Defense Department 
appropriation bill, a point of order was sustained against an amendment 
offered to a provision of the bill as indicated below:
---------------------------------------------------------------------------
20. 126 Cong. Rec. 25606, 25607, 96th Cong. 2d Sess.
---------------------------------------------------------------------------

        Provided further, That no funds herein appropriated shall be 
    used for the payment of a price differential on contracts hereafter 
    made for the purpose of relieving economic dislocations: Provided 
    further, That none of the funds appropriated in this Act shall be 
    used except that, so far as practicable, all contracts shall be 
    awarded on a formally advertised competitive bid basis to the 
    lowest responsible bidder.
        The Clerk read as follows:

            Amendment offered by Mr. [Joseph P.] Addabbo [of New York]: 
        Page 41, line 23, strike out ``Provided further'' and all that 
        follows through ``economic dislocations:'' on page 42, line 1, 
        and insert in lieu thereof ``Provided further, That no funds 
        herein appropriated shall be used for the payment of a price 
        differential on contracts hereafter made for the purpose of 
        relieving economic dislocations other than contracts made by 
        the Defense Logistics Agency and such other contracts of the 
        Department of Defense as may be determined by the Secretary of 
        Defense pursuant to existing laws and regulations as not to be 
        inappropriate therefor by reason of national security 
        considerations:''. . . .

        Mr. [Jack] Edwards of Alabama: Mr. Chairman, I make a point of 
    order against the amendment as legislation in a general 
    appropriation bill, and therefore in violation of clause 2 of rule 
    XXI.
        I respectfully direct the attention of the Chair to Deschler's 
    Procedure, chapter 25, section 11.2 which states:

            It is not in order to make the availability of funds in a 
        general appropriation bill contingent upon a substantive 
        determination by an executive official which he is not 
        otherwise required by law to make.

        I also respectfully direct the attention of the Chair to 
    section 843 of the House Manual, which states in part:

[[Page 5617]]

            The fact that a limitation on the use of funds may . . . 
        impose certain incidental burdens on executive officials does 
        not destroy the character of the limitation as long as it does 
        not directly amend existing law and is descriptive of functions 
        and findings already required to be undertaken under existing 
        law.

        The amendment prohibits the payment of price differentials on 
    contracts except ``as may be determined by the Secretary of Defense 
    pursuant to existing laws and regulations as not to be 
    inappropriate therefor by reason of national security 
    considerations.''
        The exception makes the availability of funds for payment of 
    price differentials contingent on a substantive determination by 
    the Secretary of Defense which is not now required under current 
    law.
        Although the determination is limited ``pursuant to existing 
    laws and regulations'', there is no existing law at the present 
    time, and if this amendment is enacted, it will constitute the 
    existing law, and require this new determination. . . . Mr. 
    Chairman, the amendment prohibits the payment of price 
    differentials on contracts except--and I quote:

            As may be determined by the Secretary of Defense pursuant 
        to existing laws and regulations as not to be inappropriate 
        therefor by reason of national security considerations.

        The exception makes the availability of funds for payment of 
    price differentials contingent on a substantive determination by 
    the Secretary of Defense which is not now required under the 
    current law. Although the determination is limited ``pursuant to 
    existing laws and regulations,'' there is no existing law at the 
    present time, and if this amendment is enacted, it will constitute 
    the existing law and require this new determination.
        I would urge that the Chair rule that this amendment is out of 
    order. . . .
        The Chairman: (1) The Chair is ready to rule.
---------------------------------------------------------------------------
 1. Daniel D. Rostenkowski (Ill.).
---------------------------------------------------------------------------

        The amendment would appear to call for a determination by the 
    Secretary of Defense as to appropriateness by reason of national 
    security considerations. Unless the gentleman from New York (Mr. 
    Addabbo) can cite to the Chair those provisions of existing law 
    requiring such determinations with respect to defense contracts, 
    the Chair must conclude that the amendment would impose new duties 
    upon the Secretary and would constitute legislation.
        Mr. Addabbo: I accept the point of order, Mr. Chairman.
        The Chairman: The Chair has sustained the point of order.

Amendment's Proponent Carries Burden of Showing No Change in Existing 
    Law

Restrictions on Apportionment of Funds as Distinguished From Limitation 
    on Amount, Purpose, or Object of Funds

Sec. 22.26 The proponent of an amendment to a general appropriation 
    bill has the burden of proving that the amendment does not change 
    existing law and, if in the form of a limitation, falls

[[Page 5618]]

    within the category of permissible limitations described by 
    precedents arising under Rule XXI clause 2; and if the amendment is 
    susceptible to more than one interpretation, it is incumbent on the 
    proponent to show that it is not in violation of the rule.

    On July 28, 1980,(2) the Committee of the Whole having 
under consideration the Department of Housing and Urban Development and 
independent agencies appropriation bill (H.R. 7631), an amendment was 
offered and ruled upon as follows:
---------------------------------------------------------------------------
 2. 126 Cong. Rec. 19924, 19925, 96th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Herbert E.] Harris [II, of Virginia]: Mr. Chairman, I 
    offer an amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Harris: Page 45, after line 23, 
        insert the following:
            Sec. 413. No more than an amount equal to 20 percent of the 
        total funds appropriated under this Act for any agency for any 
        fiscal year and apportioned to such agency pursuant to section 
        3679 of the Revised Statutes of the United States (31 U.S.C. 
        665) may be obligated during the last two months of such fiscal 
        year. . . .

        The Chairman: (3) Does the gentleman from Indiana 
    [Mr. Myers] insist on his point of order?
---------------------------------------------------------------------------
 3. Elliott H. Levitas (Ga.).
---------------------------------------------------------------------------

        Mr. [John T.] Myers of Indiana: I do, Mr. Chairman.
        Mr. Chairman, the gentleman has offered an amendment to limit 
    the appropriations to a specific time; but I respectfully suggest 
    that the fact the gentleman has added the words, ``No more than'' 
    is still not, in fact, a limitation. . . .
        Mr. Chairman, the fact that you are limiting here, not 
    directing, but limiting the authority to the last 2 months how much 
    may be spent takes away the discretionary authority of the 
    Executive which might be needed in this case. It clearly is more 
    than an administrative detail when you limit and you take away the 
    right of the Executive to use the funds prudently, to take 
    advantage of saving money for the Executive, which we all should be 
    interested in, and I certainly am, too; but Mr. Chairman, rule 843 
    provides that you cannot take away that discretionary authority of 
    the Executive.
        This attempt in this amendment does take that discretionary 
    authority to save money, to wisely allocate money prudently and it 
    takes away, I think, authority that we rightfully should keep with 
    the Executive, that you can accumulate funds and spend them in the 
    last quarter if it is to the advantage of the taxpayer and the 
    Executive. . . .
        Mr. Harris: . . . Mr. Chairman, let me first address the last 
    point, probably because it is the weakest that the gentleman has 
    made with respect to his point of order.
        With respect to the discretion that we are in any way limiting 
    the President, we cannot limit the discretion which we have not 
    given the President directly through legislation. There is no 
    discretion with regard to legislation

[[Page 5619]]

    that we have overtly legislated and given to the President.
        Mr. Chairman, section 665(c)(3) of title 31 of the United 
    States Code, which states the following:

            Any appropriation subject to apportionment shall be 
        distributed as may be deemed appropriate by the officers 
        designated in subsection (d) of this section to make 
        apportionments and reapportionments.

        Clearly grants agency budget officers the discretionary 
    authority to apportion the funds in a manner they deem appropriate. 
    My amendment would not interfere with this authority to apportion 
    funds. On the contrary, my amendment reaffirms this section of the 
    United States Code, as Deschler's Procedures, in the U.S. House of 
    Representatives, chapter 26, section 1.8, states:

            The provision of the rule forbidding in any general 
        appropriation bill a ``provision changing existing law'' is 
        construed to mean the enactment of law where none exists, or a 
        proposition for repeal of existing law. Existing law may be 
        repeated verbatim in an appropriation bill, but the slightest 
        change of the text causes it to be ruled out.

        My amendment, Mr. Chairman, as the Chair will note, 
    specifically restates by reference the existing law, which in no 
    way gives discretion as to spending, but gives discretion as to 
    apportionment.
        Mr. Chairman, as the Chair knows, the budget execution cycle 
    has many steps. Whereas the Chair's earlier ruling related to the 
    executive branch authority to apportion, my amendment addresses the 
    obligation rate of funds appropriated under the fact. As OMB 
    circular No. A-34 (July 15, 1976) titled ``Budget Execution'' 
    explains:

            Apportionment is a distribution made by OMB.
            Obligations are amounts of orders placed, contracts 
        awarded, services received, and similar transactions.

        Mr. Chairman, my amendment proposes some additional duties, but 
    only a very minimal additional duty upon the executive branch.
        Deschler's chapter 26, section 11.1 says:

            The application of any limitation on an appropriation bill 
        places some minimal extra duties on Federal officials, who, if 
        nothing else, must determine whether a particular use of funds 
        falls within that prohibited by the limitation. . . .

        The Chairman: . . . In the first instance, the Chair would 
    observe that it is not the duty of the Chair or the authority of 
    the Chair to rule on the wisdom or the legislative effect of 
    amendments.
        Second, the Chair will observe that the gentleman from 
    Virginia, in the way in which his amendment has been drafted, 
    satisfies the requirements of the Apportionment Act, which was the 
    subject of a prior ruling (4) of the Chair in connection 
    with another piece of legislation.
---------------------------------------------------------------------------
 4. See Sec. 51.23, infra.
---------------------------------------------------------------------------

        The Chair agrees with the basic characterization made by the 
    gentleman from Indiana that the precedents of the House relating to 
    limitations on general appropriation bills stand for the 
    proposition that a limitation to be in order must apply to a 
    specific purpose, or object, or amount of appropriation. The 
    doctrine of limita

[[Page 5620]]

    tions on a general appropriation bill has emerged over the years 
    from rulings of Chairmen of the Committee of the Whole, and is not 
    stated in clause 2, rule XXI itself as an exception from the 
    prohibition against inclusion of provisions which ``change existing 
    law.'' Thus the Chair must be guided by the most persuasive body of 
    precedent made known to him in determining whether the amendment 
    offered by the gentleman from Virginia (Mr. Harris) ``changes 
    existing law.'' Under the precedents in Deschler's Procedure, 
    chapter 26, section 1.12, the proponent of an amendment has the 
    burden of proving that the amendment does not change existing law.
        The Chair feels that the basic question addressed by the point 
    of order is as follows: Does the absence in the precedents of the 
    House of any ruling holding in order an amendment which attempts to 
    restrict not the purpose or object or amount of appropriation, but 
    to limit the timing of the availability of funds within the period 
    otherwise covered by the bill require the Chair to conclude that 
    such an amendment is not within the permissible class of amendments 
    held in order as limitations? The precedents require the Chair to 
    strictly interpret clause 2, rule XXI, and where language is 
    susceptible to more than one interpretation, it is incumbent upon 
    proponent of the language to show that it is not in violation of 
    the rule (Deschler's chapter 25, section 6.3).
        In essence, the Chair is reluctant, based upon arguments 
    submitted to him, to expand the doctrine of limitations on general 
    appropriation bills to permit negative restrictions on the use of 
    funds which go beyond the amount, purpose, or object of an 
    appropriation, and the Chair therefore and accordingly sustains the 
    point of order.

Committee Has Burden of Defending Provisions of Bill

Sec. 22.27 Provisions in a general appropriation bill described in the 
    accompanying report pursuant to Rule XXI clause 3 as directly or 
    indirectly changing the application of existing law are presumably 
    legislation in violation of Rule XXI clause 2(c), in the absence of 
    rebuttal by the committee.

    On May 31, 1984,(5) during consideration in the 
Committee of the Whole of the Departments of State, Justice, and 
Commerce appropriation bill (H.R. 5172), a point of order was made and 
sustained, as follows:
---------------------------------------------------------------------------
 5. 130 Cong. Rec. ----, 98th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Robert S.] Walker [of Pennsylvania]: Mr. Chairman, I have 
    a point of order.
        The portion of the bill to which the point of order relates is 
    as follows:

                       Administration of Foreign Affairs

                             salaries and expenses

            For necessary expenses of the Department of State and the 
        Foreign Service, not otherwise provided for, including 
        obligations of the United

[[Page 5621]]

        States abroad pursuant to treaties, international agreements, 
        and binational contracts (including obligations assumed in 
        Germany on or after June 5, 1945) and notwithstanding section 
        602 of this Act for administering the contribution to the 
        United States India Fund for Cultural, Educational, and 
        Scientific Cooperation; expenses authorized by section 9 of the 
        Act of August 31, 1964, as amended (31 U.S.C. 3721), and 
        section 2 of the State Department Basic Authorities Act of 
        1956, as amended (22 U.S.C. 2669). . . .

        Mr. Chairman, I refer to the committee report in which this 
    particular section is listed as a change in the application of 
    existing law. Therefore, that would be in violation of rule XXI and 
    therefore I think my point of order should be sustained.
        The Chairman: (6) Does the gentleman from Iowa wish 
    to be heard any further?
---------------------------------------------------------------------------
 6. George E. Brown, Jr. (Calif.).
---------------------------------------------------------------------------

        Mr. [Neal] Smith of Iowa: No, Mr. Chairman.
        The Chairman: It is the opinion of the Chair that since the 
    committee report concedes that this is a change in existing law, 
    the point of order should be upheld, and the point of order is 
    upheld.

Language Requiring Official to Apply Standards Held Unconstitutional by 
    Competent Court

Sec. 22.28 Rule XXI clause 2 prohibits an amendment to a general 
    appropriation bill which changes existing court-made as well as 
    statutory law; an amendment to a general appropriation bill 
    containing funds for the Internal Revenue Service, to deny use of 
    funds therein to formulate or carry out any regulation which would 
    cause loss of tax-exempt status to private religious schools, 
    unless in effect prior to Aug. 22, 1978, was ruled out of order as 
    legislation, since a federal court had enjoined the Internal 
    Revenue Service from applying the regulations in effect on Aug. 22, 
    1978, and the amendment had the effect of requiring the Internal 
    Revenue Service to apply interpretations of the Internal Revenue 
    Code no longer in accordance with the law.

    On Aug. 19, 1980,(7) during consideration in the 
Committee of the

[[Page 5622]]

Whole of the Department of Treasury and Postal Service appropriation 
bill, a point of order was sustained against the following amendment:
---------------------------------------------------------------------------
 7. 126 Cong. Rec. 21978-80, 96th Cong. 2d Sess. See also the note in 
        Sec. 77.10, infra, as to the effect of rulings under clause 
        5(b) of Rule XXI, which provides that no bill or joint 
        resolution carrying a tax or tariff measure shall be reported 
        by any committee not having jurisdiction to report tax and 
        tariff measures, nor shall an amendment in the House or 
        proposed by the Senate carrying a tax or tariff measure be in 
        order during the consideration of a bill or joint resolution 
        reported by a committee not having that jurisdiction.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. [John M.] Ashbrook [of Ohio]: On 
        page 8, after line 22, insert the following new section:
            ``Sec. 103. None of the funds made available pursuant to 
        the provisions of this Act shall be used to formulate or carry 
        out any rule, policy, procedure, guideline, regulation, 
        standard, or measure which would cause the loss of tax-exempt 
        status to private, religious, or church-operated schools under 
        section 501(c)(3) of the Internal Revenue Code of 1954 unless 
        in effect prior to August 22, 1978.''. . . .

        Mr. [Louis] Stokes [of Ohio]: Mr. Chairman, I make a point of 
    order against the proposed amendment on the grounds that it is 
    legislation on an appropriation bill in violation of clause 2 of 
    rule XXI.
        Chapter 26, section 11.1 of Deschler's Procedure states:

            When an amendment . . . explicitly places new duties on 
        officers of the government, or implicitly requires them to make 
        investigations, compile evidence or make judgments and 
        determinations not otherwise required of them by law then it 
        assumes the character of legislation and is subject to a point 
        of order.

        This amendment would impose additional executive duties. Under 
    the provisions of this amendment the Commissioner and employees of 
    IRS would be required to make a determination as to whether or not 
    ``any policy, procedure, guideline, regulation, standard, or 
    measure'' that the IRS proposed to ``formulate or carry out'' would 
    cause the ``loss of tax exempt status'' of private schools. It 
    would require Federal officials to make new determinations as to 
    the current tax-exempt status of each private school, what that 
    tax-exempt status was on August 22, 1978 and whether the proposed 
    action would cause the loss of that tax exemption. This amendment 
    places new duties on executive officials to make judgments and 
    determinations not required under existing law.

        In addition, Mr. Chairman, rule XXI, clause 2 specifically 
    states that no ``amendment changing existing law'' shall be in 
    order. The proposed amendment does change existing law. The 
    application of section 501(c)(3) of the Internal Revenue Service 
    Code (title 26 of the U.S. Code) has been modified over the years 
    by court decision.
        For example, in Green against Connally in 1971 the Supreme 
    Court held that a segregative private school is not entitled to 
    tax-exempt status even though that section of the code says 
    absolutely nothing directly or indirectly about racial 
    discrimination or segregative schools. It is clear, Mr. Chairman, 
    that the Federal courts, through their interpretation of the 
    Constitution, have the authority under the Constitution to change 
    the application of existing law through judicial interpretation. I 
    would maintain that section 501(c)(3) as it was applied on August 
    22, 1978 has now been changed by Federal court interpretation of 
    that section. I refer specifically to the recent Federal court 
    order Green against Mil

[[Page 5623]]

    ler, which is referred to as Green II, decided on May 5, 1980. I 
    need not go into the specific details relative to that case, but it 
    is certainly apparent, Mr. Chairman, I think, that this decision 
    has changed the application of section 501(c)(3). Thus, the 
    proposed amendment by the gentleman from Ohio would require that 
    the Internal Revenue Service return to the law as it was 
    interpreted on August 22, 1978. This then would be a change from 
    the interpretation now given that section.
        A recent precedent, Mr. Chairman, is the ruling by the Chair on 
    an amendment to the Treasury, Postal Service appropriation bill for 
    1979 which can be found on page H5096 in the Congressional Record 
    of June 7, 1978. That amendment attempted to prohibit the Internal 
    Revenue Service from determining whether or not an individual is an 
    employee ``other than under the audit practices, interpretations, 
    regulations and Federal court decisions in effect on December 31, 
    1975.'' The Chair ruled that the amendment would ``require a return 
    to the law as it existed prior to'' that date and therefore changed 
    existing law and was not in order.
        For those reasons, Mr. Chairman, I believe the amendment to be 
    in violation of rule XXI, clause 2, and urge the approval of the 
    point of order. . . .
        Mr. Ashbrook: . . . As we all know, there are three primary 
    tests of germaneness in the House rules. They are:
        First, subject matter. ``An amendment must relate to the 
    subject matter under consideration.'' This amendment deals with the 
    exercise of authority by the IRS, the funding for which is included 
    in H.R. 7583. There is no holding by the Parliamentarian that, in a 
    similar case, would find the amendment to be nongermane. . . .
        ``The primary tests of germaneness are not exclusive though; an 
    amendment and the matter to which it is offered may be related to 
    some degree under the tests of subject matter, purpose, and 
    jurisdiction, and still not be considered under the precedents.'' 
    Neither of the precedents cited in either the rules and Deschler's 
    would indicate that the Ashbrook amendment is nongermane. . . .
        On the point he made regarding changing existing law, I would 
    call the Chair's attention to Revenue Procedure 7550. It clearly 
    cites the decision that he had indicated that is preserved by this 
    particular ruling, and that ruling is in effect prior to the time 
    that is listed in my amendment. My amendment does not require IRS 
    to make any new judgments not already being made or able to be made 
    pre-August 1978.
        Probably the best argument for defeating the point of order on 
    this amendment is that it has been adopted by the House in the 
    fiscal year 1980 Treasury appropriations bill and the fiscal year 
    1980 supplemental appropriations bill. Likewise, controversial 
    amendments restricting the use of funds appropriated in an 
    appropriations bill have been consistently adopted in the past, the 
    most well known of these, of course, being the Hyde amendment to 
    restrict Federal funds on abortion, and several amendments to 
    restrict the use of Federal funds to support the busing of school 
    children. . . .
        Mr. [Charles B.] Rangel [of New York]: I would like to speak in 
    support

[[Page 5624]]

    of the point of order. Mr. Chairman, this amendment is not a 
    limitation on the use of money but actually is legislation. What it 
    does in fact do is to nullify an administrative law court decision 
    after the date that is in the amendment, and it also restricts the 
    IRS from issuing rulings that would allow charitable organizations 
    to allow their contributors to deduct these charitable deductions 
    that are made. So what it actually does is nullify existing law, 
    and by doing that, it nullifies a Federal court decision. In 
    addition to that, Mr. Chairman, this amendment interferes with the 
    non-discretionary authority of the executive branch of Government. 
    As pointed out by my colleague, the gentleman from Ohio (Mr. 
    Stokes), the courts did not tell the IRS what they could or could 
    not do but mandated by giving guidelines that they must remove the 
    tax exemptions from institutions that were racially discriminating 
    against groups of people.
        In addition to that, Mr. Chairman, this amendment violates the 
    separation of powers. There is no question that the judiciary has 
    the obligation, the constitutional responsibility, to review 
    legislation enacted by this Congress and to give their opinions, 
    and if in fact we dislike any opinion given by the court, whether 
    it is the Green case, one or two, or any other judiciary decision, 
    we have the authority to legislate, but we cannot do that with an 
    appropriations bill. . . .
        The Chairman: (8) the Chair is prepared to rule.
---------------------------------------------------------------------------
 8. Richardson Preyer (N.C.).
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        The gentleman from Ohio [Mr. Stokes] makes the point of order 
    that the amendment offered by the gentleman from Ohio [Mr. 
    Ashbrook] is legislation on an appropriation bill in violation of 
    clause 2, rule XXI. . . .
        The gentleman from Ohio (Mr. Ashbrook) has cited precedents 
    relating to germaneness. The Chair is of the opinion that this is 
    not a germaneness question.
        The Chair is aware that in a currently binding Federal court 
    order and permanent injunction in the case of Green against Miller, 
    the Internal Revenue Service has been enjoined and restrained from 
    according tax-exempt status to, and from continuing the tax-exempt 
    status now enjoyed by, all Mississippi private schools or the 
    organizations that operate them which have been determined to 
    discriminate racially. This is the uncontroverted status of the law 
    as interpreted by the courts with respect to the authority of the 
    IRS in according tax-exempt status.
        As indicated on page 533 of the House Rules and Manual, on June 
    7, 1978, an amendment by the gentleman from California (Mr. 
    Panetta) denying the use of funds for the Treasury Department to 
    apply certain provisions of the Internal Revenue Code other than 
    under regulations and court decisions in effect on a prior date was 
    held to be legislation, since requiring an official to apply 
    interpretations no longer current or legal in order to render the 
    appropriation applicable. In the opinion of the Chair, the pending 
    amendment falls within the same category and is, therefore, 
    legislation in violation of clause 2, rule XXI.
        The Chair sustains the point of order.

[[Page 5625]]

Where Amendment Is Challenged as Changing Law, Proponent Has Burden of 
    Refuting

Sec. 22.29 The proponent of an amendment against which a point of order 
    has been raised and documented as constituting legislation on an 
    appropriation bill has the burden of proving that the amendment 
    does not change existing law.

    Precedents are few on the burden of proof where an amendment is 
challenged as being legislative, but by analogy to precedents under 
Rule XXI clause 2, requiring the committee or Member offering an 
amendment to show an authorization for a proposed appropriation, it may 
be concluded that the proponent of the amendment must prove to the 
satisfaction of the Chair that language which has been challenged is 
not legislative, after an initial argument has been made, pursuant to a 
point of order, that it does change existing law. The Chair so 
concluded in a ruling on July 17, 1975,(9) in sustaining a 
point of order against an amendment to H.R. 8597 (Treasury, Postal 
Service, and general governmental appropriations for fiscal 1976). The 
proceedings are discussed in Sec. 51.22, infra.
---------------------------------------------------------------------------
 9. 121 Cong. Rec. 23239, 94th Cong. 1st Sess.
---------------------------------------------------------------------------

Where Provision in Bill Challenged as Legislation, Committee Has Burden

Sec. 22.30 Where a point of order is raised against a provision in a 
    general appropriation bill as constituting legislation in violation 
    of Rule XXI clause 2, the burden of proof is on the Committee on 
    Appropriations to show that the language constitutes a valid 
    limitation under the precedents which does not change existing law.

    On Nov. 30, 1982,(10) a provision in a general 
appropriation bill prohibiting the use of funds therein by the Office 
of Management and Budget to ``interfere with'' the rulemaking authority 
of any regulatory agency was ruled out as legislation which would 
implicitly require that agency to make determinations not required by 
law in evaluating and executing its responsibilities mandated by law. 
In the course of its ruling, the Chair stated:
---------------------------------------------------------------------------
10. 128 Cong. Rec. 28063, 97th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Committee on Appropriations has not sustained the burden of 
    show

[[Page 5626]]

    ing that the proposed language would not change and augment the 
    responsibilities imposed by law on the Office of Management and 
    Budget and, therefore, [the Chair] sustains the point of order.

    The proceedings are discussed in

Sec. 52.43, infra.