[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[C. Provisions as "Changing Existing Law," Generally]
[Â§ 24. Construing Existing Law; Repealing Existing Law]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 5658-5665]
 
                               CHAPTER 26
 
    Unauthorized Appropriations; Legislation on Appropriation Bills
 
        C. PROVISIONS AS ``CHANGING EXISTING LAW,'' GENERALLY
 
Sec. 24. Construing Existing Law; Repealing Existing Law

    Generally, language in an appropriation bill proposing to repeal 
existing law is legislation and not in order. Similarly, an amendment 
in the form of a limitation but construing or interpreting existing law 
is legislation and not in order on an appropriation bill.
    It is important to note, however, that some amendments have been 
permitted which resulted in an application or use of funds different 
from that contemplated in existing law. This may occur where the 
language of the amendment is drafted strictly as a negative limitation 
or restriction on the use of funds, and does not explicitly change a 
formula for distribution or allocation of funds that is prescribed in 
existing law.(2)
---------------------------------------------------------------------------
 2. For discussion of criteria applicable in determining whether a 
        provision comprises language of ``negative limitation,'' see 
        Sec. 64, infra.
            Also of interest is a ruling on Mar. 4, 1954, discussed in 
        Sec. 74.3, infra. In that instance the Chair ruled that, where 
        an amendment to an appropriation bill provided that no part of 
        any appropriation in the bill be used for compensation of any 
        officer or employee of a designated bureau who for the purposes 
        of the Hatch Act, ``shall not be included within the 
        construction of the term ``officer'' or ``employee,'' the 
        language was in order as a limitation. The determinations of 
        employment status were, it should be noted, already required by 
        law.

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

[[Page 5659]]

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

General Rule

Sec. 24.1 Language in an appropriation bill proposing to repeal 
    existing law is legislation and not in order.

    On Jan. 31, 1936,(3) during consideration in the 
Committee of the Whole of the Interior Department appropriation bill 
(H.R. 10630), a point of order was raised against the following 
amendment:
---------------------------------------------------------------------------
 3. 80 Cong. Rec. 1308, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Roy E.] Ayers [of Montana]: Mr. Chairman, I offer an 
    amendment, which I send to the desk.
        The Clerk read as follows:

            Amendment offered by Mr. Ayers: Page 48, line 14, insert a 
        paragraph, as follows:
            ``That portion of section 1 of the act approved August 12, 
        1935 (49 Stat. 571-584), known as the Second Deficiency 
        Appropriation Act, fiscal year 1935, providing $806,000 for 
        construction, enlargement, or improvement of public-school 
        buildings as authorized by and in conformity with numerous acts 
        of the Seventy-fourth Congress, approved June 7, 1935, fiscal 
        year 1936, is hereby amended so as to repeal the provisions for 
        recoupment by the United States, on account of expenditures 
        thereunder, and the amounts appropriated for assistance of the 
        said public-school districts are hereby declared to be an 
        outright grant to the various public-school districts mentioned 
        therein.''

        Mr. [Edward T.] Taylor [of Colorado]: Mr. Chairman, I make a 
    point of order against the amendment on two grounds; first, it is 
    clearly legislation and has no business in this bill; and, 
    secondly, it is not germane, because we have considered and passed 
    the provision in the bill where it should have been offered.
        The Chairman: (4) The Chair is ready to rule. The 
    amendment offered by the gentleman from Montana [Mr. Ayers] 
    proposes to repeal legislation; therefore the point of order is 
    sustained.
---------------------------------------------------------------------------
 4. Robert L. Doughton (N.C.).
---------------------------------------------------------------------------

Limit on Number of Housing Units

Sec. 24.2 To an appropriation bill an amendment repealing a provision 
    of existing law (contained in a prior appropriation bill) which had 
    placed a limit upon the number of dwelling units which the Public 
    Housing Administration could authorize to be constructed in certain 
    years was held to be legislation.

[[Page 5660]]

    On Mar. 30, 1954,(5) during consideration in the 
Committee of the Whole of the independent offices appropriation bill 
(H.R. 8583), a point of order was raised against the following 
amendment:
---------------------------------------------------------------------------
 5. 100 Cong. Rec. 4128, 83d Cong. 2d Sess.
---------------------------------------------------------------------------

        Amendment offered by Mr. [Abraham J.] Multer [of Illinois]: On 
    page 29, at line 12, insert a new section:

            ``That part of Public Law 176 of the 83d Congress (an 
        appropriation measure), reading: `Provided further, That 
        notwithstanding the provisions of the United States Housing Act 
        of 1937, as amended, the Public Housing Administration shall 
        not, with respect to projects initiated after March 1, 1949, 
        (1) authorize during the fiscal year 1954 the commencement of 
        construction of in excess of 20,000 dwelling units or (2) after 
        the date of approval of this act, enter into any new 
        agreements, contracts, or other arrangements, preliminary or 
        otherwise, which will ultimately bind the Public Housing 
        Administration during fiscal year 1954 or for any future years 
        with respect to loans or annual contributions for any 
        additional dwelling units or projects unless hereafter 
        authorized by the Congress to do so, and during the fiscal year 
        1954 the Housing and Home Finance administrator shall make a 
        complete analysis and study of the low-rent public housing 
        program and, on or before February 1, 1954, shall transmit to 
        the Appropriations Committees of the House and Senate his 
        recommendations with respect to such low-rent public program,' 
        is hereby repealed.''

        Mr. [John] Phillips [of California]: Mr. Chairman, a point of 
    order.
        The Chairman: (6) The gentleman will state it.
---------------------------------------------------------------------------
 6. Louis E. Graham (Pa.).
---------------------------------------------------------------------------

        Mr. Phillips: Mr. Chairman, I make a point of order against the 
    amendment, that the Chair has already ruled against similar 
    amendments twice on the ground that it is legislation on an 
    appropriation bill. I make the same point now. It changes existing 
    law, Mr. Chairman. . . .
        The Chairman: The Chair is prepared to rule. The language of 
    the amendment is obnoxious to the rule prohibiting legislation on 
    an appropriation bill. It seeks to repeal existing legislation, and 
    therefore the amendment is itself legislation.
        The Chair sustains the point of order.

Ending Future Authorization

Sec. 24.3 In an appropriation bill, where an appropriation is 
    authorized by a law which would remain effective in the future, 
    words designating an appropriation as ``a final appropriation'' for 
    ``completing'' acquisition of certain land under authority of such 
    law were held to constitute legislation.

    On Mar. 30, 1954,(7) during consideration in the 
Committee of the Whole of the independent offices appropriation bill 
(H.R. 8538), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
 7. 100 Cong. Rec. 4128, 83d Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

[[Page 5661]]

            Land acquisition, National Capital park, parkway, and 
        playground system: As a final appropriation under authority of 
        the act of May 29, 1930 (46 Stat. 482), as amended, for 
        necessary expenses for the National Capital Planning Commission 
        for completing acquisition of land for the park, parkway, and 
        playground system of the National Capital, to remain available 
        until expended, $545,000, of which (a) $135,000 shall be 
        available for the purposes of section 1 (a) of said act of May 
        29, 1930, (b) $126,000 shall be available for the purposes of 
        section 1(b) thereof, and (c) $284,000 shall be available for 
        the purposes of section 4 thereof: Provided, That not exceeding 
        $26,450 of the funds available for land acquisition purposes 
        shall be used during the current fiscal year for necessary 
        expenses of the Commission (other than payments for land) in 
        connection with land acquisition.

        Mr. [Howard W.] Smith of Virginia: Mr. Chairman, a point of 
    order.
        The Chairman: (8) The gentleman will state it.
---------------------------------------------------------------------------
 8. Louis E. Graham (Pa.).
---------------------------------------------------------------------------

        Mr. Smith of Virginia: Mr. Chairman, I desire to interpose a 
    point of order to the language contained in line 17 on page 35: 
    ``as a final appropriation''; and on line 20 against the word 
    ``completing.'' . . .
        Mr. [John] Phillips [of California]: I will concede the point 
    of order.
        The Chairman: The Chair sustains the point of order.

Rescission of Contract Authority

Sec. 24.4 Language in an appropriation bill rescinding a contract 
    authorization carried in a prior appropriation act is legislation 
    and not in order.

    On May 1, 1951,(9) during consideration in the Committee 
of the Whole of the Department of the Interior appropriation bill (H.R. 
3790), a point of order was raised against the following provision:
---------------------------------------------------------------------------
 9. 97 Cong. Rec. 4662, 82d Cong. 1st Sess.
---------------------------------------------------------------------------

        For construction and improvement of facilities under the 
    jurisdiction of the Bureau of Mines, to remain available until 
    expended, $1,250,000: Provided, That the unused balance of the 
    contract authorization of $15,000,000 granted in the Interior 
    Department Appropriation Act, 1946, under the head ``Synthetic 
    liquid fuels,'' is hereby rescinded.
        Mr. [Cleveland M.] Bailey [of West Virginia]: Mr. Chairman, I 
    make a point of order.
        The Chairman: (10) The gentleman will state the 
    point of order.
---------------------------------------------------------------------------
10. Wilbur D. Mills (Ark.).
---------------------------------------------------------------------------

        Mr. Bailey: Mr. Chairman, I make the point of order against the 
    language contained in line 19, page 25, beginning with the word 
    ``Provided,'' and continuing through lines 19, 20, 21, and 22, 
    inclusive, on the ground that it is legislation on an appropriation 
    bill.
        Mr. [Michael J.] Kirwan [of Ohio]: Mr. Chairman, we concede the 
    point of order.
        The Chairman: The Chair sustains the point of order.

    Parliamentarian's Note: Rescissions or deferrals of budget au

[[Page 5662]]

thority contained in general appropriation bills of previously 
appropriated funds remain legislative despite jurisdiction conferred 
upon the Appropriations Committee in Rule X to report separate 
rescission bills under the Impoundment Control Act of 1974. The rules 
change in 1974, which gave the Appropriations Committee jurisdiction 
over rescissions of appropriations would not affect cases like the 1951 
ruling above, involving rescission of a contract authorization.

Waiver of Previous Limitation

Sec. 24.5 A limitation in an appropriation bill having become law, a 
    provision in a subsequent appropriation bill for that fiscal year 
    seeking to waive this limitation was conceded to be legislation and 
    was ruled out on a point of order.

    On Sept. 15, 1961,(11) during consideration in the 
Committee of the Whole of a supplemental appropriation bill (H.R. 
9169), a point of order was raised against the following provision:
---------------------------------------------------------------------------
11. 107 Cong. Rec. 19728, 87th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

                       Executive Office of the President

                          Council of Economic Advisers

                             Salaries and Expenses

            For an additional amount for ``Salaries and expenses,'' 
        $170,000: Provided, That the appropriations under this head 
        shall be available during the current fiscal year without 
        regard to the limitation on salaries appearing under this head 
        to the General Government Matters, Department of Commerce, and 
        Related Agencies Appropriation Act, 1962.

        Mr. [Clare E.] Hoffman of Michigan: Mr. Chairman, I make a 
    point of order against the language on page 8, lines 14 to 22 
    inclusive, on the ground that it is legislation on an appropriation 
    bill.
        Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make the further 
    point of order against the language that it, in effect, amends 
    previous law by waiving limitations. . . .
        Mr. [Albert] Thomas [of Texas]: I hope my colleagues will not 
    force us to offer an amendment. But we will accept it, if you 
    insist on it.
        The Chairman: (12) The Chair is ready to rule. The 
    gentleman from Texas concedes the point of order.
---------------------------------------------------------------------------
12. Oren Harris (Ark.).
---------------------------------------------------------------------------

        The point of order is sustained.

Repealing Restriction in Prior Appropriation Law

Sec. 24.6 An amendment to a supplemental appropriation bill, proposing 
    to repeal a provision of a prior appropriation act and having the 
    effect of

[[Page 5663]]

    changing restrictions on the use of funds under that prior act, was 
    held to be legislation and was ruled out as in violation of Rule 
    XXI clause 2.

    On Dec. 2, 1971,(13) during consideration in the 
Committee of the Whole of a supplemental appropriation bill (H.R 
11955), a point of order was raised against the following amendment:
---------------------------------------------------------------------------
13. 117 Cong. Rec. 44316, 92d Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [Thomas J.] Steed [of Oklahoma]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Steed of Oklahoma.
            On Page 15 after line 17 add the following sentence: The 
        first proviso in the second paragraph of title I of Public Law 
        92-48 is amended by striking the first proviso therein.

        Mr. [Neal] Smith of Iowa: Mr. Chairman, I make a point of order 
    against the amendment.
        The Chairman: (14) The gentleman will state his 
    point of order.
---------------------------------------------------------------------------
14. Jack B. Brooks (Tex.).
---------------------------------------------------------------------------

        Mr. Smith of Iowa: My point is that the amendment refers to a 
    provision that was in an appropriations act but is now a public 
    law. Therefore, the gentleman is trying to amend a public law, and 
    that would be legislation upon an appropriation bill.
        The Chairman: Does the gentleman from Oklahoma wish to be heard 
    on the point of order?
        Mr. Steed: Yes, Mr. Chairman. The amendment deals with an 
    office which is included in the bill and involves funds that are 
    under the jurisdiction of the provisions of this bill. It is a 
    limitation and deals with a limitation.
        Mr. [James G.] O'Hara [of Michigan]: Mr. Chairman, I ask to be 
    heard on the point of order. The provisions which the gentleman 
    from Oklahoma is now offering to strike was carried in the 
    Education Appropriation Act. An effort was made to strike the 
    provision out of the Education Appropriation Act on the ground it 
    was legislation on an appropriation. That point of order was 
    overruled. I do not see how an amendment offering to strike that 
    provision from the Education Appropriation bill could possibly be 
    legislation.
        The Chairman: The Chair is ready to rule. . . .
        Clearly, the amendment offered by the gentleman from Oklahoma 
    would repeal a provision in existing law and would thereby 
    constitute a change in the restrictions on the availability of 
    funds imposed by that law. The Chair holds that the amendment 
    constitutes legislation on an appropriation bill in violation of 
    clause 2, rule XXI, and sustains the point of order.

Repealing Expenditure Limit on Salaries and Expenses for Current Year

Sec. 24.7 A provision in an appropriation bill repealing a legislative 
    provision in a prior appropriation law that certain expenditures 
    during the fiscal year 1939 by the Na

[[Page 5664]]

    tional Bituminous Coal Commission ``shall not exceed an amount 
    equal to the aggregate receipts covered into the Treasury under the 
    provisions of'' a specified statute was held to be legislation on 
    an appropriation bill and not in order.

    On Mar. 22, 1939,(15) during consideration in the 
Committee of the Whole of a deficiency appropriation bill (H.R. 5219), 
a point of order was raised against the following provision:
---------------------------------------------------------------------------
15. 84 Cong. Rec. 3123, 76th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            The paragraph in the Second Deficiency Appropriation Act, 
        fiscal year 1938, under the caption ``National Bituminous Coal 
        Commission,'' is hereby amended by striking out the following 
        proviso: ``Provided, That expenditures during the fiscal year 
        1939 under this head and under the head `Salaries and expenses, 
        office of the Consumers' Counsel, National Bituminous Coal 
        Commission,' shall not exceed an amount equal to the aggregate 
        receipts covered into the Treasury under the provisions of 
        section 3 of the Bituminous Coal Act of 1937.''

        Mr. [J. William] Ditter [of Pennsylvania]: Mr. Chairman, I make 
    the point of order against the paragraph that it is legislation on 
    an appropriation bill.
        Mr. [Clifton A.] Woodrum of Virginia: Mr. Chairman, I concede 
    the point of order.
        The Chairman: (16) The point of order of the 
    gentleman from Pennsylvania is conceded by the gentleman from 
    Virginia, and is therefore sustained.
---------------------------------------------------------------------------
16. William P. Cole, Jr. (Md.).
---------------------------------------------------------------------------

Sums Appropriated ``Without Regard to'' Specified Statutes

Sec. 24.8 In an appropriation for purchases related to the reindeer 
    industry in Alaska, a provision appropriating sums for the 
    purchase, in such manner as the Secretary of the Interior shall 
    deem advisable and without regard to sections 3709 and 3744 of the 
    Revised Statutes, of specified items, was conceded to be 
    legislation and not in order.

    On Mar. 15, 1939,(17) the Committee of the Whole was 
considering H.R. 4852, an Interior Department appropriation The Clerk 
read as follows, and proceedings ensued as indicated below:
---------------------------------------------------------------------------
17. 84 Cong. Rec. 2789, 2790, 76th Cong. 1st Sess.
---------------------------------------------------------------------------

        Reindeer industry, Alaska: For the purchase, in such manner as 
    the Secretary of the Interior shall deem advisable and without 
    regard to sections 3709 and 3744 of the Revised Statutes, reindeer, 
    abattoirs, cold-storage plants . . . and communication and other 
    equipment, owned by nonnatives in Alaska, as authorized by the act 
    of

[[Page 5665]]

    September 1, 1937 (50 Stat. 900), $820,000 . . . Provided, That 
    under this appropriation not exceeding an average of $4 per head 
    shall be paid for reindeer purchased from nonnative owners: 
    Provided further, That the foregoing limitation shall not apply to 
    the purchase of reindeer located on Nunivak Island.
        Mr. [John C.] Schafer of Wisconsin: Mr. Chairman, I make the 
    point of order against the paragraph on the ground that it is 
    legislation on an appropriation bill unauthorized by law. In fact, 
    the language clearly indicates that it repeals the specific 
    provisions of existing law as incorporated in sections 3709 and 
    3744 of the Revised Statutes.
        The Chairman: (18) Does the gentleman from Oklahoma 
    desire to be heard?
---------------------------------------------------------------------------
18. Frank H. Buck (Calif.).
---------------------------------------------------------------------------

        Mr. [Jed] Johnson of Oklahoma: No; I concede the point of 
    order.
        The Chairman: The point of order is sustained.