[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[D. Provisions as Changing Existing Law: Appropriations Subject to Conditions]
[Â§ 50. Conditions Imposing Additional Duties]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 6019-6028]
 
                               CHAPTER 26
 
    Unauthorized Appropriations; Legislation on Appropriation Bills
 
   D. PROVISIONS AS CHANGING EXISTING LAW: APPROPRIATIONS SUBJECT TO 
                               CONDITIONS
 
Sec. 50. Conditions Imposing Additional Duties

    Where a provision in an appropriation bill or amendment thereto 
seeks to impose on a federal official substantial duties that are 
different from or in addition to those already contemplated in law, the 
provision is frequently ruled out as legislative in nature. This 
difficult area is discussed more fully in Sec. 51 through 63, infra. 
The present section focuses largely on those instances where such new 
duties result from the imposition of certain types of conditions. Such 
conditions, it will be seen, are generally those which must be 
determined by some official to have been met, before the appropriation 
in question can become effective.
    Generally, an amendment forbidding expenditure of an appropriation 
unless action contrary to existing law is taken is legislation and is 
not in order as a limitation.(1)
---------------------------------------------------------------------------
 1. See, for example, Sec. 50.4, infra.
            The same would be true of an amendment conditioning 
        expenditure on actions for which no authority in law exists.
---------------------------------------------------------------------------

    Thus, while it is in order on a general appropriation bill to 
prohibit the availability of funds therein for a certain activity, that 
prohibition may not be made contingent upon the performance of a new 
affirmative duty on the part of a federal 
official.                          -------------------

Attached to Otherwise Valid Limitation

Sec. 50.1 A provision in a paragraph of the legislative ap

[[Page 6020]]

    propriation bill prohibiting the availability of funds therein for 
    the House Library unless and until arrangements have been made to 
    phase out its operations by the end of fiscal 1974 was held to 
    impose additional duties on the Clerk and was ruled out as 
    legislation in violation of Rule XXI clause 2.

    On Apr. 17, 1973,(2) during consideration in the 
Committee of the Whole of the legislative branch appropriation bill 
(H.R. 6691), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
 2. 119 Cong. Rec. 12780, 12781, 93d Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [Wayne L.] Hays [of Ohio]: Mr. Chairman, I make a point of 
    order against (certain) language on page 3, ``Office of the 
    Clerk,'' . . . [on] the ground that it is legislation on the 
    appropriation bill.
        The portion of the bill to which the point of order relates is 
    as follows:

                              Office of the Clerk

            For the Office of the Clerk, including not to exceed 
        $265,572 for the House Recording Studio, $3,264,730: Provided, 
        That no part of this amount shall be available for the House 
        Library--Document Room (in the Cannon House Office Building) 
        unless and until appropriate arrangements have been made to 
        phase out and terminate its operations not later than the close 
        of the fiscal year 1974.

        The Chairman: (3) Does the gentleman from Texas wish 
    to be heard on the point of order?
---------------------------------------------------------------------------
 3. John M. Murphy (N.Y.).
---------------------------------------------------------------------------

        Mr. [Robert R.] Casey of Texas: Yes; Mr. Chairman.
        The Chairman: The Chair will hear the gentleman.
        Mr. Casey of Texas: Mr. Chairman, in my opinion it is not 
    legislation on an appropriation bill, but rather in the form of a 
    limitation. I think it is wholly within the jurisdiction of the 
    committee to include this provision in the bill.
        The Chairman: The Chair observes that the language ``that no 
    part of this amount shall be available for the House Library--
    Document Room (in the Cannon House Office Building)'' is in the 
    form of a limitation. However, the language which follows--``unless 
    and until appropriate arrangements have been made to phase out and 
    terminate its operations not later than the close of the fiscal 
    year 1974'' poses additional duties and therefore is legislation on 
    an appropriation bill, and because of that language the point of 
    order is sustained.

Determination of State Compliance With Conditions

Sec. 50.2 An amendment to a general appropriation bill in the form of a 
    limitation providing that no part of the money therein appropriated 
    shall be paid to any state unless and until the Secretary of 
    Agriculture was satisfied

[[Page 6021]]

    that the state had complied with certain conditions was held to be 
    legislation and not in order.

    On Apr. 23, 1937,(4) during consideration in the 
Committee of the Whole of the Agriculture Department appropriation bill 
(H.R. 6523), a point of order was raised against the following 
amendment:
---------------------------------------------------------------------------
 4. 81 Cong. Rec. 3783, 3784, 75th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. [Jesse P.] Wolcott [of Michigan]: 
        Page 72, line 13, after the word ``probation'', insert 
        ``Provided further, That no part of the money herein 
        appropriated shall be paid to any State unless and until, to 
        the satisfaction of the Secretary of Agriculture, such State 
        shall have provided by law or regulation modern means and 
        devices to safeguard against accidents and the loss of life on 
        highway projects within such State.''

        Mr. [Clarence] Cannon of Missouri: Mr. Chairman, I make the 
    point of order against the amendment. It is legislation under the 
    guise of a limitation. The amendment provides affirmative direction 
    which is clearly legislation on an appropriation bill.
        Mr. Wolcott: Mr. Chairman, I would like to be heard on the 
    point of order.
        The Chairman: (5) The Chair will be pleased to hear 
    the gentleman from Michigan.
---------------------------------------------------------------------------
 5. Franklin W. Hancock (N.C.).
---------------------------------------------------------------------------

        Mr. Wolcott: Mr. Chairman, I call the attention of the Chair to 
    the fact we have previously authorized appropriations to be made 
    under the Federal Highway Act which was passed and approved by the 
    President on July 11, 1916. Yearly there is authorized under that 
    act an appropriation of $125,000,000 which is disbursed according 
    to regulations set up not only by the Congress in the organic act 
    but also by regulations of the Bureau of Public Roads. If the 
    Bureau of Public Roads under the terms of the act can withhold any 
    funds which have been authorized by the Congress from any of the 
    States by reason of a regulation which it might set up, likewise 
    the Bureau can limit the expenditure within any State by providing 
    certain traffic safeguards to those using the highways as a 
    condition precedent to the spending of Federal funds in the 
    construction and maintenance of Federal-aid roads. For this reason 
    my amendment is purely a limitation upon the distribution among and 
    the use of the highway funds by the States.
        The Chairman: The Chair is ready to rule.
        The Chair sustains the point of order on the ground that 
    although the amendment is drawn in the guise of a limitation, it 
    constitutes new legislation in that it imposes additional duties 
    upon the Secretary.

    Parliamentarian's Note: It should be noted that the Chair based its 
decision on the fact that additional duties were imposed on the 
Secretary, rather than on whatever actions might be required on the 
part of states to qualify as recipients of the funds. The latter 
consideration as a pos

[[Page 6022]]

sible basis for a point of order is discussed in Sec. Sec. 53 and 54, 
infra.

Determination by Secretary as to Authorization

Sec. 50.3 Language in a general appropriation bill in the form of a 
    limitation providing that no part of a certain appropriation shall 
    be available until it is determined by the Secretary of the 
    Interior that authorization therefor has been approved by the 
    Congress was held to constitute legislation on an appropriation 
    bill and not in order.

    On May 17, 1937,(6) the Committee of the Whole was 
considering H.R. 6958, an Interior Department appropriation bill. The 
Clerk read as follows:
---------------------------------------------------------------------------
 6. 81 Cong. Rec. 4687-89, 75th Cong. 1st Sess.
---------------------------------------------------------------------------

        Central Valley project, California, $12,500,000, together with 
    the unexpended balance of the appropriation for this project 
    contained in the First Deficiency Act, fiscal year 1936: Provided, 
    That no part of this appropriation shall be available for 
    construction of such project until it is determined by the 
    Secretary of the Interior, upon approval, as to legality by the 
    Attorney General, that authorization therefor has been approved by 
    act of Congress.
        Mr. [Frank H.] Buck [of California]: Mr. Chairman, I make a 
    point of order against the language beginning in line 24 with the 
    word ``Provided''.
        Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of 
    order against the entire paragraph.
        The Chairman: (7) Does the gentleman from New York 
    make a point of order against the entire paragraph?
---------------------------------------------------------------------------
 7. Jere Cooper (Tenn.).
---------------------------------------------------------------------------

        Mr. Taber: I do.
        The Chairman: The gentleman from California made a point of 
    order against the proviso?
        Mr. Buck: Against the proviso.
        The Chairman: The gentleman from California makes a point of 
    order against the proviso appearing in line 24, page 81. The 
    gentleman from New York [Mr. Taber] makes a point of order against 
    the entire paragraph. Of course, that presents to the Chair the 
    necessity of ruling upon the point of order as it relates to the 
    entire paragraph, because if any part of a paragraph is subject to 
    a point of order it naturally follows that the entire paragraph is 
    subject to a point of order. . . .
        It appears to the Chair there can be no doubt that the language 
    appearing in the proviso is legislation on an appropriation bill. 
    The language imposes additional duties upon two executive officers 
    of the Government, the Secretary of the Interior and the Attorney 
    General. Therefore, the language in the proviso constituting 
    legislation on an appropriation bill, in violation of the rules of 
    the House, and a point of order being good as to part of a 
    paragraph, it naturally applies to the entire paragraph. The Chair, 
    therefore, sus

[[Page 6023]]

    tains the point of order made by the gentleman from New York as to 
    the entire paragraph.

Directives to the President

Sec. 50.4 An amendment providing that none of the money appropriated in 
    a section of a bill shall be paid to persons in a certain category 
    unless hereafter appointed or reappointed by the President and 
    confirmed by the Senate was held to be legislation on an 
    appropriation bill and not in order.

    On July 26, 1951,(8) during consideration in the 
Committee of the Whole of a general appropriation bill (H.R. 4740), a 
point of order was raised against the following amendment:
---------------------------------------------------------------------------
 8. 97 Cong. Rec. 8962, 8963, 82d Cong. 1st Sess.
---------------------------------------------------------------------------

        Amendment offered by Mr. [John] Phillips [of California]: On 
    page 58, following line 14, add a new section to be numbered 109:

            None of the money appropriated in title I of this act shall 
        be paid to the head of any executive department who, within a 
        period of 5 years preceding this appointment, was a partner in, 
        or a member of a professional firm which derived any part of 
        its income from representing, or acting for a foreign 
        government, or who, acting as an individual, derived income 
        from such representation, unless hereafter appointed or 
        reappointed by the President and confirmed by the Senate.

        Mr. [John J.] Rooney [of New York]: Mr. Chairman, I am 
    constrained to make the point of order against this proposed 
    amendment that it is legislation on an appropriation bill, in 
    violation of the rules of the House.
        I direct the Chair's attention to Cannon's Precedents of the 
    House of Representatives, volume 7, section 1632, which reads as 
    follows:

            An amendment forbidding expenditure of an appropriation 
        unless action contrary to existing law is taken is legislation 
        and is not in order as a limitation.
            An amendment may not, under guise of limitation, provide 
        affirmative legislation on an appropriation bill. . . .

        Mr. Chairman, I also call attention to section 1634 of the same 
    volume of Cannon's Precedents, which holds that--

            Professed limitations not to become effective ``unless'' or 
        ``until'' affirmative action was taken were held to be out of 
        order in an appropriation bill. . . .

        Mr. [John M.] Vorys [of Ohio]: Mr. Chairman, of course the 
    author of the amendment, I presume, has the right to concede the 
    point of order, insofar as he is concerned, but it strikes me that 
    there is a substantial difference between the present amendment and 
    the one which was cited from the precedents. In that case a new law 
    would be required--an 8-hour law. The present amendment in the part 
    following the word ``unless'' merely recites what is existing law 
    and in our Constitution, and that is that if someone is appointed 
    or reappointed and confirmed by the other body, he then has the 
    office. . . .

[[Page 6024]]

        The provision following the word ``unless'' merely recites what 
    is existing law under the Constitution, to wit, the appointment by 
    the President of an officer and his confirmation by the Senate. No 
    additional duties are required. There is a great deal of difference 
    between that and the requirement of the amendment cited from the 
    precedents that an 8-hour law be enacted before the amendment could 
    become effective. . . .
        The Chairman: (9) The Chair is prepared to rule on 
    the point of order. . . .
---------------------------------------------------------------------------
 9. Jere Cooper (Tenn.).
---------------------------------------------------------------------------

        The Chair has listened to the argument presented and has 
    followed the precedents cited by the gentleman from New York [Mr. 
    Rooney], and is of the opinion that the gentleman has correctly 
    stated the precedents appearing in section 1632 of Cannon's 
    Precedents. . . .
        The gentleman also cites section 1634 of Cannon's Precedents, 
    to which the Chair referred a moment ago in passing upon a point of 
    order made on a previous amendment offered.
        In response to the observation made by the gentleman from Ohio 
    [Mr. Vorys], the Chair thinks he should state that the Chair does 
    not know any provision of law requiring the President of the United 
    States to submit the name of one of his Cabinet officers to the 
    Senate for confirmation after that Cabinet officer has been 
    appointed and confirmed by the Senate and is now acting and 
    serving.
        The Chair invites attention to the last part of the amendment 
    presented: ``Unless hereafter appointed or reappointed by the 
    President and confirmed by the Senate.'' That would clearly impose 
    a duty upon the President of the United States to reappoint a 
    Cabinet officer and submit the name of that appointee to the Senate 
    for confirmation. Therefore, that would clearly provide legislation 
    on an appropriation bill, in violation of the rules of the House, 
    and the Chair sustains the point of order.

Sec. 50.5 A paragraph in a foreign aid appropriation bill prohibiting 
    the use of funds to pay for services performed abroad under 
    contract ``unless the President shall have promulgated'' security 
    regulations requiring certain investigations to be made, was ruled 
    out as legislation in violation of Rule XXI clause 2.

    On June 4, 1970,(10) during consideration in the 
Committee of the Whole of the foreign assistance appropriation bill 
(H.R. 17867), a point of order was raised against the following 
provision:
---------------------------------------------------------------------------
10. 116 Cong. Rec. 18405, 18406, 91st Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Sec. 111. None of the funds appropriated or made available 
        by this or any predecessor Act for the years subsequent to 
        fiscal year 1962 for carrying out the Foreign Assistance Act of 
        1961, as amended, may be used to make payments with respect to 
        any contract for the performance of services outside the United 
        States

[[Page 6025]]

        by United States citizens unless the President shall have 
        promulgated regulations that provide for the investigation of 
        such citizens for loyalty and security to the extent necessary 
        to protect the security and other interests of the United 
        States: Provided, That such regulations shall require that any 
        such United States citizen who will have access, in connection 
        with the performance of such services, to information or 
        material classified for security reasons shall be subject to 
        such investigation as may otherwise be provided by law and 
        executive order.

        The Chairman:(11) or what purpose does the gentleman 
    from Wisconsin rise?
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11. Hale Boggs (La.).
---------------------------------------------------------------------------

        Mr. [Clement J.] Zablocki [of Wisconsin]: Mr. Chairman, I rise 
    to make a point of order against section 111.
        The Chairman: The gentleman will state his point of order.
        Mr. Zablocki: Mr. Chairman, section 111 constitutes legislation 
    in an appropriation bill. This provision has been carried in 
    legislation since 1963.
        I am in sympathy with this provision, and will do my best to 
    include even stronger language in the next authorization bill. The 
    time has come when we should clearly define the responsibilities of 
    our committees and prevent further encroachment, and although I 
    favor this language personally I must insist on my point of order 
    because of the principle involved, that it is legislation in an 
    appropriation bill.
        The Chairman: Does the gentleman from Louisiana desire to be 
    heard on the point of order?
        Mr. [Otto E.] Passman [of Louisiana]: Mr. Chairman, the 
    committee felt that this year, as in the previous years, that this 
    was a limitation provision which was added by the committee to the 
    fiscal year 1963 bill in order to require investigation of the U.S. 
    citizens outside the United States who are performing service on 
    U.S.-funded contracts, and for security to protect the U.S. 
    interests. We felt it was a limitation, and that we had carried it 
    for 7 years.
        Mr. Chairman, I ask for a ruling.
        The Chairman: The Chair is prepared to rule.
        The significant language is found on line 17, where it defines 
    the duties of the President of the United States in saying that 
    ``unless the President''--on line 18--``shall have promulgated 
    regulations that provide for the investigation of such citizens,'' 
    and so on. That again is clearly legislation on an appropriation 
    bill, and falls within the prohibition, and the Chair sustains the 
    point of order.

Directive to Administrator of Federal Aviation Agency

Sec. 50.6 To a general appropriation bill providing funds for an 
    additional airport for the District of Columbia, an amendment 
    providing that no part of the appropriation shall be used for land 
    acquisition for access roads until the Administrator of the Federal 
    Aviation Agency shall have held public hearings to allow local 
    residents to express their views on the loca

[[Page 6026]]

    tion of such roads, was held to be legislation and not in order.

    On June 29, 1959,(12) 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 amendment:
---------------------------------------------------------------------------
12. 105 Cong. Rec. 12124, 12125, 86th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [Joel T.] Broyhill [of Virginia]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Broyhill: On page 3, line 10, add 
        the following: ``Provided, That no part of any appropriation 
        made in this Act shall be used for land acquisition for any 
        access road to the public airport in the vicinity of the 
        District of Columbia authorized by the Act of September 7, 
        1950, until after the Administrator of the Federal Aviation 
        Agency shall have consulted with the Board of Supervisors of 
        Fairfax County, Virginia, on the location of such road and 
        shall have had public hearings at a convenient location, or 
        have afforded the opportunity for such hearings, for the 
        purpose of enabling persons through or contiguous to whose 
        property such road will pass, to express any objections they 
        may have to the proposed location of such road.''

        Mr. [Albert] Thomas [of Texas]: Mr. Chairman, I make a point of 
    order against the amendment on the ground that it is legislation on 
    an appropriation bill.
        The Chairman:(13) Does the gentleman from Virginia 
    desire to be heard on the point of order?
---------------------------------------------------------------------------
13. Paul J. Kilday (Tex.).
---------------------------------------------------------------------------

        Mr. Broyhill: Yes, if the Chair please.
        The Chairman: The Chair will hear the gentleman.
        Mr. Broyhill: Mr. Chairman, this amendment is similar to the 
    limitation we had in the appropriation bill for this same project 
    last year. It merely requires that the community be consulted as 
    provided in the authorization act. It likewise requires public 
    hearings as the authorization act requires. We feel that to require 
    public hearings in the area which has been designated as the access 
    road site is consistent with the authorizing legislation.
        The Chairman: The Chair is prepared to rule. . . .
        The amendment seeks to enjoin upon the Administrator of the 
    Federal Aviation Agency duties and obligations not now required by 
    law. It is therefore legislation on an appropriation bill.
        The Chair sustains the point of order.

Expenditures To Be Pursuant to Recommendations by Officials

Sec. 50.7 An amendment rendering an appropriation contingent upon 
    recommendations by federal officials not required by law is 
    legislation violating Rule XXI clause 2; to an amendment to a 
    general appropriation bill providing additional funds for the 
    Community Services Administration, an amendment prohibiting the 
    expenditure

[[Page 6027]]

    of funds in the pending paragraph for energy conservation services 
    unless expended pursuant to recommendations by the Community 
    Services Administration, state economic opportunity offices, and 
    the General Accounting Office, was ruled out as legislation since 
    providing a condition precedent not required by existing law.

        On June 27, 1979,(14) during consideration in the 
    Committee of the Whole of the Departments of Labor and Health, 
    Education, and Welfare appropriation bill (H.R. 4389), a point of 
    order was sustained against the following amendment:
---------------------------------------------------------------------------
14. 125 Cong. Rec. 17054, 17055, 96th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. [David F.] Emery [of Maine] to the 
        amendment offered by Mr. Dodd: At the end of the amendment 
        offered by Mr. Dodd insert the following:
            Page 46, after line 14, insert the following: None of the 
        sums appropriated in this paragraph shall be used to provide 
        Emergency Energy Conservation Services under section 222(a)(5) 
        of part B of title II of the Economic Opportunity Act of 1964, 
        unless such sum is expended pursuant to recommendations which 
        have been made by the Community Services Administration, State 
        economic opportunity offices, and the General Accounting 
        Office. . . .

        Mr. [William H.] Natcher [of Kentucky]: Mr. Chairman, this 
    amendment imposes additional duties and further it imposes new 
    determinations. In addition to that, Mr. Chairman, the amendment 
    changes existing law. Further it requires new procedures and 
    determinations not under the existing and present law. . . .
        Mr. Emery: . . . This is clearly a limitation on the use of 
    funds appropriated by the Dodd amendment. The intent of the 
    legislation is very clear, and that is to comply with findings that 
    have been made in the GAO study at the request of a congressional 
    committee. I believe that the GAO study was asked for by the 
    gentlewoman from Illinois (Mrs. Collins) from the Subcommittee on 
    Manpower and Housing as an attempt to find ways to improve the 
    distribution of these funds.
        The study reports findings pursuant to a congressional 
    committee request for information. I believe that is well within 
    the scope of the limitation and is appropriate on this bill.
        The Chairman: (15) The Chair is prepared to rule on 
    the point of order.
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15. Don Fuqua (Fla.).
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        The amendment offered by the gentleman from Maine is a 
    limitation on the sums appropriated in the first part of the 
    amendment.
        However, in the last part of the amendment it does set forth 
    new duties upon the Community Services Administration, State 
    economic opportunity offices as well as the General Accounting 
    Office. Since these new determinations are imposed as exclusive 
    conditions precedent to the expenditure of funds beyond what 
    present law requires, it is legislation on an appropriation bill 
    and the Chair is constrained to rule the amendment out of

[[Page 6028]]

    order and sustain the point of order of the gentleman from 
    Kentucky.

Health and Safety Information Required

Sec. 50.8 Where existing law confers discretionary authority upon an 
    executive agency to require submission of health and safety 
    information by applicants for licenses, an amendment to a general 
    appropriation bill restricting that discretion by requiring the 
    submission of certain information as a condition of receiving funds 
    constitutes legislation.

    On June 18, 1979,(16) an amendment was offered as 
follows to H.R. 4399, the energy and water appropriation bill for 
fiscal 1980:
---------------------------------------------------------------------------
16. 125 Cong. Rec. 15286, 15287, 96th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. [James] Weaver [of Oregon]: On 
        page 27 after line 23, add:
            ``No monies appropriated in this paragraph may be expended 
        by the Nuclear Regulatory Commission for the issuance of an 
        operating license for a nuclear powerplant located in a state 
        which does not have an emergency evacuation plan which has been 
        tested, and submitted to the Commission pursuant to law.''.

    The amendment was ruled out on a point of order. The proceedings 
are carried in full in Sec. 51.11, infra.