[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[C. Provisions as "Changing Existing Law," Generally]
[Â§ 31. Transfers or Disposition of Property]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 5764-5771]
 
                               CHAPTER 26
 
    Unauthorized Appropriations; Legislation on Appropriation Bills
 
        C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
 
Sec. 31. Transfers or Disposition of Property

Transfer of Federal Property From One Agency to Another Without 
    Exchange of Funds

Sec. 31.1 A provision of a general appropriation bill authorizing the 
    transfer of title to power facilities from one agency of government 
    to another without exchange of funds was conceded and held to 
    constitute legislation in violation of Rule XXI clause 2.

    On Apr. 24, 1951,(1) during consideration in the 
Committee of the Whole of the Interior Department appropriation bill 
(H.R. 3790), a point of order was raised against the following 
provision:
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 1. 97 Cong. Rec.  4301, 82d Cong. 1st Sess.
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        The Clerk read as follows:

              Transfer of Certain Facilities, Denison Dam Project

            The Secretary of the Army is hereby authorized to transfer 
        to the Secretary of the Interior under arrangements 
        satisfactory to said Secretaries, without exchange of funds, 
        all right, title, and interest, including rights-of-way, of the 
        Department of the Army in and to the Denison-Payne 132-kilovolt 
        transmission line.

        Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of 
    order against the language appearing in the bill beginning line 20, 
    page 4, over to line 2, page 5, on the ground that it is 
    legislation in an appropriation bill.
        The Chairman: (2) Does the gentleman from Washington 
    (Mr. Jackson) desire to be heard on the point of order?
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 2. Wilbur D. Mills (Ark.).
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        Mr. [Henry M.] Jackson of Washington: Mr. Chairman, I concede 
    the point of order.
        The Chairman: The point of order is sustained.

Excess Property to Department of the Interior

Sec. 31.2 A provision in a general appropriation bill author

[[Page 5765]]

    izing transfers of excess property by federal agencies to the 
    Department of the Interior at the request of the Secretary of the 
    Interior without reimbursement or transfer of funds when required 
    by the Interior Department for operations conducted in territories 
    and island possessions was conceded to constitute legislation and 
    ruled out of order.

    On May 2, 1951,(3) during consideration in the Committee 
of the Whole of the Interior Department appropriation bill (H.R. 3790), 
a point of order was raised against the following provision:
---------------------------------------------------------------------------
 3. 97 Cong. Rec. 4739, 82d Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Sec. 111. Transfers to the Department of the Interior, 
        pursuant to the Federal Property and Administrative Services 
        Act of 1949, of equipment, material and supplies, excess to the 
        needs of Federal agencies may be made at the request of the 
        Secretary without reimbursement or transfer of funds when 
        required by the Department for operations conducted in 
        Territories and island possessions.

        Mr. [Kenneth B.] Keating  [of New York]: Mr. Chairman, I make a 
    point of order against section 111 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: (4)The point of order is sustained.
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 4. Wilbur D. Mills (Ark.).
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Federal Property Transferred to Territory

Sec. 31.3 A provision in an appropriation bill authorizing property of 
    the Public Health Service to be transferred to the Territory of 
    Alaska without reimbursement in the discretion of the Surgeon 
    General was conceded to be legislation and held not in order.

    On Mar. 25, 1952,(5) during consideration in the 
Committee of the Whole of the federal security appropriation bill (H.R. 
7151), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
 5. 98 Cong. Rec. 2859, 82d Cong. 2d Sess.
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        The Clerk read as follows:

            Disease and sanitation investigations and control, 
        Territory of Alaska: To enable the Surgeon General to conduct, 
        in the Service, and to cooperate with and assist the Territory 
        of Alaska in the conduct of, activities necessary in the 
        investigation, prevention, treatment, and control of diseases, 
        and the establishment and maintenance of health and sanitation 
        services pursuant to and for the purposes specified in sections 
        301, 311, 314 (without regard to the provisions of subsections 
        (d), (f), (h), and (j) and the limitations set forth in 
        subsection (c) of such section), 361,

[[Page 5766]]

        363, and 704 of the Act, including the purchase of one 
        passenger motor vehicle, and hire, operation, and maintenance 
        of aircraft, $1,200,000: Provided, That property of the Public 
        Health Service located in Alaska and used in carrying out the 
        activities herein authorized may be transferred, without 
        reimbursement, to the Territory of Alaska at the discretion of 
        the Surgeon General.

        Mr. [John] Phillips [of California]: Mr. Chairman, I wish to 
    make a point of order against the proviso appearing on page 21, 
    beginning with line 9; but pending the Chairman's ruling, I would 
    like to ask a question.
        May I ask the chairman of the subcommittee, or the ranking 
    minority member, if either one can explain the provision which 
    gives the Surgeon General, at his own discretion, the right to 
    transfer property of the United States to the Territory of Alaska. 
    It seems to me a delegation of authority of the Congress, 
    especially when there is no indication of the value of the 
    property, might be dangerous. I cannot find anything in the report, 
    nor can I recall that there was anything in the bill of the 
    preceding session.
        I make the point of order this is legislation on an 
    appropriation bill, and a delegation of authority. May I ask the 
    chairman what this is all about?
        Mr. [John E.] Fogarty [of Rhode Island]: As far as the 
    committee is concerned, I may say that a point of order lies there 
    and we are willing to accept it. I cannot give the gentleman the 
    figures. . . .
        The Chairman: (6) The gentleman from California [Mr. 
    Phillips] makes a point of order against the language on page 21, 
    line 9 through 13, beginning with the word ``Provided.'' The 
    gentleman from Rhode Island [Mr. Fogarty] concedes the point of 
    order. The point of order is sustained.
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 6. William M. Colmer (Miss.).
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Appropriation of Property

Sec. 31.4 Existing law authorizing the appropriation of funds for a 
    certain purpose ``including U.S. contributions in funds or 
    otherwise'' does not permit inclusion in an amendment to a general 
    appropriation bill of language directly appropriating property in 
    lieu of funds, such a matter being within the legislative 
    jurisdiction of another committee of the House and not being an 
    appropriation of revenue.

    On June 3, 1944,(7) during consideration in the 
Committee of the Whole of a general appropriation bill (H.R. 4937), a 
point of order was raised against the following amendment:
---------------------------------------------------------------------------
 7. 90 Cong. Rec. 5246, 5247, 78th Cong. 2d Sess.
---------------------------------------------------------------------------

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

            Amendment offered by Mr. Case: Page 5, line 11, strike out 
        ``$450,000,000'' and insert ``$428,300,000 in funds and 
        61,740,000 pounds of raw wool from

[[Page 5767]]

        stocks owned by the Commodity Credit Corporation.''

        Mr. [Clarence] Cannon of Missouri: Mr. Chairman, I desire to 
    make a point of order against the amendment. It is not germane, and 
    is legislation on an appropriation bill. It involves legislation 
    pertaining to the appropriation of wool whereas the pending bill 
    relates exclusively to the appropriation of money.
        Mr. Case: Mr. Chairman, may I be heard on the point of order?
        The Chairman: (8) The Chair will hear the gentleman.
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 8. William M. Whittington (Miss.).
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        Mr. Case: Mr. Chairman, I have in my hand Public Law 267 of the 
    Seventy-eighth Congress, which is the U.N.R.R.A. Act, under which 
    the appropriation in this section is proposed. The first paragraph 
    of that Act reads as follows:

            Resolved, etc., That there is hereby authorized to be 
        appropriated to the President such sums, not to exceed 
        $1,350,000,000 in the aggregate, as the Congress may determine 
        from time to time to be appropriate for participation by the 
        United States (including contributions in funds or otherwise 
        and all necessary expenses related thereto) in the work of the 
        United Nations Relief and Rehabilitation Administration.

        Further, section 6 of the act specifically sets forth that 
    Congress may determine the character of our contributions as well 
    as the amount by using this language:

            In adopting this joint resolution the Congress does so with 
        the following reservation:
            ``That in the case of the United States the appropriate 
        constitutional body to determine the amount and character and 
        time of the contributions of the United States is the Congress 
        of the United States.''

        I submit to the Chair that the basic act under which this 
    entire appropriation is authorized specifically, in the first 
    paragraph, uses the words ``including contributions in funds or 
    otherwise.'' Unless something like raw wool or something else might 
    be offered as part of the aggregate of the $1,350,000,000, the 
    words ``or otherwise'' as contrasted with ``funds'' would have no 
    meaning.
        That is buttressed by the language in section 6, which provides 
    that the Congress may determine the amount, which relates to the 
    aggregate, and the character. Obviously the word ``character'' is 
    intended to include contributions of character other than money.
        Mr. Cannon of Missouri: The authorization for this 
    appropriation is Public Law 267 of the Seventy-eighth Congress, an 
    act which authorizes the appropriation of sums of money. We are 
    authorized under this law to appropriate money and nothing else. 
    Later on, after the money is appropriated then, as the gentleman 
    suggests, if you want to substitute commodities, that is 
    permissible, but the authorization is to appropriate money, and 
    money only.
        Any proposition to appropriate commodities is not authorized by 
    law and is not germane to the bill.
        Mr. Case: Mr. Chairman, I agree that the basic authorization 
    for this appropriation is Public Law 267, which is what I cited, 
    but the gentleman from Missouri read only a part of the first 
    paragraph and ignored the last part of it to which I called the 
    gentleman's at

[[Page 5768]]

    tention, where it specifically provides for ``funds or otherwise''; 
    and he certainly ignored section 6, which reserved for Congress the 
    right to determine not only the amount but the character of the 
    contribution.
        The Chairman: The authorization, as has been stated, is under 
    Public Law 267, Seventy-eighth Congress. The first paragraph of 
    that law reads:

            That there is hereby authorized to be appropriated to the 
        President such sums, not to exceed $1,350,000,000 in the 
        aggregate as the Congress may determine from time to time to be 
        appropriate for participation by the United States (including 
        contributions in funds or otherwise).

        The Chair is of the opinion that inasmuch as this is an 
    appropriation, and inasmuch as the Committee on Appropriations is 
    limited to making appropriations of money, this bill could provide 
    only for an appropriation of money, and that if Congress should 
    determine to make other property owned by the Government available, 
    it would have to be under legislation submitted to the Congress by 
    an appropriate committee.
        In view of that interpretation, the Chair is constrained to 
    sustain the point of order.

Transfer of Facilities and Property Rights

Sec. 31.5 Language in an appropriation bill transferring certain 
    facilities of the Fort Peck Project, Montana, from the Department 
    of the Army to the Department of the Interior was conceded to be 
    legislation on an appropriation bill and held not in order.

    On May 1, 1951,(9) during consideration in the Committee 
of the Whole of the Interior Department appropriation bill (H.R. 3790), 
the following point of order was raised:
---------------------------------------------------------------------------
 9. 97 Cong. Rec. 4659, 82d Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of 
    order against the language on page 18, lines 7 to 21, on the ground 
    that it is legislation on an appropriation bill.
        The language is as follows:

           Transfer of Certain Facilities, Fort Peck Project, Montana

            The Secretary of the Army is hereby authorized to transfer 
        to the Department of the Interior without exchange of funds, 
        all of the right, title, and interest of the Department of the 
        Army in and to the following facilities, including rights-of-
        way (except that portion of the rights-of-way within the Fort 
        Peck Reservoir area), but there shall be reserved the right to 
        use the power facilities for the purpose of transmitting power 
        to the Fort Peck project during emergency periods when the Fort 
        Peck power plant is not functioning: (a) the Fort Peck-Rainbow 
        (Great Falls) 161-kilovolt transmission line; (b) the Rainbow 
        (Great Falls) terminal facilities; and (c) the Fort Peck-
        Whatley 50-kilovolt-transmission line and substation.

        Mr. [Michael J.] Kirwan [of Ohio]: Mr. Chairman, I submit that 
    the point

[[Page 5769]]

    of order made by the gentleman from New York comes too late.
        The Chairman: (10) The point of order made by the 
    gentleman from New York (Mr. Taber) is timely. Does the gentleman 
    from Ohio desire to be heard on the point of order?
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10. Wilbur D. Mills (Ark.).
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        Mr. Kirwan: Mr. Chairman, we concede the point of order.
        The Chairman: The point of order is sustained.

District of Columbia, Transfer of Hospitals Between Agencies

Sec. 31.6 Language in the District of Columbia appropriation bill 
    appropriating for hospitals and sanatoria coupled with language 
    transferring hospitals and sanatoria from the Board of Public 
    Welfare to the Board of Commissioners was held to be legislative in 
    nature and not in order on an appropriation bill.

    On Apr. 2, 1937,(11) The following proceedings took 
place:
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11. 81 Cong. Rec. 3108, 75th Cong. 1st Sess.
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            For the following hospital and sanatoria, which, on and 
        after July 1, 1937, shall be under the direction and control of 
        the health department of the District of Columbia and subject 
        to the supervision of the Board of Commissioners.

        Mrs. [Mary T.] Norton [of New Jersey]: Mr. Chairman, I make the 
    point of order against the language on page 46 beginning in line 1, 
    after the word ``sanatoria'', ending with the word 
    ``Commissioners'', in line 5 of the same page, that it is clearly 
    legislation on a general appropriation bill, which is contrary to 
    the rules of the House.
        The Chairman: (12) Does the gentleman from 
    Mississippi desire to be heard on the point of order?
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12. Jere Cooper (Tenn.).
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        Mr. [Ross A.] Collins [of Mississippi]: I do not, Mr. Chairman.
         The Chairman: The gentlewoman from New Jersey makes a point of 
    order against certain language in the first paragraph on page 46. 
    Under existing law these hospitals and institutions are under the 
    Board of Public Welfare. This provision seeks to transfer these 
    hospitals and institutions to the Department of Health. It is 
    obviously legislation on a general appropriation bill.
        The Chair therefore sustains the point of order.

No Property To Be Withheld From Distribution

Sec. 31.7 Where existing law directed a federal official to provide for 
    the sale of certain government property to private organizations in 
    ``necessary'' amounts, but did not require that all such property 
    shall be distributed by sale, an amendment to a general 
    appropriation bill providing that no such property shall be 
    withheld from

[[Page 5770]]

    distribution from qualifying purchasers was ruled out as 
    legislation requiring disposal of all property and restricting 
    discretionary authority to determine ``necessary'' amounts and not 
    constituting (as required by the Holman rule) a certain 
    retrenchment of funds in the bill.

    On Aug. 7, 1978,(13) during consideration in the 
Committee of the Whole of the Department of Defense appropriation bill 
(H.R. 13635), a point of order was sustained against the following 
amendment:
---------------------------------------------------------------------------
13. 124 Cong. Rec. 24707, 24708, 95th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. John T. Myers [of Indiana]: On 
        page 8, after line 10, add the following new section:

            None of the funds appropriated or otherwise made available 
        in this Act shall be obligated or expended for salaries or 
        expenses during the current fiscal year in connection with the 
        demilitarization of any arms as advertised by the Department of 
        Defense, Defense Logistics Agency sale number 31-8118 issued 
        January 24, 1978, and listed as ``no longer needed by the 
        Federal Government'' and that such arms shall not be withheld 
        from distribution to purchasers who qualify for purchase of 
        said arms pursuant to title 10, United States Code, section 
        4308. . . .

        Mr. [Abner J.] Mikva [of Illinois]: Mr. Chairman, I make a 
    point of order on the amendment on the ground that I believe that 
    it is legislation within a general appropriation bill and, 
    therefore, violates the rules of the House. . . .
        Mr. John T. Myers: Mr. Chairman, this is a simple limitation 
    amendment. It merely limits the Secretary of the Treasury to 
    continue to carry out existing law. It does not provide any new 
    law. It simply says that the Secretary of the Treasury shall carry 
    out the prevailing, existing law. . . .
        Mr. [John M.] Ashbrook [of Ohio]: Mr. Chairman, rule 21, clause 
    2, of the Rules of the House [House Rules and Manual pages 426-427] 
    specifies that an amendment to an appropriation bill is in order if 
    it meets certain tests, such as:
        First. It must be germane;
        Second. It must be negative in nature;
        Third. It must show retrenchment on its face;
        Fourth. It must impose no additional or affirmative duties or 
    amend existing law.
        First. [The amendment] is germane. As the amendment applies to 
    the distribution of arms by the Defense Logistics Agency, it is not 
    exclusively an Army of civilian marksmanship amendment, so should 
    not be placed elsewhere in the bill. . . .
        Second. It is negative in nature. It limits expenditure of 
    funds by the Defense Department by prohibiting the destruction and 
    scrapping of arms which qualify for sale through the civilian 
    marksmanship program, which is a division of the executive created 
    by statute.
        Third. It shows retrenchment on its face. Retrenchment is 
    demonstrated in

[[Page 5771]]

    that the Department of Defense if prohibited from expending funds 
    to destroy surplus military arms, and that the arms previously 
    earmarked for destruction will be made available in accordance with 
    existing statute. . . . The House, in adding this amendment, will 
    secure additional funds for the Treasury which the General 
    Accounting Office has determined is adequate to pay costs of 
    handling the arms. For example, the M-1 rifles are to be sold at a 
    cost of $110 each. These are the arms most utilized by the civilian 
    marksmanship program. The Defense Department will not be required 
    to spend additional funds to process the sale of additional arms. . 
    . .
        . . . [The amendment] does not impose additional or affirmative 
    duties or amend existing law. . . .
        Regulations issued . . . AR 725-1 and AR 920-20 provide for the 
    issuance of arms by application and qualification through the 
    Director of Civilian Marksmanship. The DCM shall then submit sale 
    orders for the Armament Readiness Military Command [ARMCOM] to fill 
    the requests of these qualified civilians. Thus, the amendment 
    simply requires the performance of duties already imposed by the 
    Army's own regulation. . . .
        Mr. Mikva: Mr. Chairman, I particularly call attention of the 
    Chair to the second half of the amendment, which imposes an 
    affirmative duty on the Secretary, saying that such arms shall not 
    be withheld from distribution to purchasers who qualify for 
    purchase of said arms pursuant to title 10, United States Code, 
    section 4308.
        Under the general existing law, there are all kinds of 
    discretions that are allowed to the Secretary to decide whether or 
    not such arms shall be distributed. Under this amendment, the 
    existing law is to be changed and those arms may not be withheld. 
    The practical purpose is to turn loose 400,000 to 500,000 rifles 
    into the body politic.
        But the parliamentary effect is clearly to change the existing 
    law under which the Secretary can exercise all kinds of discretion 
    in deciding whether or not those arms will be distributed. Under 
    this amendment it not only limits the fact that the funds may be 
    obligated but it specifically goes on to affirmatively direct the 
    Secretary to distribute such arms under title X, which is an 
    affirmative obligation, which is exactly the kind of obligation the 
    rules prohibit, and I renew my point of order. . . .
        The Chairman:(14) The Chair is ready to rule.
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14. Daniel D. Rostenkowski (Ill.).
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        The Chair has read the section to which the gentleman refers, 
    title 10, United States Code, section 4308, and is of the opinion 
    that it does not require that all firearms be distributed to 
    qualified purchasers. The Chair further feels that while the first 
    part of the amendment is a limitation, the last part of the 
    amendment is a curtailment of Executive discretion, and the Chair 
    sustains the point of order.