[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§ 53. Duties Imposed on Nonfederal Officials or Parties]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 6119-6137]
 
                               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. 53.--Duties Imposed on Nonfederal Officials or Parties

    It has been seen that the inclusion in an appropriation bill of 
language that imposes new duties, not authorized in law, on federal 
officials is subject to the point of order that such language is 
impermissible legislation.(20) A more difficult question 
arises where language seems to impose new duties on nonfederal 
officials or on private individuals. Whether the mere imposition of 
certain duties on such parties, without more, constitutes an 
impermissible attempt to legislate, does not clearly emerge from the 
precedents. Many cases which seem to decide the question appear, on 
closer analysis, to turn on somewhat different issues, express or 
implied; perhaps such cases can be better understood if they are 
analyzed in terms of certain issues that were

[[Page 6120]]

implied or assumed in the debate, even if the final ruling was not 
expressly based thereon. The purpose of this section is to address 
these implied issues and to address the apparent inconsistencies in the 
precedents, and to suggest guidelines for future decisions.
---------------------------------------------------------------------------
20. See Sec. 52, supra.
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    It will be noted that, in several precedents that involve local 
officials and address the issue directly, the assumption is made in the 
debate and in the ruling that the test of whether the language in 
question is permissible is whether it seeks to impose duties on 
officials who are in fact ``federal.'' (1) In some 
precedents of this kind, an attempt is made to endow a local official 
or private person with status as a ``federal'' official by virtue of 
his role in receiving, disbursing, or administering federal funds or 
otherwise participating in some manner in the federal program under 
discussion. If such entity can in fact be seen as having federal 
status, the resolution of the issues becomes easier because the rulings 
discussed above (2) are directly applicable.
---------------------------------------------------------------------------
 1. See Sec. Sec. 53.4 and 53.5, infra; and see the ruling of June 23, 
        1971, discussed in the ``Note on Contrary Rulings'' which 
        follows Sec. 53.6, infra.
 2. Sec. 52, supra.
---------------------------------------------------------------------------

    Attempts to impose duties on local officials not having the status 
of direct or indirect beneficiaries would in some cases ``change 
existing law'' by violating fundamental division between state and 
federal authority. In most cases, the ``local officials'' arguably have 
the status of direct or indirect beneficiaries of federal funding 
programs. The question then arises of the applicability of the many 
precedents indicating that ``limitations'' are allowed which seek only 
to require such beneficiaries to undertake certain actions or fulfill 
certain requirements as a condition to receiving the benefits of the 
federal funds. Such provisions, if they do no more than to describe the 
qualifications of persons who are to benefit from federal funds, are 
frequently allowed in appropriation bills.
    The fundamental issue to be addressed in many cases is not the 
status, federal or local, of the official on whom duties are imposed 
but whether the imposition of the duties violates some substantive 
legislative intent, already existing, with respect to the division 
between local or state and federal roles in the administering of 
federal funds. It should be noted here that in one 
instance,(3) the argu

[[Page 6121]]

ment was made in support of a point of order, that issues involved in 
the provisions of the appropriation bill in question had in fact been 
considered in committee as part of the process of devising the 
authorizing legislation, and the substance of the language in the 
appropriation bill had been rejected. In that instance, the Chair 
overruled the point of order, thereby rejecting the suggestion that the 
provisons of the appropriation bill were matters of substantive 
legislation. In the current status of rulings on the subject, however, 
the Chair would probably be more likely to consider evidence that the 
subject matter of proposed language either was in fact taken into 
consideration during the deliberations of a legislative committee, or 
is the type of substantive issue which should be addressed by such a 
committee.
---------------------------------------------------------------------------
 3. See the comments in the ``Note on Contrary Rulings,'' following 
        Sec. 53.6, infra, with respect to the proceedings of Oct. 14, 
        1965.
---------------------------------------------------------------------------

    In any event, it would appear useful in future rulings on the 
issues raised in this section, to focus attention less on the fact that 
officials on whom duties are sought to be imposed are ``local'' and 
inquire instead whether such imposition of duties violates the intent 
of existing law with respect to a substantive plan for a division of 
state and federal responsibility, taking the purposes of existing 
legislation into account. If not, the issue would then be whether the 
language in question constituted a permissible or impermissible attempt 
to attach conditions to be met by prospective direct or indirect 
beneficiaries of funds before they become entitled to the benefits of 
the funds.                          -------------------

Affirmative Directive to Nonfederal Recipient of Funds

Sec. 53.1 An amendment to an appropriation bill in the form of a 
    limitation, allowing the use of funds only if certain actions are 
    taken by nonfederal institutions, was held to be legislation and 
    not in order.

    On Feb. 14, 1936,(4) the Committee of the Whole was 
considering H.R. 11035, a War Department appropriation bill. At one 
point the Clerk read as follows:
---------------------------------------------------------------------------
 4. 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.]. . . .
        Mr. [Fred] Beirmann [of Iowa]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Biermann: On page 59, line 6, 
        after

[[Page 6122]]

        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 authorities 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.''

        Mr. [Tilman B.] Parks [of Arkansas]: Mr. Chairman, I make the 
    point of order that the amendment is legislation on an 
    appropriation bill and is in no sense a limitation. . . .
        Mr. Biermann: Mr. Chairman, the purpose of this amendment is to 
    make an exception of the compulsory feature of this military 
    training for those students who have a genuine conscientious 
    scruple against taking military training. The amendment is of the 
    same piece of cloth as the amendment of the gentleman from New York 
    [Mr. Marcantonio], which has been ruled in order many times in this 
    House.
        The Chairman:(5) The Chair is ready to rule. The 
    first part of the amendment offered by the gentleman from Iowa is 
    very much the same as the amendment offered by the gentleman from 
    New York [Mr. Marcantonio], but there is further language in the 
    amendment offered by the gentleman from Iowa which involves 
    legislation which is as follows:
---------------------------------------------------------------------------
 5. Claude V. Parsons (Ill.).
---------------------------------------------------------------------------

            That unless the authorities of such institutions provide 
        and make known to all prospective students by duly published 
        regulation--

        And so forth. That is an affirmative command and direction to 
    the officers of the institution. The Chair thinks the amendment is 
    not in order because it provides legislation on an appropriation 
    bill, and, therefore, sustains the point of order.

    Parliamentarian's Note: The Chair in this instance attached 
importance to the fact that the amendment gave an ``affirmative'' 
directive to school authorities and not on the determinations which 
would be required on the federal officials allotting the funds to the 
institutions. This raises a question whether merely negative language, 
a denial of funds to schools which do not exempt students as described 
or publish the specified information, would have been permitted. It can 
be argued even in that case that such exemption of students and 
publication of information are matters that more properly belong to the 
substantive legislation. On the other hand, if it can be said that such 
exemptions from military service or courses are already mandated by 
law, so that the condition imposed on the schools is merely one of 
publishing information about students' legal rights, and carrying

[[Page 6123]]

out ministerial duties to fulfill the law's requirements, then the case 
would be similar to that in the ruling of June 24, 1969 (discussed in 
the ``Note on Contrary Rulings,'' following Sec. 53.6, infra), in which 
the conditional language permitted by the Chair merely required 
institutions to be in compliance with law.

Restricting Funds to Farmers Unless They Agree to Use Funds in Certain 
    Way

Sec. 53.2 To a paragraph of an appropriation bill making appropriations 
    for soil conservation payments, an amendment providing that no 
    payment in excess of $1,000 shall be paid to any one person or 
    corporation unless at least one-half of the amounts so paid shall 
    be paid to sharecroppers or renters of farms for which payments are 
    made was held to be legislation and not in order, in that, under 
    the guise of a limitation it provided affirmative directions that 
    imposed new duties.

    On Mar. 28, 1939,(6) the Committee of the Whole was 
considering H.R. 5269, an Agriculture Department appropriation bill. 
The Clerk read as follows:
---------------------------------------------------------------------------
 6. 84 Cong. Rec. 3427, 3428, 76th Cong. 1st Sess.
---------------------------------------------------------------------------

        Amendment offered by Mr. (Francis H.) Case of South Dakota: 
    Page 89, line 9, after the colon, insert ``Provided further, That 
    of the funds in this paragraph no payment in excess of $1,000 shall 
    be paid for any one farm operated by one person: Provided further, 
    That no payment in excess of $1,000 shall be paid to any one person 
    or corporation unless at least one-half of the amounts so paid 
    shall be paid to sharecroppers or renters of farms for which 
    payments are made.'' . . .
        Mr. [Clarence] Cannon of Missouri: Mr. Chairman, I make the 
    point of order against the amendment proposed by the gentleman from 
    South Dakota that it is legislation under the guise of a 
    limitation. . . .
        Mr. Case of South Dakota: Mr. Chairman, this amendment is a 
    limitation on payments; and in the present instance one would have 
    to turn from the gentleman from Missouri as chairman of the 
    subcommittee to the gentleman from Missouri as parliamentarian.The 
    Chair will find the following on page 62 of Cannon's Procedure:

            As an appropriation bill may deny an appropriation for a 
        purpose authorized by law, so it may by limitation prohibit the 
        use of money for part of the purpose while appropriating for 
        the remainder of it. It may not legislate as to qualifications 
        of recipients, but may specify that no part shall go to 
        recipients lacking certain qualifications.

        In this particular instance the qualification is set up for the 
    landlord that he shall give at least half this payment to his 
    sharecropper or renter. Viewed

[[Page 6124]]

    in this light I believe the Chair will find it is a pure 
    limitation.
        Mr. Cannon of Missouri: Mr. Chairman, the proposed amendment 
    couples with the purported limitation affirmative directions and is 
    legislation in the guise of a limitation.
        The Chairman: (7) Cannon's Precedents, page 667, 
    volume 7, 1936, section 1672, states:
---------------------------------------------------------------------------
 7. Wright Patman (Tex.).
---------------------------------------------------------------------------

            An amendment may not under guise of limitation provide 
        affirmative directions which impose new duties.

        The last part of the pending amendment states:

            Unless at least one-half of the amount so paid shall be 
        paid to these croppers or renters of farms for which payments 
        are made.

        It is the opinion of the Chair that this requires affirmative 
    action; therefore the point of order is sustained.

Restricting Funds for Construction Within a State Unless Governor 
    Approves

Sec. 53.3 An amendment to the Department of Interior appropriation bill 
    providing that none of the funds therein may be used for the 
    purchase of material for new construction of electrical generating 
    equipment in any state unless approved by the Governor or board 
    having jurisdiction over such matters, was held to be legislation 
    on an appropriation bill and not in order.

    On Mar. 30, 1949,(8) during consideration in the 
Committee of the Whole of the Department of the Interior appropriation 
bill (H.R. 3838), a point of order was raised against the following 
amendment:
---------------------------------------------------------------------------
 8. 95 Cong. Rec. 3530, 3531, 81st Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. [Ben F.] Jensen [of Iowa]: On page 
        43, line 3, insert: ``None of the funds herein appropriated may 
        be used for the purchase of material for the beginning of any 
        new construction of electrical generating equipment, 
        transmission lines, or related facilities in any State unless 
        approved by the governor, by the board, or commission of the 
        respective States having jurisdiction over such matters.''

        Mr. [Henry M.] Jackson of Washington: Mr. Chairman, I make a 
    point of order against the amendment on the ground that it is 
    clearly legislation on an appropriation bill.

        The Chairman: (9) Does the gentleman from Iowa 
    desire to be heard on the point of order?
---------------------------------------------------------------------------
 9. Jere Cooper (Tenn.).
---------------------------------------------------------------------------

        Mr. Jensen: If the Chair pleases; yes.
        The Chairman: The Chair will hear the gentleman, briefly.
        Mr. Jensen: Mr. Chairman, again I contend, and I am sure 
    rightly so, that my amendment is purely a limitation of 
    appropriation. In many States there are State authorities which 
    pass on such matters as this. They find it is

[[Page 6125]]

    good for the States because of the fact they do not want the 
    Government of the United States to encroach on State rights. So 
    this is in harmony with the programs which are carried on in many 
    of the States at the present time. It is very important and I think 
    for the welfare of this Nation. It is proper and is not legislation 
    on an appropriation bill.
        The Chairman: The Chair is prepared to rule. . . .
        The Chair has examined the amendment and especially invites 
    attention to the following language appearing in the amendment: 
    ``unless approved by the governor, by the board, or commission of 
    the respective States having jurisdiction over such matters.''
        There can be no doubt but what that language would impose 
    additional duties on the governor and the commission and would 
    require affirmative action, therefore it constitutes legislation, 
    and the Chair sustains the point of order.

    Parliamentarian's Note: The more compelling ground for ruling the 
amendment above out of order is that the amendment was an improper 
attempt to interfere with the discretion or authority of federal 
officials, those actually involved in the decision-making process (such 
as the Bureau of Reclamation) with regard to projects which are part of 
a federal program. More precisely, the effect of the amendment was to 
limit the authority of federal officials, not the use of funds 
contained in the bill. Moreover, the provisions here in question may be 
regarded as an attempt to alter fundamental relations, already 
established in existing law, between state and federal entities. Viewed 
in this light, the ruling leaves open the question of whether an 
attempt to impose duties on state officials by establishing conditions 
to be fulfilled by prospective beneficiaries of federal funds is 
impermissible in an appropriation bill.

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

Sec. 53.4 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 ruling of the Chair on June 17, 1977,(10) was that a 
provision in a general appropriation bill requiring new determinations 
by federal officials is legislation and

[[Page 6126]]

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.
---------------------------------------------------------------------------
10. 123 Cong. Rec. 19698, 19699, 95th Cong. 1st Sess.
---------------------------------------------------------------------------

        The Chairman: (11) When the Committee of the Whole 
    rose on Thursday, June 16, 1977, the Clerk had read from section 
    209, line 2, on page 40.
---------------------------------------------------------------------------
11. Richard Bolling (Mo.).
---------------------------------------------------------------------------

        Are there any amendments?
        Mr. [Clifford R.] Allen [of Tennessee]: Mr. Chairman, I have a 
    point of order.
        The Chairman: The gentleman will state it.
        Mr. Allen: Mr. Chairman, I make a point of order against 
    section 209 which states:

            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.

        My point of order is simply that this is legislation in an 
    appropriation act. Obviously and implicitly in this language is the 
    duty on the part of some administrative agency, or on the part of 
    whoever is going to disburse the funds, to ascertain from some 
    physician that the life of the mother or the pregnant woman would 
    be endangered if the fetus is carried to term. This is imposing an 
    additional burden on whatever administrative agency has to carry 
    out this task. On that basis I make a point of order that this is 
    legislation in an appropriation act. . . .
        Mr. [Daniel J.] Flood [of Pennsylvania]: . . . Mr. Chairman, I 
    rise in opposition to the point of order.
        The provision in question here is identical--I repeat for the 
    purpose of emphasis, the provision in question is identical--to the 
    provisions of Public Law 94-439, that is the Labor-HEW 
    Appropriation Act for fiscal year 1977. It does not impose any 
    additional burdens on any officer of the Federal Government. The 
    determination as to whether the life of the mother is endangered 
    would of course be made by a physician, but not a Federal official, 
    and the physician would have to make that determination anyway 
    whether or not this provision is in the bill, and any physician who 
    is treating a woman seeking an abortion would have to make a 
    judgment as to her state of health. . . .
        Mr. [Robert E.] Bauman (of Maryland): Mr. Chairman, in support 
    of the argument presented by the gentleman from Pennsylvania, it 
    should be noted by the Chair that medicaid funds which this section 
    affects are administered by the States and not by the Federal 
    Government.
        In addition to that, the judgment required by section 209 would 
    have to be made by private physicians who might be reimbursed, but 
    it would be State officials who would be doing reimbursing with 
    Federal funds, not Federal officials.
        As the Chair knows, the imposition of additional duties on 
    Federal officials, is a proper test of whether or not the language 
    goes beyond a limitation. In this case it does not involve a 
    judgment by a Federal official, only by a reimbursing State 
    official on the certification in most cases by a private doctor. 
    Therefore I do not believe it imposes any additional duties. It 
    simply is a limitation on the manner in which the funds may be 
    expended. . . .

[[Page 6127]]

        Mr. Allen:. . . [W]hile it is true that medicaid is generally 
    and in most cases administered by State agencies, there are certain 
    exceptions where the Federal Government actually supports clinics 
    across the Nation. But beyond that, it would certainly be incumbent 
    upon the Treasury Department, the auditors, and maybe the General 
    Accounting Office to see to it that indeed the life of the mother 
    whose abortion is paid for out of Federal funds was endangered, 
    which would require certainly a certification or written opinion or 
    opinion of some kind from some competent physician.
        It seems to me clear that it is legislation in an Appropriation 
    Act.
        Now, the fact that it was in last year's Appropriation Act does 
    not make it the law of the land. It was stricken down as 
    unconstitutional by a Federal court already, that very language, 
    and we are undertaking to reimpose it into this act after it has 
    been held unconstitutional and the Department of HEW has instructed 
    all of its agencies across the country to abide by the Federal 
    court decision and not to deny any woman an abortion merely on the 
    grounds that she is a welfare patient and unable to pay for the 
    cost.
        The Chairman: The Chair is prepared to rule.
        In the first place the fact that the same language was in an 
    appropriation act last year gives it no immunity to the point of 
    order.
        The Chair would like to read the section. It is brief:

            Sec. 209. 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.

        Now, there is no limitation in that language to state the use 
    of funds, nor is there any limitation in the language to medicaid.
        The Chair, therefore, feels that the statement, which the Chair 
    will read, is applicable and sound.
        The gentleman from Tennessee has made a point of order against 
    the language in the bill that the Chair has just read on the 
    grounds it is legislation on an appropriation bill.
        The language in question, section 209 of the bill, prohibits 
    the use of funds in the act to perform abortions except where the 
    life of the mother would be endangered if the fetus were carried to 
    term. It is well established that a limitation is not in order on 
    an appropriation bill if it requires new duties and determinations 
    on the executive branch and requires investigations. Section 209 by 
    its terms requires the Federal Government to determine, in each and 
    every case where an abortion may be performed with Federal funds, 
    whether the life of the mother was endangered. Whether or not such 
    determinations are routinely made by practicing physicians on a 
    voluntary basis, the language in the bill addresses determinations 
    by the Federal Government and is not limited by its terms to 
    determinations by individual physicians or by the respective 
    States.
        For the reasons stated, the Chair sustains the point of order.

Sec. 53.5 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 nec

[[Page 6128]]

    essary 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.

    On June 17, 1977,(12) during consideration in the 
Committee of the Whole of H.R. 7555 (Departments of Labor, and Health, 
Education, and Welfare, and related agencies appropriation bill), a 
point of order was sustained against the following amendment:
---------------------------------------------------------------------------
12. 123 Cong. Rec. 19699, 19700, 95th Cong. 1st Sess.
---------------------------------------------------------------------------

        Mr. [Henry J.] Hyde [of Illinois]: Mr. Chairman, I offer an 
    amendment.
        The Clerk read as follows:

            Amendment offered by Mr. Hyde: On page 39, after line 23, 
        add the following new section:

            ``Sec. 209. None of the funds appropriated under this Act 
        shall be used to pay for abortions or to promote or encourage 
        abortions, except where a physician has certified the abortion 
        is necessary to save the life of the mother.''. . .

        Ms. [Elizabeth] Holtzman [of New York]: Mr. Chairman, I make a 
    point of order that the amendment, like the prior one, violates the 
    rules of the House, inasmuch as it contains legislation on an 
    appropriation bill. The duties that are imposed by this amendment 
    on the executive branch would also apply to the care of a physician 
    operating in Federal hospitals directly in the employ of the 
    Federal Government. New duties would be imposed on them to make 
    certifications in order to perform abortions. It seems to me that 
    such duties could not be properly imposed in an appropriations 
    bill. . . .
        Mr. Hyde: . . . Mr. Chairman, I think the well-settled rule 
    that the limitation, if it does not impose a burden on a Federal 
    official or impose a burden on the executive branch, is in order. I 
    think this version of the amendment clearly says we are talking 
    about a physician certifying the abortion as necessary. There is 
    certainly no implication or hint that a member of the executive 
    branch would have to exercise any judgment. . . .
        Mr. [Clifford R.] Allen [of Tennessee]: . . . Mr. Chairman, the 
    language contained in this substitute amendment is the same, in 
    essence, as the original amendment. It does not state what 
    physician or by whom the physician would be paid, but it does 
    require the disbursing officer or the agency that is going to 
    disburse these funds to first obtain a written certification from a 
    physician before disbursing those funds. Thus, it imposes two 
    additional duties; first, on some physician, perhaps a physician 
    paid out of Federal funds or medicaid funds or medicare funds, or 
    whatever, to make this determination. It is the same determination 
    that the other original language carried. Then, in addition, it 
    would require the disbursing officer to ascertain whether or not 
    such a certification was made by a physician before he would be 
    authorized to disburse any funds under this act. . . .
        Mr. [Robert E.] Bauman [of Maryland]: Mr. Chairman, the 
    language

[[Page 6129]]

    substantially changes the section previously before us in that it 
    specifically requires determination by a non-Federal official. The 
    argument advanced that someone in the employ of the Federal 
    Government may have to issue a check or not issue a check for a 
    certain amount is not apposite to this case, because it has been 
    ruled many times that the application of any limitation on an 
    appropriation bill requiring some minimal extra duty such as the 
    disbursement of checks does not fall within a definition of a 
    limitation that goes beyond the rules. . . .
        I would again call to the attention of the Chair that the 
    programs that this would affect, financed in this bill, are 
    programs in which the Federal payments are disbursed by State 
    agencies and State employees, and so the chain of action involved 
    would be a private physician making a determination as to the 
    physical state of the mother, and then informing a State official 
    as to his right to reimbursement. Only after all of that procedure 
    is gone through would a Federal official issue some sort of 
    funding. So, I would think the amendment would be particularly in 
    order as a proper limitation. . . .
        Mrs. [Yvonne B.] Burke [of California]: Mr. Chairman, I would 
    just like to answer the point raised by the gentleman from 
    Maryland, who talked about the financial payments. The point of 
    order was that there were direct agents, employees of the Federal 
    Government, who would have to make this determination.
        We have within this bill employees of public health services; 
    we have military hospital personnel; we have particular provisions 
    for many who are health personnel, who are directly paid by the 
    Federal Government, many of whom are in administrative positions 
    who would be required to make a determination; we have St. 
    Elizabeths Hospital within this bill, and there are many provisions 
    for direct Federal action. . . .
        The Chairman: (13) The Chair is ready to rule.
---------------------------------------------------------------------------
13. Richard Bolling (Mo.).
---------------------------------------------------------------------------

        The gentlewoman from New York makes a point of order against 
    the amendment offered by the gentleman from Illinois on the ground 
    that it constitutes legislation in an appropriations bill. The 
    amendment would prohibit funds in the bill to perform abortions 
    except where the physician involved has certified that the life of 
    the mother was in danger.
        For the reasons stated by the Chair in the just previous 
    ruling, and because the Chair is convinced by the argument of the 
    gentlewoman from New York and the gentlewoman from California that 
    some of the physicians affected by the amendment are Federal 
    officials and would be required by the amendment to perform new 
    duties and determinations not required of them by law, therefore 
    the Chair sustains the point of order.

Requiring State Official to Make Determinations Not Required by Law

Sec. 53.6 An amendment to an appropriation bill prohibiting the use of 
    funds therein for certain stream channelization projects unless the 
    appropriate Governor con

[[Page 6130]]

    siders its environmental effects and certifies to the Secretary of 
    Agriculture that such project is in the public interest was held to 
    impose additional duties on an executive official not already 
    required by existing law and was therefore ruled out in violation 
    of Rule XXI clause 2.

    On June 23, 1971,(14) during consideration in the 
Committee of the Whole of H.R. 9270 (Department of Agriculture and 
environmental and consumer protection appropriation bill) a point of 
order against the following amendment was sustained:
---------------------------------------------------------------------------
14. 117 Cong. Rec. 21647, 21648, 92d Cong. 1st Sess.
---------------------------------------------------------------------------

        The Clerk read as follows:

            Amendment offered by Mr. [Henry S.] Reuss [of Wisconsin]: 
        On page 37, immediately after line 25, insert the following:
            ``No part of the funds appropriated by this Act shall be 
        used for engineering or construction of any stream 
        channelization measure under any program administered by the 
        Secretary of Agriculture unless (1) such channelization is in a 
        project a part of which was in the project construction stage 
        before July 1, 1971; or (2) the Governor of the State in which 
        the channelization is to be located certifies to the Secretary 
        of Agriculture, after consideration of the environmental 
        effects of such channelization, that such channelization is in 
        the public interest.''

        Mr. [Jamie L.] Whitten [of Mississippi]: Mr. Chairman, I make a 
    point of order against the amendment. . . .
        I respectfully suggest, Mr. Chairman, that this language is not 
    a limitation on an appropriation bill, but carries with it the 
    requirements of certain duties by the Governors of the States for 
    certain actions and certain determinations as to whether or not 
    they can be properly made, and therefore brings them within the 
    point of order, which I insist upon. . . .
        Mr. Reuss: . . . Mr. Chairman, the amendment I have offered is 
    clearly and squarely within the precedents. It constitutes an 
    appropriation limitation on an appropriation. The statement of the 
    Chair reported in volume 7 of Cannon's Precedents at page 704, is 
    squarely in point.
        In that matter on May 21, 1918, an amendment was offered to the 
    agriculture appropriation bill saying:

            No part of this appropriation shall be available for any 
        purpose unless there shall have been previously issued the 
        proclamation by the President.

        It then refers to the kind of proclamation that the President 
    may offer.
        Mr. William H. Stafford, of Wisconsin, who, incidentally, was 
    my predecessor in my congressional district, made the point of 
    order that the amendment was legislation, and hence out of order on 
    an appropriation bill.
        The Chair held:

            A different principle from that of germaneness is involved 
        in the point of order to this amendment. If the Chair 
        understands the amendment it is intended as a limitation on the 
        payment of any money under this

[[Page 6131]]

        paragraph until the President has issued a certain indicated 
        proclamation which in his discretion he may or may not issue. 
        This amendment does not compel him to issue it, but so long as 
        it is unissued the House does not propose, if the amendment is 
        adopted, to allow the Agricultural Department to have the 
        benefit of the appropriation in this paragraph. . . .
            This amendment does not compel the President to issue the 
        proclamation referred to. He may issue it or refuse to issue it 
        in his discretion. But the amendment in substance says to the 
        Department of Agriculture: We propose to withhold from you the 
        benefit of this appropriation during the full period of time 
        during which this proclamation is unissued.

        Mr. Chairman, this puts it on all fours with the amendment that 
    I have offered, which leaves it to the Governor of the State to 
    determine whether the channelization project proposed is in the 
    public interest. It does not impose any duty on the Governor. If he 
    acts under this, then the Secretary of Agriculture is governed by 
    it, and there are no additional duties imposed upon the Secretary.
        Mr. Chairman, to the same effect there are numerous other 
    precedents cited. February 24, 1916 there is reported at page 651 
    of 7 Cannon's Precedents a ruling in which the Chair ruled in an 
    almost identical matter that a requirement of a certification by 
    patrons of a rural mail route was not legislation on an 
    appropriation bill, but a permissible limitation. . . .
        The Chairman: (15) The Chair is prepared to rule.
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15. James C. Wright, Jr. (Tex.).
---------------------------------------------------------------------------

        The gentleman from Wisconsin has offered an amendment against 
    which the gentleman from Mississippi makes the point of order that 
    it constitutes legislation on an appropriation bill and, therefore, 
    for that reason is in violation of clause 2, rule XXI.
        The amendment provides that none of the funds appropriated in 
    the act should be used for stream channelization by the Secretary 
    of Agriculture unless the Governor of the State where the channel 
    is to be located considers its environmental effect and certifies 
    to the Secretary that such channelization is in the public 
    interest.
        The question involved is whether or not the amendment seeks to 
    impose additional duties upon an executive or to require from that 
    executive an additional certification not previously authorized in 
    existing law; if it does so, it constitutes legislation under the 
    precedents.
        The Chair has examined the precedent cited by the gentleman 
    from Wisconsin which arose on May 12, 1918. There is some 
    similarity except that the amendment offered on that occasion by 
    the gentleman from California (Mr. Randall) would have provided 
    that no part of the appropriation shall be available until a 
    previously issued proclamation had been made, and following the 
    word ``proclamation'' in the amendment offered on that occasion 
    appear these words: ``authorized by Section 15 of the Act of August 
    10, 1970.''
        Therefore, it appears to the Chair that the precedent cited by 
    the gentleman from Wisconsin is distinguishable from the present 
    case in that the proclamation required in that amendment was one 
    that was already authorized under existing law.

[[Page 6132]]

        The Chair is not aware that the certification and finding 
    required of a Governor by the amendment offered by the gentleman 
    from Wisconsin is required or authorized by existing law.
        The Chair would refer the Committee to the decision by Chairman 
    Jere Cooper, of Tennessee, on March 30, 1949, which the Chair 
    regards to be more in point with the present situation. On that 
    occasion an amendment was offered to the Department of Interior 
    appropriation bill providing that none of the funds might be used 
    for the purchase of certain materials and the beginning of certain 
    new construction unless approved by the Governor or by a board or 
    by a commission of the respective State.
        On that occasion, Chairman Cooper held that this was 
    legislation on an appropriation bill in that it required a 
    determination and imposed a burden upon the Governor which did not 
    previously exist.
        The Chair feels that that decision would be controlling in this 
    instance and, since the present amendment would impose additional 
    duties not existing in present law, in violation of clause 2, rule 
    XXI sustains the point of order.

    Parliamentarian's Note: In several instances, described 
elsewhere,(16) the Chair and others have assumed that the 
test for determining whether provisions imposing new duties are 
legislative in nature, is whether the duties are imposed on federal or 
nonfederal officials. The view that was at least implied in those 
instances was that only where federal officials are given new 
substantial duties to perform does the imposition render the provision 
improper. In the 1971 ruling above, however, the Chair took the view 
that the conferral of new authority on a state official makes the 
provision subject to a point of order. The Chair apparently rejected 
the view that the state official in the present instance could be 
considered in some sense as having the standing of a direct or indirect 
beneficiary, so that the duties to be performed by him were merely 
those conditions he was required to fulfill to receive the benefit of 
the funds in question, and accordingly rejected Mr. Reuss' argument 
that nothing in the provision compelled the official to do anything. It 
is probably useful to consider this precedent as an example of an 
improper attempt to grant new authority to state officials, or of an 
attempt to change a policy affecting fundamental relations, already 
established in existing law, between state and federal entities. 
Nothing in the ruling, of course, is inconsistent with the principle 
that where a contingency is itself au

[[Page 6133]]

thorized, the contingency may be included in an appropriation bill.
---------------------------------------------------------------------------
16. See Sec. Sec. 53.4 and 53.5, supra, and the ruling of June 23, 
        1971, which is discussed in the ``Note on Contrary Rulings'' 
        below.
---------------------------------------------------------------------------

Note on Contrary Rulings

    As indicated above,(17) the precedents just discussed 
represent the line of authority that is in consonance with modern 
precedents. What follows is a discussion of some rulings, particularly 
earlier rulings, that seem to conflict in some degree with the 
principles stated in the precedents discussed above.
---------------------------------------------------------------------------
17. See the introduction to this section (Sec. 53), supra.
---------------------------------------------------------------------------

    On June 27, 1952,(18) an amendment to a bill relating to 
housing projects was introduced for purposes of ensuring that certain 
types of projects would be approved by local officials. In response to 
a point of order, the Chair ruled that, to a general appropriation 
bill, an amendment providing that no part of an appropriation for 
defense housing could be used for administrative expenses or salaries 
of the Public Housing Administration, so long as that agency proceeded 
with certain types of projects not approved by local officials, was a 
proper limitation and therefore in order. The amendment would now 
probably be deemed a change in existing law, since the authorizing law 
relating to defense housing was in the nature of an open-ended 
directive to the President to build permanent housing around defense 
installations; no local approval of projects was required. It should 
also be noted with regard to this ruling that, although the Chair held 
the amendment to be germane, such ruling would now at least be 
arguable.
---------------------------------------------------------------------------
18. 98 Cong. Rec. 8353, 82d Cong. 2d Sess. Under consideration was H.R. 
        8370, a supplemental appropriation bill.
---------------------------------------------------------------------------

    On Oct. 14, 1965,(19) the ruling of the Chair was that 
language in a supplemental appropriation bill providing funds for the 
rent-supplement program and specifying that ``no part of the . . . 
appropriation or contract authority shall be used'' in any project not 
part of a ``workable program for community improvement'' (as defined in 
the Housing Act of 1949), or which is without local official approval, 
was held to be a proper limitation and in order. The argument was made 
by Mr. Thomas L. Ashley, of Ohio, that the issues raised by the 
language in question ``were the subject of discussion and, indeed, 
proposed amendments at the time the housing bill was debated and 
considered ear

[[Page 6134]]

lier this year. The amendments which sought to accomplish the same 
objective were rejected.'' Thus, it would seem that the language in 
question was an example of an attempt to change the underlying purposes 
or policy of legislation, such policy having been duly considered. The 
Chair, however, apparently rejected Mr. Ashley's arguments and, in 
overruling a point of order against the language, noted that no 
additional duties were imposed on the administration by the proviso.
---------------------------------------------------------------------------
19. 111 Cong. Rec. 26994, 89th Cong. 1st Sess. Under consideration was 
        H.R. 11588.
---------------------------------------------------------------------------

    On Mar. 29, 1966,(20) the Chair ruled that language in a 
general appropriation bill providing funds for the National Teacher 
Corps, specifying that ``none of these funds may be spent . . . prior 
to approval . . . by the state educational agency'' was a proper 
limitation restricting the availability of funds and was therefore in 
order. Arguments that the Chair found persuasive were to the effect 
that, because of the conditional nature of the language, no additional 
duties were affirmatively required. The weight of authority at present, 
however, seems to be that the conditional nature of such language would 
not prevent a finding by the Chair that existing law is sought to be 
changed thereby.(1)
---------------------------------------------------------------------------
20. 112 Cong. Rec. 7118, 7119, 89th Cong. 2d Sess. H.R. 14012, a 
        supplemental appropriation bill, was under consideration.
 1. See, for example, Sec. Sec. 47-50, supra, discussing appropriations 
        subject to conditions.
---------------------------------------------------------------------------

    On June 11, 1968,(2) the Chair seemed to indicate that, 
although it is not in order by way of a limitation to impose new duties 
on an executive officer, it is permissible to make the payment of funds 
contingent upon the performance of certain obligations by private 
citizens or other persons not in the government's employ. For example, 
to a general appropriation bill, including funds for the Treasury 
Department, an amendment providing that none of the funds therein shall 
be used for any expense in connection with customs clearance or import 
licenses for rifles which are not registered with the Commissioner of 
Customs, was held to be a proper limitation and in order. In its 
ruling, the Chair stated, ``The Chair . . . would interpret the 
amendment as not imposing any additional duties of a ministerial sort 
upon the Commissioner of Customs, but rather upon the importer or 
holder of the license.'' The ruling might thus be understood as an

[[Page 6135]]

example of the fine distinctions sometimes required between (1) cases 
in which legitimately imposed qualifications of potential recipients of 
benefits requiring federal expenditures might include certain initial 
actions to be taken by the potential recipients as part of the 
qualifying process, and (2) those cases in which requirements sought to 
be imposed in appropriation bills amount to legislative changes.
---------------------------------------------------------------------------
 2. 114 Cong. Rec. 16712, 90th Cong. 2d Sess. Under consideration was 
        H.R. 11734, a supplemental appropriation bill. See also 
        Sec. 52.5, supra.
---------------------------------------------------------------------------

    The qualifications of a nonfederal recipient of federal funds were 
also an issue in the ruling of June 24, 1969.(3) The Chair 
on that date ruled that, while an amendment under the guise of a 
limitation may not require affirmative action or additional duties on 
the part of federal officials, it is in order on a general 
appropriation to deny funds to a nonfederal recipient of a federal 
grant program unless the recipient is in compliance with a provision of 
federal law already applicable to it; for such a requirement places no 
new duties on a federal official (who is already charged with 
responsibility for enforcing the law) but only on the nonfederal 
grantee. The amendment in question stated that ``none of the funds 
appropriated by this act for payments authorized by section 1705 of the 
Housing and Urban Development Act of 1968, shall be used to formulate 
or carry out any grant or loan to any institution of higher education 
unless such institution shall be in full compliance with section 504 of 
Public Law 90-575.'' (4)
---------------------------------------------------------------------------
 3. 115 Cong. Rec. 17085, 91st Cong. 1st Sess. Under consideration was 
        H.R. 12307, a general appropriation bill.
 4. Section 504 of Pub. L. No. 90-575, which was concerned with 
        eligibility for student assistance, stated in part that 'if an 
        institution of higher education determines . . . that [an] 
        individual has been convicted (of certain crimes) then the 
        institution . . . shall deny . . . further payment . . . for 
        the direct benefit of [the individual under the programs 
        specified].''
---------------------------------------------------------------------------

    On June 23, 1971,(5) the Chair indicated the applicable 
principle to be that, where language on an appropriation bill 
restricting the availability of funds therein for certain purposes or 
to certain recipients requires an executive official to determine the 
applicability of that restriction in a specific case, it must be shown 
that such official is not being called upon to perform substantial 
duties in addition to those required by law.

[[Page 6136]]

The ruling of the Chair in this instance was that an amendment to an 
appropriation bill prohibiting the use of funds in the bill for making 
food stamps available during a strike to a household ``which needs 
assistance solely because any member of such household is a participant 
in such strike'' was in order as a valid limitation which did not 
impose substantial affirmative duties on executive officials. As in the 
June 17, 1977, precedents,(6) the implied assumption in the 
discussion of the point of order on June 23, 1971, was that the test 
for allowing the amendment was whether or not it imposed additional 
duties on federal officials. The ruling supports the view that, where 
the conditions stated in an appropriation bill can be seen merely as 
those which prospective recipients or beneficiaries must fulfill in 
order to qualify as proper beneficiaries, the conditions will be 
allowed. (The Holman rule, mentioned in debate, is not strictly 
applicable here, since the question in applying the Holman rule is not 
whether the provision in question is legislative in nature; the 
question is whether a provision which is admittedly legislative in 
nature is to be permitted because it fulfills the precise requirements 
of the Holman rule exception to the general rule against legislation on 
appropriation bills.) It should also be noted with regard to this 
ruling that, during argument on the point of order, Mr. James G. 
O'Hara, of Michigan, argued that the official administering the program 
under the proposed amendment would have the additional burden of 
determining whether a potential recipient needed food stamps solely 
because a family member was on strike, or whether there were other 
reasons or motives for such action. The Chair apparently accepted the 
view of Mr. Robert H. Michel, of Illinois, that such a determination 
would be made by officials administering the program at the local 
level, who would certify that finding to the federal administrators. As 
noted elsewhere, however,(7) terms requiring definition, or 
terms which relate to motive, intent, and the like, when used in 
general appropriation bills or amendments thereto, frequently raise the 
presumption that the language of a proviso is legislative in nature.
---------------------------------------------------------------------------
 5. 117 Cong. Rec. 21671, 21672, 92d Cong. 1st Sess. Under 
        consideration was H.R. 9270, agriculture, environmental, and 
        consumer protection appropriations for fiscal 1972.
 6. See Sec. Sec. 53.4 and 53.5, supra.
 7. See, for example, Sec. Sec. 25.14 and 50, supra.
---------------------------------------------------------------------------

    In another case of interest on this subject, the Chair ruled on 
Jan. 31, 1941,(8) that an amend

[[Page 6137]]

ment forbidding payments or allowances for an operating differential 
subsidy as provided in the Merchant Marine Act of 1936, as amended, on 
any vessel unless the owners or operators of such subsidized vessels 
shall have filed with the U.S. Maritime Commission a certificate 
setting forth certain information relative to employees on such 
vessels, was a proper limitation and in order. The amendment, it should 
be noted, required extensive certifications by nonfederal recipients, 
not required by existing law. No argument was advanced that the 
reporting requirements were tantamount to a change in existing law.
---------------------------------------------------------------------------
 8. 87 Cong. Rec. 448, 449, 77th Cong. 1st Sess. Under consideration 
        was H.R. 2788, an independent offices appropriation bill.
---------------------------------------------------------------------------

    In conclusion, it should be remembered that, while some rulings may 
suggest that it is permissible to make the payment of funds contingent 
upon the performance of certain acts or obligations by private citizens 
or other persons not in the federal government's employ, recent rulings 
indicate that it is not in order to make the availability of funds in a 
general appropriation bill contingent upon a substantive determination 
by a state or local government official or agency which is not 
otherwise required by existing law.(9)
---------------------------------------------------------------------------
 9. See, for example, the ruling at 131 Cong. Rec. ----, 99th Cong. 1st 
        Sess., July 25, 1985, during proceedings relating to H.R. 3038 
        (HUD, independent agencies appropriations for fiscal 1986).
---------------------------------------------------------------------------