[Deschler's Precedents, Volume 8, Chapter 26]
[Chapter 26. Unauthorized Appropriations; Legislation on Appropriation Bills]
[E. Provisions as Changing Existing Law; Provisions Affecting Executive Authority; Imposition of New Duties on Officials]
[Â§ 61. Education, Health, and Labor]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 6219-6238]
 
                               CHAPTER 26
 
    Unauthorized Appropriations; Legislation on Appropriation Bills
 
    E. PROVISIONS AS CHANGING EXISTING LAW: PROVISIONS AFFECTING 
     EXECUTIVE AUTHORITY; IMPOSITION OF NEW DUTIES ON OFFICIALS
 
Sec. 61. Education, Health, and Labor

Description of Eligibility for Education Funding; Prohibition on Busing 
    in Order to Overcome Racial Imbalance

Sec. 61.1 An amendment to a general appropriation bill providing that 
    no part of the funds therein may be used to force busing or 
    attendance of students at a particular school in order to overcome 
    racial imbalance as a condition precedent to obtaining federal 
    funds was held to impose additional duties on federal officials and 
    was ruled out as legislation.

    On July 31, 1969,(2) during consideration in the 
Committee of the Whole of the Departments of Labor, and Health, 
Education, and Welfare appropriation bill [H.R. 13111), a point of 
order was raised against the following amendment:
---------------------------------------------------------------------------
 2. 115 Cong. Rec. 21675, 91st Cong. 1st Sess.
---------------------------------------------------------------------------

        Amendments offered by Mr. [Silvio O.] Conte [of Massachusetts]: 
    On page 56, line 11, strike lines 11 through 15 and insert the 
    following:

            ``Sec. 408. No part of the funds contained in this Act may 
        be used to force busing of students, the abolishment of any 
        school, or to force any student attending any elementary or 
        secondary school to attend a particular school against the 
        choice of his or her parent or parents, in order to overcome 
        racial imbalance.''
            And on page 56, line 16. Strike lines 16 through 20 and 
        insert the following:
            ``Sec. 409. No part of the funds contained in this Act may 
        be used to force busing of students, the abolishment of any 
        school or the attendance of students at a particular school in 
        order to overcome racial imbalance as a condition precedent to 
        obtaining Federal funds otherwise available to any State, 
        school district or school.''

    Note: The provisions sought to be amended were as follows:

            ``Sec. 408. No part of the funds contained in this Act may 
        be used to force busing of students, the abolishment of any 
        school, or to force any student attending any elementary or 
        secondary school to attend a particular school against the 
        choice of his or her parents or parent.
            ``Sec. 409. No part of the funds contained in this Act 
        shall be used to force busing of students, the abolishment of 
        any school or the attendance of students at a particular school 
        as a condition precedent to obtaining Federal funds otherwise 
        available to any State, school district, or school.''

        Mr. [Robert L. F.] Sikes [of Florida]: Mr. Chairman, I wish to 
    make a point of order against the amendment.
        The Chairman: (3) The Chair will hear the gentleman.
---------------------------------------------------------------------------
 3. Chet Holifield (Calif.).
---------------------------------------------------------------------------

        Mr. Sikes: Mr. Chairman, it appears to me that the rulings of 
    the Chair heretofore on this bill this afternoon show clearly that 
    this is legislation on an appropriation bill and not a simple

[[Page 6220]]

    limitation in that the language of the amendment will require 
    someone in the executive department to determine whether busing is 
    to overcome racial imbalance. Therefore, it imposes additional 
    duties and as such I consider it to be legislation on an 
    appropriation bill. The Chair has so ruled on a number of occasions 
    on this bill to date.
        The Chairman: Does the gentleman from Massachusetts (Mr. Conte) 
    care to be heard on the point of order?
        Mr. Conte: I certainly do.
        Mr. Chairman, I do not see where these amendments I have, which 
    only change several words in order to overcome racial imbalance, 
    and these are the words that I add, and that is the crucial term--I 
    do not see where it gives the Department of Health, Education, and 
    Welfare or its head or anyone under the Secretary any additional 
    burdens that the present Jamie Whitten sections 408 or 409 do not. 
    I think it is certainly a limitation on the expenditure of funds, 
    and, therefore, the point of order should be overruled.
        Further, I may say, Mr. Chairman, if a point of order would lie 
    on this, it will certainly lie on sections 408 and 409, and I will 
    offer such.
        Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, may I be 
    heard on the point of order?
        The Chairman: Certainly.
        Mr. Whitten: Mr. Chairman, I would like to affirm the statement 
    made by the gentleman from Florida (Mr. Sikes), with respect to the 
    earlier ruling by the Chair this afternoon, this being the same 
    factual situation. I submit it is clearly subject to a point of 
    order and clearly in line with the earlier ruling of the Chair this 
    afternoon.
        The Chairman: The Chair is prepared to rule. The Chair 
    recognizes that this is a very difficult matter. The proposed 
    amendment for section 408 is different from section 408 of the bill 
    in that it has added the words ``in order to overcome racial 
    imbalance.''
        The Chair believes that this would impose duties upon officials 
    which they do not have at the present time and, therefore, it is 
    legislation on an appropriation bill. . . .
        The additional words in the amendment to section 409 are ``in 
    order to overcome racial imbalance'' and this clearly requires 
    additional duties on the part of the officials. Therefore, it is 
    not negative in nature and is legislation on an appropriation bill.
        The Chair, therefore, sustains the point of order.

    Parliamentarian's Note: See Sec. 68.8, infra, where prohibition 
against use of funds to ``force busing of students'' was held in order 
on the same day as a limitation where new determinations of intent were 
not required.

Limiting Funds, Not Discretion

Sec. 61.2 Where, under existing law, federal officials have some 
    discretionary authority to withhold federal funds where the 
    recipients are not in compliance with a federally expressed policy, 
    it is nevertheless in order, by way of a limitation on an 
    appropriation bill, to deny the use

[[Page 6221]]

    of funds for a particular purpose, even though such executive 
    discretion is thereby restricted by implication.

    On July 31, 1969,(4) a point of order against the 
following provision was overruled:
---------------------------------------------------------------------------
 4. 115 Cong. Rec. 21677, 21678, 91st Cong. 1st Sess.
---------------------------------------------------------------------------

        Sec. 409. No part of the funds contained in this Act shall be 
    used to force busing of students, the abolishment of any school or 
    the attendance of students at a particular school as a condition 
    precedent to obtaining Federal funds otherwise available to any 
    State, school district, or school.

    The proceedings of that date are discussed in Sec. 51.10, supra.

Exception From Busing Limitation

Sec. 61.3 To provisions prohibiting the use of funds in the bill for 
    purposes, in part, of promoting busing in school districts, 
    amendments limiting the application of such provisions to school 
    districts which are not formed on the basis of race or color were 
    held in order as not imposing additional duties on the federal 
    official administering the fund.

    On Feb. 19, 1970,(5) the Committee of the Whole was 
considering H.R. 15931, a Departments of Labor, and Health, Education, 
and Welfare appropriation bill. The following proceedings took place:
---------------------------------------------------------------------------
 5. 116 Cong. Rec. 4029, 91st Cong. 2d Sess.
---------------------------------------------------------------------------

        Amendments offered by Mr. [James G.] O'Hara [of Michigan]: On 
    page 60, line 20 after the words ``school district'' insert ``in 
    which students are assigned to particular schools on the basis of 
    geographic attendance areas drawn without consideration of the race 
    or color of prospective students and in which personnel are 
    assigned without regard to race or color'' and on line 23 after the 
    words ``particular school'' insert the words ``other than his 
    neighborhood school.''

    Parliamentarian's Note: The provision as sought to be amended is 
shown below, parentheses indicating the language inserted by the 
amendment:

            ``Sec. 409. No part of the funds contained in this Act may 
        be used to force busing of students, the abolishment of any 
        school or the attendance of students at a particular school 
        (other than his neighborhood school) in order to overcome 
        racial imbalance as a condition precedent to obtaining Federal 
        funds otherwise available to any State, school district (in 
        which students are assigned to particular schools on the basis 
        of geographic attendance areas drawn without consideration of 
        the race or color of prospective students and in which 
        personnel are assigned without regard to race or color) or 
        school.''

        Mr. Gerald R. Ford [of Michigan]: Mr. Chairman, I reserve a 
    point of order against the amendments as legislation on an 
    appropriation bill. . . .

[[Page 6222]]

        But to refer to the point of order, as I read the language 
    proposed in the amendment, it seems crystal clear to me that the 
    language imposes on the executive branch additional burdens and 
    consequently is contrary to the rules of the House as far as 
    legislation on an appropriation bill is concerned. . . .
        Mr. O'Hara: . . . Mr. Chairman, the limitation is in sections 
    408 and 409. It is a bona fide limitation. All my amendment seeks 
    to do is to prescribe with particularity the school districts to 
    which the limitation in sections 408 and 409 will apply. . . .
        Mr. Gerald R. Ford: There is nothing in Federal law today which 
    would authorize such action by the proper officials in the 
    executive branch of the Government. This addition to the limitation 
    in sections 408 and 409 does put additional burdens on the 
    executive branch of the government to determine these kinds of 
    school districts. It is perfectly obvious by the proposed language 
    that it has to be done in each and every case. It is not authorized 
    by law. It is a new burden. It is therefore legislation on an 
    appropriation bill.
        The Chairman: (6) The Chair is prepared to rule.
---------------------------------------------------------------------------
 6. Chet Holifield (Calif.).
---------------------------------------------------------------------------

        The Chair has had occasion to study both of the amendments and 
    the language contained therein. It is clear to the Chair that the 
    language relates to the limitations which are already a part of 
    sections 408 and 409. It defines the limitations further by adding 
    an additional definition to the limitations and in the opinion of 
    the Chair is negative insofar as additional action is concerned on 
    the ground that it really is a description of the school district 
    as it exists at the present time. Therefore, the Chair is 
    constrained to overrule the point of order.

Denying Education Funds Requiring Evaluation of Conduct; Imposing 
    Condition Precedent to Funding

Sec. 61.4 To a general appropriation bill, an amendment providing that 
    none of the funds therein may be used for financial assistance to 
    students who have engaged in certain types of disruptive conduct, 
    and including as a condition precedent to the termination of such 
    assistance a requirement that the college or university at which 
    such student is enrolled has initiated or completed a hearing 
    procedure which is not dilatory, was held to impose additional 
    duties on executive officers and was ruled out as legislation.

    On July 31, 1969,(7) during consideration in the 
Committee of the Whole of the Departments of Labor, and Health, 
Education, and Welfare appropriation bill (H.R. 13111), the following 
proceedings took place:
---------------------------------------------------------------------------
 7. 115 Cong. Rec. 21631-33, 91st Cong. 1st Sess.

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

[[Page 6223]]

        The Chairman: (8) The Clerk will read.
---------------------------------------------------------------------------
 8. Chet Holifield (Calif.).
---------------------------------------------------------------------------

        The Clerk read as follows:

            Sec. 407. No part of the funds appropriated under this Act 
        shall be used to provide a loan . . . a grant, the salary of or 
        any remuneration whatever to any individual applying for 
        admission, attending, employed by, teaching at, or doing 
        research at an institution of higher education who has engaged 
        in conduct on or after October 12, 1968, which involves the use 
        of (or the assistance to others in the use of) force or the 
        threat of force or the seizure of property under the control of 
        an institution of higher education, to require or prevent the 
        availability of certain curriculum, or to prevent the faculty, 
        administrative officials, or students in such institution from 
        engaging in their duties or pursuing their studies at such 
        institution: Provided, That such limitation upon the use of 
        money appropriated in this Act shall not apply to a particular 
        individual until the appropriate institution of higher 
        education at which such conduct occurred shall have had an 
        opportunity to initiate or has completed such proceedings as it 
        deems appropriate but which are not dilatory in order to 
        determine whether such individual was involved in such conduct: 
        Provided further, That none of the funds appropriated by this 
        Act shall be used to formulate or carry out any grant or loan 
        or interest subsidy to any institution of higher education 
        other than to such institutions certifying to the Secretary of 
        Health, Education, and Welfare at quarterly or semester 
        intervals that they are in compliance with this provision.

        Mr. [Ogden R.] Reid of New York: Mr. Chairman, I have a point 
    of order against section 407 of H.R. 13111, as it constitutes 
    legislation on an appropriation bill.
        Mr. Chairman, may I be heard on the point of order?
        The Chairman: The gentleman will state his point of order.
        Mr. Reid of New York: Mr. Chairman, I will.
        Mr. Chairman, section 407 constitutes legislation on an 
    appropriation bill, and, in my judgment, is inconsistent with rule 
    XXI, section 843 of the Rules of the House of Representatives for 
    the 91st Congress. While a straight limitation on an appropriation 
    bill is in order, it is my understanding of rule XXI which I quote 
    that--

            Such limitations must not give affirmative directions, and 
        must not impose new duties upon an executive officer.

        Specifically, Mr. Chairman, section 407 of the bill in my 
    judgment imposes permanent new duties on the executive and requires 
    as well a number of judgmental decisions not now required by law, 
    which are complex and far reaching. . . .
        Specifically, Mr. Chairman, following this language and keeping 
    in mind rule XXI which prohibits limitations from giving 
    affirmative directions or imposing new duties upon an executive 
    officer, I ask the following questions:
        One. Who is to determine whether proceedings are not dilatory?
        Two. Who is to determine which institutions did not file 
    certifications?
        Three. Who, Mr. Chairman, is to determine and make the judgment 
    as to whether the conduct involved the ``threat of force'' or the 
    ``assistance to others in the threat of force''?
        Four. What constitutes ``property under the control of an 
    institution of higher education''? Does this involve rent, 
    leasehold, or what?

[[Page 6224]]

        Five. What constitutes requiring or preventing ``the 
    availability of certain curriculum''?
        Put another way, Mr. Chairman, the statute requires that a 
    judgment be made as to time, the character of the action involved, 
    and the intent of those so involved.
        Further as to the point of order, Mr. Chairman, under section 
    1706 of Cannon's Precedents, volume 7, I would quote briefly from 
    the Chairman during the 1923 debate on a D.C. appropriation bill 
    concerning the compensation of jurors. The Chairman asked, and I 
    quote:

            Is (this limitation) accompanied by a phrase which might be 
        construed to impose additional duties or permit an official to 
        assume an intent to change existing law?

            Does the limitation curtail or extend, modify, or alter 
        existing powers or duties, or terminate old or confer new ones? 
        If it does, then it must be conceded that legislation is 
        involved, for without legislation these results could not be 
        accomplished.

        The point of order in this instance against the provision was 
    sustained. . . .
        Likewise, Mr. Chairman, the new duties imposed on an executive 
    officer in section 407 include: First, that he shall receive 
    quarterly or semester certifications from institutions; second, 
    that he shall determine which institutions failed to certify; 
    third, that he shall terminate all aid to those institutions which 
    failed to certify; and, fourth, that student funds are mandatorily 
    to be cut off following the institution of certain proceedings.
        These are, in my judgment, rather formidable new and 
    affirmative duties--national in character.
        Lastly, Mr. Chairman, the institution must initiate such 
    proceedings as it deems appropriate to determine whether a student 
    is involved in this conduct.
        However, such proceedings must not be dilatory. What is not a 
    matter of institutional determination is that which is or is not 
    dilatory. Hence a Federal standard determined by Federal officials 
    will be required.
        Mr. [Robert L. F.] Sikes [of Florida]: Mr. Chairman, I would 
    like to be heard on the point of order. I rise in opposition to the 
    point of order raised by the gentleman from New York.
        Section 407 I feel should be held in order. It is a limitation. 
    It is not legislation on an appropriation bill. It relates clearly 
    to funds appropriated under this act and sets and establishes 
    certain criteria to be met before the funds can be used. It does 
    not force any institution to take any action. It simply requires 
    that certain conditions be met if funds are to be obtained for 
    loans and grants to students and teachers. If the institutions do 
    not care to meet the requirements, they are not under any 
    obligation to take the money. . . .
        . . . I would call the Chair's attention to section 3942 of 
    volume 4 of Hinds' Precedents, which required certification before 
    money could be paid to the Agricultural College of Utah--the 
    certification to be to the effect that no trustee, officer, 
    instructor, or employee of such college is engaged in the practice 
    of polygamy.
        I want to quote, Mr. Chairman, from section 3942:

            While it is not in order to legislate as to qualifications 
        of the recipients

[[Page 6225]]

        of an appropriation, the House may specify that no part of the 
        appropriation shall go to recipients lacking certain 
        qualifications. . . .

        The Chairman: Does the gentleman from New York (Mr. Reid) 
    desire to be heard further on the point of order?
        Mr. Reid of New York: Yes, Mr. Chairman, I would add one or two 
    brief words. First, there are specific new affirmative directions 
    in section 407, specifically the determination as to whether the 
    proceedings are or are not dilatory. That is a specific requirement 
    upon the Secretary and clearly a new duty.
        In addition, it is very clear that the new duties include 
    determining institutional cutoffs for about 2,300 colleges and 
    universities throughout the United States and the termination of 
    funds to any individual not as a result of conviction or even of 
    completed proceedings. These clearly constitute new duties and 
    affirmative directions.
        The Chairman: The Chair has listened with great attention to 
    the gentleman from New York who has raised the point of order and 
    also the gentleman from Florida (Mr. Sikes) who has cited a number 
    of precedents.
        The Chair has read the precedents cited and is ready to rule.
        The gentleman from New York (Mr. Reid) has raised this point of 
    order against section 407 on the ground that it constitutes 
    legislation on an appropriation bill.
        The Chair has examined the section referred to and notes while 
    it imposes a restriction on the use of funds now in the bill, it 
    also carries a condition precedent to the imposition of this 
    limitation which would require determinations regarding whether or 
    not the limitation is to apply. Some official or officials would be 
    required to follow the hearing procedures at each institution of 
    higher education in many of several forms, including whether the 
    institution has had an opportunity to initiate hearing procedures; 
    whether such procedures are final, and whether they have been 
    dilatory.
        The Chair has examined the ruling made by Chairman Fascell on 
    October 4, 1966, of the 89th Congress, second session, 
    Congressional Record, volume 112, part 18, page 24976, regarding a 
    similar proposition. It was held at that time, that:

            While the House may, by way of a limitation, restrict the 
        use of funds in an appropriation bill, it may not, under the 
        guise of a limitation impose additional new determinations on 
        an Executive.

        The Chair, therefore, sustains the point of order.

    Parliamentarian's Note: In another ruling, on July 31, 
1969,(9) an amendment providing that no part of the funds 
carried in a pending appropriation bill were to be used for financial 
assistance for students who had engaged in force or had used the threat 
of force to prevent faculty or students from carrying out their duties 
or studies was held in order as a limitation not imposing additional 
duties. It is unlikely that this ruling would be followed in current 
prac

[[Page 6226]]

tice, since the imposition of duties, not contemplated in existing law, 
on federal officials, including the determination of intent and other 
findings to be made with respect to student activities would certainly 
be viewed as a change in existing law.
---------------------------------------------------------------------------
 9. 115 Cong. Rec. 21636, 21637, 91st Cong. 1st Sess.
---------------------------------------------------------------------------

    4 Hinds' Precedents Sec. 3942, referred to by Mr. Sikes, above, is 
discussed in Sec. 52.2, supra.

Determinations Requiring Evaluations and Judgments May Disqualify 
    Limitation

Sec. 61.5 An amendment providing that no part of the funds carried in a 
    pending general appropriation bill may be used for financial 
    assistance for students who have engaged in ``conduct of a serious 
    nature'' contributing to ``a substantial campus disruption'' and 
    who have used force or the threat thereof to prevent the pursuit of 
    academic aims, was held to impose new duties of determination and 
    judgment on federal officials and was ruled out as legislation.

    On July 31, 1969,(10) during consideration in the 
Committee of the Whole of the Departments of Labor, and Health, 
Education, and Welfare appropriation bill (H.R. 13111), a point of 
order was raised against the following amendment:
---------------------------------------------------------------------------
10. 115 Cong. Rec. 21645, 91st Cong. 1st Sess. See Sec. 52.4, supra, 
        for further discussion of the effect of provisions requiring 
        officials to perform certain duties of evaluation, 
        investigation, and discernment of motive or intent.
---------------------------------------------------------------------------

        Mr. [John R.] Dellenback [of Oregon]: Mr. Chairman, I offer a 
    substitute amendment to the amendment offered by the gentleman from 
    Florida (Mr. Sikes). . . .
        The Clerk read as follows:

            Substitute amendment offered by Mr. Dellenback to the 
        amendment offered by Mr. (Robert L. F.) Sikes: On page 55 after 
        line 8 insert the following:
            ``Sec. 407. None of the funds appropriated by this Act 
        shall be used to formulate or carry out any grant to any 
        institution of higher education that is not in full compliance 
        with Section 504 of the Higher Education Amendments of 
        1968.(11)
---------------------------------------------------------------------------
11. See note in Sec. 63.5, infra, for provisions of Sec. 504.
---------------------------------------------------------------------------

            ``No part of the funds appropriated under this Act shall be 
        used to provide a loan, guarantee of a loan, a grant, the 
        salary of or any remuneration whatever to any individual 
        applying for admission, attending, employed by, teaching at, or 
        doing research at an institution of higher education who has 
        engaged in conduct on or after August 1, 1969, which was of a 
        serious nature, contributed to a substantial campus disruption, 
        and involved the use of (or the assistance to others in the use 
        of) force or the threat of force or the seizure of property 
        under the control

[[Page 6227]]

        of an institution of higher education, to require or prevent 
        the availability of certain curriculum, or to prevent the 
        faculty, administrative officials, or students in such 
        institution from engaging in their duties or pursuing their 
        studies at such institution.''

        Mr. [John] Brademas [of Indiana]: Mr. Chairman, a point of 
    order.
        The Chairman: (12) The gentleman will state it.
---------------------------------------------------------------------------
12. Chet Holifield (Calif.).
---------------------------------------------------------------------------

        Mr. Brademas: Mr. Chairman, I must make a point of order 
    against the amendment offered by the gentleman on the ground that 
    it constitutes legislation on an appropriation bill.
        I call the attention of the Chair to the fact that the 
    amendment offered by the gentleman from Oregon contains a number of 
    phrases each of which will require a burden on the part of the 
    Department of Health, Education, and Welfare to make certain 
    judgments and determinations.

        For example, Mr. Chairman, the gentleman's amendment uses 
    language which refers to conduct that is ``of a serious nature.'' 
    Who is to decide, Mr. Chairman, when conduct is ``of a serious 
    nature'' or is not ``of a serious nature''?
        His amendment contains language which says that the conduct 
    must have ``contributed to a substantial campus disruption.'' Who 
    defines ``disruption''? Who defines ``substantial''? Those 
    determinations will be burdens imposed upon officials of the 
    executive branch of the Government.
        The gentleman's amendment has a phrase referring to conduct 
    which ``involved the use of force'' or ``the threat of force.'' 
    Once again these phrases require determinations which must be made 
    by the executive branch.
        Mr. Chairman, the gentleman's amendment contains the phrase, 
    ``to require or prevent'' certain kinds of action or occurrences. 
    This is language which clearly involves the stipulation of a 
    purpose which must be in the mind of the person complained of, and 
    a determination must thus be made by the executive branch of the 
    Government on the issue of whether such conduct was indeed intended 
    ``to require or prevent'' the availability of certain curriculums 
    or to prevent the faculty, students, or administrative officials 
    from engaging in their duties, or pursuing their studies.
        For all these reasons, Mr. Chairman, I believe it is very clear 
    that the gentleman's amendment constitutes legislation on an 
    appropriation bill, and I believe the amendment should be 
    disallowed. . . .
        The Chairman: . . . The Chair is ready to rule. It is clear 
    from the language of the gentleman's amendment that it does go 
    beyond a negative type of amendment and it does impose upon 
    officials certain duties of determination and judgment which are 
    legislative and subject to a point of order on an appropriation 
    bill.
        The Chair sustains the point of order.

New Determinations Not Required by Law in Making Allocation of Funds

Sec. 61.6 Where existing law (20 USC Sec. 238) provided, in its 
    allotment formula for determining entitlements of local

[[Page 6228]]

    educational agencies to a certain category of assistance in 
    federally affected areas, that the Commissioner shall determine the 
    ``number of children who . . . resided with a parent employed on 
    federal property situated in the same State as such agency or 
    situated within reasonable commuting distance from the school 
    district of such agency'', an amendment to an appropriation bill 
    containing funds for ``impacted school assistance'' prohibiting the 
    use of funds in that bill for assistance ``for children whose 
    parents are employed on Federal property outside the school 
    district of such agency'' was held to impose the additional duty on 
    federal officials of determining whether the parent was employed 
    within the school district and was ruled out as legislation in 
    violation of Rule XXI clause 2.

    The proceedings of June 26, 1973,(13) are discussed in 
Sec. 52.18, supra.
---------------------------------------------------------------------------
13. 119 Cong. Rec. 21393, 21394, 93d Cong. 1st Sess.
---------------------------------------------------------------------------

New Direction in Fund Distribution Not Required by Law

Sec. 61.7 A provision in an amendment to a general appropriation bill 
    denying the use of any funds for impacted school aid until the 
    official allocating the funds makes an apportionment thereof 
    contrary to the formula prescribed by existing law was held to 
    impose additional duties upon that official, thus changing existing 
    law and constituting legislation on an appropriation bill.
    On Apr. 14, 1970,(14) during consideration in the 
Committee of the Whole of the Education Department appropriation bill 
(H.R. 16916), a point of order was raised against the following 
amendment:
---------------------------------------------------------------------------
14. 116 Cong. Rec. 11676, 11677, 91st Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [Robert H.] Michel [of Illinois]: Mr. Chairman, I offer an 
    amendment in the nature of a substitute.
        The Clerk read as follows:

            Amendment in the nature of a substitute offered by Mr. 
        Michel: Strike all after the enacting clause and insert:

                          Title I--Office of Education

                 school assistance in federally affected areas

            For carrying out title I of the Act of September 30, 1950, 
        as amended (20 U.S.C., ch. 13), and the Act of

[[Page 6229]]

        September 23, 1950, as amended (20 U.S.C., ch. 19), 
        $440,000,000 of which $425,000,000 shall be for the maintenance 
        and operation of schools as authorized by said title I of the 
        Act of September 30, 1950, as amended, and $15,000,000 which 
        shall remain available until expended, shall be for providing 
        school facilities as authorized by said Act of September 23, 
        1950: Provided, That this appropriation shall not be available 
        to pay local educational agencies pursuant to the provisions of 
        any other section of said title I until payment has been made 
        of 90 per centum of the amounts to which such agencies are 
        entitled pursuant to section 3(a) of said title and 100 per 
        centum of the amounts payable under section 6 of said title. . 
        . .

        Mr. [James G.] O'Hara [of Michigan]: Then I make a point of 
    order against the amendment offered by the gentleman from Illinois.
        The Chairman: (15) The Chair will hear the gentleman 
    on the point of order.
---------------------------------------------------------------------------
15. Chet Holifield (Calif.).
---------------------------------------------------------------------------

        Mr. O'Hara: Mr. Chairman, the point of order against the 
    amendment offered by the gentleman from Illinois is that it 
    contains legislation in an appropriation bill, to wit, the language 
    on page 2, lines 6 to 12 is clearly legislation on an appropriation 
    bill providing for different dispositions of funds under those 
    sections than are provided by law. Therefore I make a point of 
    order against the amendment offered by the gentleman from Illinois. 
    . . .
        Mr. [Daniel J.] Flood [of Pennsylvania]: Mr. Chairman, it is as 
    plain as the nose on my face, and I have got a nose, that this is 
    clearly a limitation upon the expenditure of funds. That is clearly 
    it. I suggest the point must be overruled.
        The Chairman: Does the gentleman from Michigan desire to be 
    heard further?
        Mr. O'Hara: Mr. Chairman, I would like to be heard. I would 
    like to say first, Mr. Chairman, if the proviso to which I have 
    referred authorizes the use on a different formula than that 
    provided in the basic authorizing legislation, and I do not believe 
    that the proviso is a limitation or retrenchment of appropriations 
    which would be an expansion, the proviso is neither a limitation 
    nor retrenchment of appropriations, because it permits payment to 
    be made in excess of the payments authorized by the above quoted 
    section of Public Law 81-874.
        It may be helpful to the Chairman and to my colleagues in 
    understanding the point that the reference contained in section 
    5(c) just quoted, that various other sections of entitlements to 
    payments are to the so-called familiar references to categories A 
    and B children under impacted aid.
        The Chairman: The Chair is prepared to rule. The gentleman from 
    Michigan (Mr. O'Hara), has raised a point of order against the 
    proviso appearing in the amendment in the nature of a substitute 
    and referred to in the original bill as the proviso on page 2 of 
    the bill on the ground that it constitutes legislation on an 
    appropriation bill in violation of clause 2, rule XXI. That proviso 
    would make appropriations in the bill unavailable for payment to 
    local educational agencies pursuant to the provisions of any other 
    section of title I of the act of September 30, 1950--which 
    authorizes school assistance in federally affected areas--until 
    payment has been made of 90 percent of entitled allotments

[[Page 6230]]

    pursuant to section 3(a) of said title I and of 100 percent of 
    amounts payable under section 6 of that title. The gentleman from 
    Michigan contends that such a requirement for payments of funds 
    appropriated in this bill has the effect of changing the allotment 
    formula in the authorizing legislation of funds for ``category A 
    students,'' and is therefore legislation on an appropriation bill 
    prohibited by clause 2, rule XXI.
        On June 26, 1968, during consideration of the Department of 
    Labor and Health, Education, and Welfare appropriation bill for 
    fiscal year 1969, the Chair--the gentleman now occupying it--
    sustained a point of order against an amendment prohibiting the use 
    of funds in the bill for educationally deprived children until 
    there was made available therefrom for certain local educational 
    agencies an amount at least equal to that allotted in the preceding 
    year, since that amendment would have required the Commissioner of 
    Education to make an apportionment of appropriated funds contrary 
    to the formula prescribed by existing law, thus imposing additional 
    duties on that official and changing existing law.
        The Chair feels that that decision is controlling in this 
    instance. To make the appropriations authorized under certain 
    sections of the ``impacted school aid`` legislation contingent upon 
    allotment of certain percentages of entitled funds under other 
    sections of that authorizing legislation is to impose additional 
    duties on the official making the allotment and to change the 
    enforcement formula in the authorizing legislation is in violation 
    of clause 2, rule XXI.
        The Chair therefore sustains the point of order.

Affirmative Directive to Nonfederal Recipient of Funds

Sec. 61.8 An amendment to an appropriation bill, in the form of a 
    limitation providing that none of the funds appropriated would be 
    used for support of military training courses in civil schools 
    unless the authorities of such institutions make certain 
    information known to prospective students, was held to be 
    legislation and not in order.

    On Feb. 14, 1936,(16) an amendment to a War Department 
appropriation bill was ruled out as legislation. The provision sought 
to be amended was as follows:
---------------------------------------------------------------------------
16. 80 Cong. Rec. 2091-94, 74th Cong. 2d Sess.
---------------------------------------------------------------------------

        For the procurement, maintenance, and issue, under such 
    regulations as may be prescribed by the Secretary of War, to 
    institutions at which one or more units of the Reserve Officers' 
    Training Corps are maintained [of supplies, etc.].

    The amendment that was ruled against is set out below:

        On page 59, line 6, after the words ``corps'', insert 
    ``Provided further, That none of the funds appropriated in this act 
    shall be used for or toward the support of military training 
    courses in any civil school or college the authorities of which 
    choose to maintain such courses on a compulsory basis, unless the 
    au

[[Page 6231]]

    thorities of such institutions provide, and make known to all 
    prospective students by duly published regulations, arrangements 
    for the unconditional exemption from such military courses, and 
    without penalty, for any and all students who prefer not to 
    participate in such military courses because of convictions 
    conscientiously held, whether religious, ethical, social, or 
    educational, though nothing herein shall be construed as applying 
    to essentially military schools or colleges.''

    The proceedings that occurred in this connection are discussed in 
greater detail in Sec. 53.1, supra.

Requiring Judgment Whether Duty Is Incidental to Teaching

Sec. 61.9 A provision in a District of Columbia appropriation bill that 
    teachers shall not perform any clerical work except that necessary 
    or incidental to their regular classroom teaching assignments was 
    ruled out as legislation.

    The proceedings of Apr. 2, 1937,(17) relating to a point 
of order against a provision as described above, are discussed in Sec. 
60.1, supra.
---------------------------------------------------------------------------
17. 81 Cong. Rec. 3106, 3107, 75th Cong. 1st Sess.
---------------------------------------------------------------------------

Indian Health Activities; Temporary Services at Per Diem Rates When 
    Authorized by Surgeon General

Sec. 61.10 Language in a general appropriation bill to provide for 
    Indian health activities ``including . . . temporary services at 
    rates not to exceed $100 per diem . . . when authorized by the 
    Surgeon General'' was held to be legislation and not in order.

    On Mar. 29, 1960,(18) during consideration in the 
Committee of the Whole of the Departments of Labor, and Health, 
Education and Welfare appropriation bill (H.R. 11390), a point of order 
was raised against the following provision:
---------------------------------------------------------------------------
18. 106 Cong. Rec. 6863, 6864, 86th Cong. 2d Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

                            Indian Health Activities

            For expenses necessary to enable the Surgeon General to 
        carry out the purposes of the Act of August 5, 1954 (42 U.S.C. 
        2001) (including not to exceed $10,000 for temporary services 
        at rates not to exceed $100 per diem for individuals, when 
        authorized by the Surgeon General); purchase of not to exceed 
        twenty-seven passenger motor vehicles, of which fourteen shall 
        be for replacement only; hire of passenger motor vehicles and 
        aircraft; purchase of reprints; payment for telephone service 
        in private residences in the field,

[[Page 6232]]

        when authorized under regulations approved by the Secretary; 
        and the purposes set forth in sections 321, 322(d), 324, and 
        509 of the Public Health Service Act, $48,276,000.

        Mr. [H. R.] Gross [of Iowa]: Mr. Chairman, I make a point of 
    order against the language on page 28 beginning in line 4 as 
    follows: ``(including not to exceed $10,000 for temporary services 
    at rates not to exceed $100 per diem for individuals, when 
    authorized by the Surgeon General)'' on the ground that this is 
    legislation on an appropriation bill.
        The Chairman: (19) Does the gentleman from Rhode 
    Island desire to be heard?
---------------------------------------------------------------------------
19. Eugene J. Keogh (N.Y.).
---------------------------------------------------------------------------

        Mr. [John E.] Fogarty (of Rhode Island): It is my 
    understanding, Mr. Chairman, that this language is needed in order 
    to get some of our best brains to go into remote areas of these 
    Indian reservations. By not allowing the language to remain in the 
    bill is doing a disservice to the Indian population. I do believe 
    in the basic law there is authority permitting such language as 
    this. . . .
        The Chairman: The Chair sustains the point of order.

Making Lesser Determination Than That Contemplated by Law

Sec. 61.11 To a section of a general appropriation bill exempting cases 
    where the life of the mother would be endangered if the fetus were 
    carried to term from a denial of funds for abortions, an amendment 
    exempting instead cases where the health of the mother would be 
    endangered if the fetus were carried to term was held not to 
    constitute further legislation, since determinations on the 
    endangerment of life necessarily subsume determinations on the 
    endangerment of health, and the amendment did not therefore require 
    any different or more onerous determinations.

    The proceedings of June 27, 1984,(20) are discussed in 
Sec. 52.30, supra.
---------------------------------------------------------------------------
20. 130 Cong. Rec. ----, 98th Cong. 2d Sess.
---------------------------------------------------------------------------

Determining That Life of Mother Endangered if Fetus Carried to Term

Sec. 61.12 A provision in a general appropriation bill requiring new 
    determinations by federal officials is legislation and subject to a 
    point of order, regardless of whether or not private or state 
    officials administering the federal funds in question routinely 
    make such determinations.

[[Page 6233]]

    On June 17, 1977,(1) a point of order was sustained 
against the following provision in the Departments of Labor, and 
Health, Education and Welfare and related agencies appropriation bill 
(H.R. 7555):
---------------------------------------------------------------------------
 1. 123 Cong. Rec. 19698, 19699, 95th Cong. 1st Sess.
---------------------------------------------------------------------------

        None of the funds contained in this Act shall be used to 
    perform abortions except where the life of the mother would be 
    endangered if the fetus were carried to term.

    The proceedings of that date are discussed more fully in 
Sec. 52.33, supra.

Requiring Determination of Motive or Intent

Sec. 61.13 An amendment to a general appropriation bill prohibiting the 
    use of funds therein for abortions or abortion-related material and 
    services, and defining ``abortion'' as the intentional destruction 
    of unborn human life, which life begins at the moment of 
    fertilization was conceded to impose affirmative duties on 
    officials administering the funds (requiring determinations of 
    intent of recipients during abortion process) and was ruled out as 
    legislation in violation of Rule XXI clause 2.

    The proceedings of June 27, 1974,(2) relating to a point 
of order against the amendment described above, are discussed in 
Sec. 25.14, supra.
---------------------------------------------------------------------------
 2. 120 Cong. Rec. 21687, 93d Cong. 2d Sess.
---------------------------------------------------------------------------

Duties Already Being Performed Pursuant to Provisions in Annual 
    Appropriation Acts

Sec. 61.14 A provision in a general appropriation bill prohibiting the 
    use of funds therein to perform abortions except where the life of 
    the mother would be endangered if the fetus were carried to term, 
    and providing that the several states shall remain free not to fund 
    abortions to the extent they deem appropriate, is legislation 
    requiring federal officials to make determinations and judgments 
    not required by law, notwithstanding the inclusion in prior year 
    appropriation bills of similar legislation applicable to funds in 
    prior years.

    On Sept. 22, 1983,(3) a point of order was made and 
sustained

[[Page 6234]]

against a provision in a general appropriation bill, as described 
above. The proceedings of that date are discussed in greater detail in 
Sec. 52.44, supra.
---------------------------------------------------------------------------
 3. 129 Cong. Rec. ---- 98th Cong. 1st Sess.
---------------------------------------------------------------------------

Determination Whether Life of Mother is at Risk as Prelude to Abortion

Sec. 61.15 A paragraph in a general appropriation bill prohibiting the 
    use of funds in the bill to perform abortions except where the 
    mother's life would be endangered if the fetus were carried to term 
    was ruled out of order as legislation, since requiring federal 
    officials to make new determinations and judgments not required by 
    law as to the danger to the mother in each individual case.

    The proceedings of June 17, 1977,(4) relating to a point 
of order against a paragraph as described above, are discussed in 
Sec. 53.4, supra.
---------------------------------------------------------------------------
 4. 123 Cong. Rec. 19698, 19699, 95th Cong. 1st Sess.
---------------------------------------------------------------------------

Sec. 61.16 An amendment to a general appropriation bill prohibiting the 
    use of funds in the bill to perform abortions, except where a 
    physician has certified the abortion is necessary to save the life 
    of the mother, was ruled out as legislation since some of the 
    physicians required to make such certification would be federal 
    officials not required under existing law to make such 
    determinations and judgments.

    The proceedings of June 17, 1977,(5) are discussed in 
Sec. 53.5, supra.
---------------------------------------------------------------------------
 5. 123 Cong. Rec. 19699, 19700, 95th Cong. 1st Sess.
---------------------------------------------------------------------------

Permitting Transfer of Funds With Approval of Bureau of the Budget

Sec. 61.17 Language in a general appropriation bill authorizing the 
    Secretary of Labor to allot or transfer, with the approval of the 
    Director of the Budget, funds from a certain appropriation in the 
    bill to any bureau of the Department of Labor, to enable such 
    agency to perform certain services, was held to be legislation and 
    not in order on a general appropriation bill.

    On Jan. 20, 1939,(6) the Committee of the Whole was 
consid

[[Page 6235]]

ering H.R. 2868, a deficiency appropriation bill. The Clerk read a 
paragraph providing an appropriation for the Department of Labor, Wage 
and Hour Division, which contained the following proviso:
---------------------------------------------------------------------------
 6. 84 Cong. Rec. 591, 592, 76th Cong. 1st Sess.
---------------------------------------------------------------------------

        Provided, That the Secretary of Labor may allot or transfer, 
    with the approval of the Director of the Bureau of the Budget, 
    funds from this appropriation to any bureau or office of the 
    Department of Labor to enable such agency to perform services for 
    the Wage and Hour Division.
        Mr. [John] Taber [of New York]: Mr. Chairman, I make a point of 
    order against the proviso beginning in line 3, page 5, and 
    including the rest of the section on the ground that it is 
    legislation on an appropriation bill that imposes additional duties 
    upon the Bureau of the Budget.
        The Chairman: (7) Does the gentleman from Virginia 
    desire to be heard on the point of order?
---------------------------------------------------------------------------
 7. Wall Doxey (Miss.).
---------------------------------------------------------------------------

        Mr. [Clifton A.] Woodrum of Virginia: No.
        The Chairman: The Chair sustains the point of order.

Limiting Funds for Certain Ascertainable Class of Employers

Sec. 61.18 To a paragraph in a general appropriation bill containing 
    funds for the Occupational Safety and Health Administration, an 
    amendment prohibiting the use of those funds for expenses of 
    inspection of employers who have submitted plans for compliance 
    with the Occupational Safety and Health Act where the Secretary of 
    Labor has approved such plans, was allowed, since the language was 
    merely descriptive of certain employers as to whom the limitation 
    on the use of funds was made applicable.

    On Sept. 19, 1972,(8) during consideration in the 
Committee of the Whole of the Departments of Labor, and Health, 
Education, and Welfare appropriation bill (H.R. 16654), a point of 
order was raised against the following amendment:
---------------------------------------------------------------------------
 8. 118 Cong. Rec. 31322, 92d Cong. 2d Sess.
---------------------------------------------------------------------------

        Mr. [James A.] McClure [of Idaho]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. McClure: Page 6, line 24, 
        immediately before the period insert the following: ``Provided, 
        That none of these funds shall be used to pay for expenses of 
        inspection in connection with any employer who has submitted to 
        the Secretary of Labor a plan for compliance with the 
        Occupational Safety and Health Act of 1970 and such plan has 
        been approved by the Secretary.''. . .

[[Page 6236]]

        The Chairman: (9) Does the gentleman from 
    Massachusetts wish to press the point of order?
---------------------------------------------------------------------------
 9. Chet Holifield (Calif.).
---------------------------------------------------------------------------

        Mr. [Silvio O.] Conte [of Massachusetts]: Yes, Mr. Chairman.
        Mr. Chairman, I raise the point of order that this gives the 
    Secretary additional burdens and duties to ascertain whether a plan 
    is acceptable or not. Further, I believe it is nongermane. It is 
    not related to the organic law at all. As I understand the OSHA 
    law, it does not require a plan to be submitted to the Secretary of 
    Labor. Therefore, it is completely nongermane to the legislation. 
    Therefore, I feel a point of order lies against the amendment.
        The Chairman: Does the gentleman from Idaho wish to respond to 
    the point of order?
        Mr. McClure: Yes, Mr. Chairman. I thank the Chairman. I 
    recognize the argument that has been made by the gentleman 
    concerning the fact that it imposes a duty, but the duty is already 
    imposed by the OSHA Act to require the Secretary to do certain 
    things with respect to safety regulations. This changes the method 
    by which that action is complied with but does not impose an 
    additional duty.
        The Chairman: The Chair is ready to rule. The Chair has 
    listened carefully to the arguments for and against the point of 
    order. The Chair believes that this is a limitation of funds and it 
    is restricted to the funds contained in the pending bill. It is a 
    limitation on using those funds for inspection of certain employers 
    who have submitted plans for compliance with the Occupational 
    Safety and Health Act where those plans have been approved. The 
    amendment is negative and imposes no new duties on Federal 
    officials. Therefore the Chair holds the amendment in order and 
    overrules the point of order.

To the Extent the Secretary Finds Necessary

Sec. 61.19 In an appropriation bill, providing funds for grants to 
    states for unemployment compensation, language stating ``only to 
    the extent that the Secretary finds necessary,'' was held to impose 
    additional duties and to be legislation on an appropriation bill 
    and not in order.

    On Mar. 27, 1957,(10) a point of order was made and 
sustained against a provision in H.R. 6287 (a Departments of Labor, and 
Health, Education, and Welfare appropriation bill) as described above. 
The proceedings of that date are discussed in greater detail in 
Sec. 52.14, supra.
---------------------------------------------------------------------------
10. 103 Cong. Rec. 4559, 4560, 85th Cong. 1st Sess.
---------------------------------------------------------------------------

Requiring Evaluation of ``Propriety'' and ``Effectiveness''.

Sec. 61.20 Language in the guise of a limitation requiring federal 
    officials to make evaluations of propriety and effec

[[Page 6237]]

    tiveness not required to be made by existing law is legislation; a 
    proviso in a general appropriation bill prohibiting the use of 
    funds therein for grants ``not properly reviewed under procedures 
    used in the prior fiscal year'' or for grantees not having ``an 
    established and effective program in place'' was held to require 
    new determinations by federal officials not required by existing 
    law for the fiscal year in question and to be legislation in 
    violation of Rule XXI clause 2.

    On Oct. 6, 1981,(11) a point of order was made and 
sustained against a provision in an appropriation bill (H.R. 4560) as 
described above. The proceedings of that date are discussed in greater 
detail in Sec. 52.32, supra.
---------------------------------------------------------------------------
11. 127 Cong. Rec. 23361, 97th Cong. 1st Sess.
---------------------------------------------------------------------------

Denying Fund Availability to Beneficiary Already Receiving Another 
    Entitlement

Sec. 61.21 An amendment to a general appropriation bill denying 
    availability of funds therein to pay certain benefits to persons 
    simultaneously entitled by law to other benefits, or in amounts in 
    excess of those other entitlement levels, was held in order as a 
    limitation, since existing law already required executive officials 
    to determine whether and to what extent recipients of funds 
    contained in the bill were also receiving those other entitlement 
    benefits.

    The determination of the Chair on June 18, 1980,(12) was 
that, where existing law (19 USC Sec. 2292) established trade 
readjustment allowances to workers unemployed because of import 
competition and required the disbursing agency to take into 
consideration levels of unemployment insurance entitlements under other 
law in determining payments, an amendment to a general appropriation 
bill reducing the availability of funds therein for trade adjustment 
assistance by amounts of unemployment insurance did not impose new 
duties upon officials, who were already required to make those 
reductions. The proceedings of that date are discussed in greater 
detail in Sec. 52.36, supra.
---------------------------------------------------------------------------
12. 126 Cong. Rec. 15354-56, 96th Cong. 2d Sess.

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

[[Page 6238]]

Limiting Funds to Administer or Enforce Law With Respect to Small Firms

Sec. 61.22 While an amendment to a general appropriation bill may not 
    directly curtail executive discretion delegated by law, it is in 
    order to limit the use of funds for an activity, or a portion 
    thereof, authorized by law if the limitation does not require new 
    duties or impose new determinations.

    Where an amendment to a general appropriation bill prohibited the 
use of funds therein for the Occupational Safety and Health 
Administration to administer or enforce regulations with respect to 
employers of 10 or fewer employees included in a category having an 
``occupational injury lost work day case rate'' less than the national 
average, except to perform certain enumerated functions and 
authorities, but exempted from the prohibition farming operations not 
maintaining a temporary labor camp, the amendment was held not to 
constitute additional legislation on an appropriation bill.
    The proceedings of Aug. 27, 1980,(13) are discussed in 
Sec. 73.11, infra.
---------------------------------------------------------------------------
13. 126 Cong. Rec. 23519-21, 96th Cong. 2d Sess.
---------------------------------------------------------------------------

Eligibility for Food Stamps Where Principal Wage Earner is on Strike

Sec. 61.23 An amendment to a general appropriation bill prohibiting the 
    use of funds therein for food stamps to a household whose principal 
    wage earner is on strike on account of a labor dispute to which he 
    or his organization is a party, except where the household was 
    eligible for and participating in the food stamp program 
    immediately prior to the dispute, and except where a member of the 
    household is subject to an employer's lockout, was held to impose 
    new duties and require new investigations by executive branch 
    officials and was ruled out as legislation.

    On June 21, 1977,(14) a point of order was sustained 
against an amendment as described above. The proceedings of that date 
are discussed in detail in Sec. 52.45, supra.
---------------------------------------------------------------------------
14. 123 Cong. Rec. 20150-52, 95th Cong. 1st Sess.
---------------------------------------------------------------------------